Before the High Court of Kerala, one of the prominent arguments of the appellant was that he was reconvicted by the same court for a second offense under the Narcotic Drugs and Psychotropic Substances Act, 1985 and, hence, he is authorized to receive the sentence imposed by the judgment under challenge run synchronously. The recent appeal argued against his prior conviction, in 2013, by the Trial Court.
With regards to the provisions of Section 427 of the Code, Justice K. Haripal noted that, in order to bring it into power, the following conditions must be satisfied:
1. A person already undergoing a sentence of imprisonment stands convicted;
2. While undergoing such sentence such a person is subsequently convicted and awarded the sentence of imprisonment including imprisonment for life; of the imprisonment to
3. Such imprisonment of rigorous imprisonment for life shall commence at the expiration which he has been previously sentenced; and,
4. The court directs that subsequent sentence shall run concurrently with such a previous sentence.
The Court did not pay heed to the appellant's argument that a punishment imposed on the appellant on an earlier date, can run together along with a punishment sentence pressed on him long after imposing the first one. The Court noticed that the advantage of Section 427 should not be granted for transactions that are not related. In regards to these cases, the sentences should run one after the other. While dismissing the appeal, it opined:
"That is against the very purport of the statute. It should be the other way round. When the latter judgment was pronounced, the appellant should have brought the earlier conviction to the notice of the court and should have prayed for running the sentences concurrently, so that, if accepted, the appellant would have saved four years’ imprisonment. That power is vested with the court imposing the subsequent imprisonment or its appellate court."
Granting of prayer for concurrency depends on facts and circumstances of each case and the benefit under Section 427 of the Code can be claimed only before the Court trying the subsequent offenses. Direction to run concurrently can be given only in appropriate cases by the Court imposing subsequent sentence of imprisonment; the appellate court dealing with subsequent conviction also can exercise the jurisdiction. In appropriate cases, such a benefit can be given by the High Court also, in the exercise of its inherent jurisdiction under Section 482 of the Code.
To put it in other words, seeking such a relief from the court dealing with the first conviction is totally out of place."
Case name: MUSHTHAFA vs. THE SUB INSPECTOR OF POLICE
Coram: JUSTICE K.HARIPAL
Counsel: Adv. SUNNY MATHEW and PP D. CHANDRASENAN