MEHRAJ BIBI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner is caught in a legal limbo. Vide judgment dated 15.03.2004, passed by Special Court, NDPS, Banswara, she was convicted for offences under Ss. 8/18 and 8/21 of the Narcotics Drugs & Psychotropic Substance Act, (in short, "the Act"). For the former offence, she was sentenced to five years of rigorous imprisonment and was imposed with a fine of Rs. 10,000/ - and to further undergo two months of simple imprisonment in default thereof. For the latter offence, she was equally sentenced to five years of rigorous imprisonment and was imposed with a fine of Rs. 10,000/ - and to further undergo two months of simple imprisonment in default thereof. However, the learned trial Court did not specify whether these two sentences are to run concurrently, or consecutively. Initially, the petitioner filed the present petition as Habeas Corpus Petition contending that since she has served five years of rigorous imprisonment, she is being illegally detained by the respondents. However, vide order dated 09.01.2006, the learned Division Bench of this Court directed the petition be placed before a Single Bench. Hence, this petition before this Court.

(2.) The brief facts of the case are that on 30.06.2000, in the night, around 9 O'clock, the police received an information that a woman would be travelling from Gujarat, in a bus. She will be carrying two kilogram of opium and two hundred fifty grams of heroin from Pratapgrah to Banswara. Upon receiving this information, the police posted its officers at the Surpur village on the Pratapgarh -Banswara road. On 01.07.2000, around 9.00 A.M., a private bus, bearing registration No.RJ09/Pl 015, was coming from Pratapgarh to Banswara. The police intercepted the bus and searched it. On seat No. 19, a woman was found sitting in suspicious circumstances. The woman, the petitioner before this Court, was carrying a bag, which she identified as her own. The said bag was searched and in the bag 2.100 Kg. of opium and about 200 grams of heroin powder was found. She was subsequently charged for offences under Ss. 8/18 and 8/21 of the Act. After going through the oral and documentary evidence, she was convicted and sentenced as mentioned above. However, the learned trial Court did not specify whether her sentence for two distinct offences are to run concurrently or consecutively. Therefore, on 13.04.2004, the Dy. Superintendent of Police, Central Jail, Jaipur sent a letter to the trial Court inquiring whether the petitioner would be required to serve her sentence consecutively or concurrently. Vide letter dated 14.05.2004, the learned trial Court directed that "the sentence as contained in the warrant should be carried out in accordance with law". Since the petitioner had spent almost four years as an under trial prisoner and since she was entitled to have the said period included in her period of sentence, by 2005, she had completed five years of her sentence. Since the learned trial Court is ambivalent about the manner in which the two sentences are to run, the petitioner has moved the present petition before this Court with the prayer that the sentences should run concurrently.

(3.) Mr. Ravi Yadav, the learned counsel for the petitioner has argued that Sec. 31 of the Criminal Procedure Code (in short, 'Cr.P.C.') deals with sentence in case of conviction of several offences at one trial. Moreover, Sec. 71 of IPC demarcates the limits of punishment for offence made for several sentences. Relying upon on the case of Mohd. Akhtar Hussain v/s. Assistant Collector of Customs reported in : AIR 1988 SC 2143, the learned counsel had argued that in case of offences being committed in the same transaction, the thumb rule is that the sentences should run concurrently and not consecutively. According to the learned counsel, both the offences under Ss. 8/18 and 8/21 of the NDPS Act were committed by the petitioner in the same transaction. Therefore, the learned trial Court should have directed that the sentences would run concurrently. Secondly, in case, the sentences were to run concurrently, then the petitioner has already completed the sentence imposed for both the offences. Therefore, she should be set at liberty forthwith by this Court. Thirdly, in the judgment dated 04.03.2004, the learned trial Court has not expressed its opinion whether the sentences are to run concurrently or consecutively. Therefore, the power granted under Sec. 31 of Cr.P.C. has not been exercised by the learned trial Court. Even in the letter dated 14.05.2004, the learned trial Court had directed that the sentences shall run "in accordance with law". But Sec. 31 of Cr.P.C. gives two options to the learned trial Court to either direct that the sentences shall run consecutively or concurrently. Thus, the words "in accordance with law", are vague. Lastly, the petitioner happens to be a lady who belongs to a poor family and was acting as a mere carrier of contraband drugs. The reformative theory of punishment does not warrant long sentence of imprisonment. The petitioner has already undergone eight years of imprisonment. Her further incarceration would not reform her as a convict. In fact, it would prevent her from returning back to the mainstream of the society. The purpose of incarceration is not to lock up a person within the stone walls of a prison. The purpose of imprisonment is to ensure that the convicted prisoner is reformed to the point that he/she can return to the mainstream of the society as a contributory member and as a law -abiding citizen.