1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION No.8594/05 (Smt. Mehraj Bibi V/s. State of Rajasthan & Anr.) Date of Judgment :: 20.11.2008 HON'BLE MR.JUSTICE R.S. CHAUHAN Mr. Ravi Yadav for the petitioner. None for the respondent. The petitioner is caught in a legal limbo. Vide judgment dated 15.03.2004, passed by Special Court, NDPS, Banswara, she was covicted for offences under Sections 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 was 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 2 as Habes 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. 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 Pratpgrah 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 AM, a private bus, bearing registration No.RJ 09/P 1015, was coming from from Pratpgarh 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 indentified 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 Sections 8/18 and 8/21 of the Act. After going through 3 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 undertrial 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 ambivilant 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 sentneces should run concurrently. Mr. Ravi Yadav, the learned counsel for the petitioner has argued that Section 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, Section 71 of IPC demarcats the limits of punishment for 4 offence made for several sentences. Relying upon on the case of Mohd. Akhtar Hussian V/s. Assistant Collector of Customs reported in [AIR 1988 SC 2143], the learned counsel has argued that in case of offence 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 Sections 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 sentneces are to run concurrently or consecutively. Therefore, the power granted under Section 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 Section 31 of Cr.P.C. gives two options to the learned trial Court to either direct that the setences shall run consecutively or concurrently. Thus, the words "in accordance with law", are vague. Lastly, the 5 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. Mr. Shyam Arya, the learned Government Advocate, was directed to appear and to argue this case. However, for reasons best known to him, he has not appeared before this Court. Therefore, this Court has no option but to proceed ex parte. In any society, and specially in a political state professing democracy, the life and personal liberty of a citizen are paramount. Article 21 of the Constitution of India vigilently defends the concept of life and personal liberty. 6 The said Article proclaims that the life and personal liberty of a person shall not be denied by State except by following the procedure established by law. While explaining the ambit and scope of the said Article, the Hon'ble Supreme Court in catena of cases, beginning with the case of Maneka Gandhi V/s. Union of India reported in AIR 1978 SC 597 has explained the ambit and scope of Art. 21 of the Constitution of India, to include the entire concept of "due process of law". Therefore, while curtailing personal liberty by imposing imprisonment, the sentence of punishment has to be reasonable, just and fair. It is not only the requirement of the constitutional mandate, but is also a necessary element contained in the reformative theory of punishment. In fact, the convicted prisoner learns better skill for committing crime and graduates as hard in criminals from the jail. Therefore, while awarding a sentence, the learned trial Court should be aware of both the constitutional mandate and of the latest theories of punishment. In the case of Mohd. Akhtar Hussian (supra), the Hon'ble Supreme Court had laid down a thumb rule for Section 31 of Cr.P.C. The Hon'ble Supreme Court had observed that the "basic rule of thumb over the years has been the so called single transaction rule for concurrent 7 sentneces. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offence is not the same or the facts constituting the two offences are quite different." Similar judicial thinking has been expressed by this Court in Karamveer Vs. State of Rajasthan [2006 (3) WLC 386]. In the present case, the two offences for which the petitioner was tried, was committed in the same transaction, namely in carrying the contraband drugs on a bus. Therefore, while applying the thumb rule, the learned trial Court should have directed that the setences shall run concurrently and not consecutively. Hence, this Court has no hesitation in observing that the sentences awarded by the learned trial Court should run concurrently and not consecutively. Considering the fact that the petitioner has already completed more than five years of imprisonment, this Court directs that the petitioner should be set at liberty forthwith, if she is not required to be detained in any other case. 8 Consequently, the writ petition is, hereby, allowed. (R.S.CHAUHAN),J. a.asopa/