DEO NARAYAN THANVI,J. - (1.) This Misc. Petition has been filed under Section 482 Cr.P.C., whereby the petitioner Hardayal Singh alias Pradeep Kumar alias Dhala S/o Charan Singh, by caste Jat Sikh, resident of village Pindori, Distt. Amritsar, has prayed for passing appropriate order on sentences to run concurrently, passed by two different Courts on different dates. One is the judgment in Sessions Case No. 37/1993 "State v. Hardayal Singh and Ors." delivered by the Addl. Sessions Judge No. 1, Sriganganagar on 15.10.2004, whereby accused Hardayal Singh was convicted for the offences under Sections 8/21 and 8/23 of the N.D.P.S. Act and sentenced to 20 years' R.I. and a fine of Rs. 2 Lacs and in default, to further undergo one year's R.I. on each count. In another judgment in Criminal Case No. 27/1998 (85/1998) dated 19.7.2003, accused Hardayal Singh was sentenced to five years' S.I. and a fine of Rs. 10,000/- and in default, to further undergo six months' S.I. under Section 135(1)(i) of the Customs Act. It is submitted by the learned counsel for the petitioner that in both the cases, the occurrence is of 17.1.1989 at 11.30 P.M. at Bridge No. 19 of the Canal situated at Indo Pak Border from where 125 gold biscuits of the foreign trademark and ten packets of Heroin were recovered. So far as the recovery of Heroin is concerned, he was tried under the N.D.P.S. Act and was sentenced to 20 years and in appeal, his sentence was reduced to 10 years and in the recovery of 125 gold biscuits of foreign trade mark, he was tried under Section 135(1)(i) of the Customs Act and sentenced to five years' S.I. on different dates.
(2.) While relying upon the decision of the Hon'ble Supreme Court with regard to applicability of Section 428 Cr.P.C. in State of Maharashtra v. Najakat Ali Mubarak Ali reported in 2001 SCC (Cri.) 1106, it has been submitted by the learned counsel for the petitioner that when the incident is of the same date and time and the recovery is the common, in both the cases, the sentences should be run concurrently. In the cited case, the Hon'ble Supreme Court gave different view on the applicability of Section 428 Cr.P.C. Per Thomas J., the scope of Section 428 Cr.P.C. was discussed as hereinbelow : "Reading Section 428 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The word "of the same case" were used to refer to the pre- sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words. It must therefore, be held that Section 428 of the Code permits the accused to have the period undergone by him in jail as an undertrial prisoner set off against the period of sentence imposed on him irrespective of whether he was in jail in connection with the same case during that period."
(3.) The view of Hon'ble Tomas, J. was concurred by Hon'ble Phukan, J. but Hon'ble Sethi, J. dissented with the view. Since the majority view of awarding sentence in both the cases concurrently was adopted by the Hon'ble Supreme Court and it has been followed by this Court in Narayan v. State of Rajasthan reported in 2004(2) R.Cr.D. 464 (Raj.), I am fortified by the view taken in the cited case that the words "of the same case" is not confined to the case in hand but earlier or subsequent case in which sentence is imposed. The scope of Section 428 Cr.P.C. according to the cited judgment is that it permits the accused to have the period undergone by him in jail set off against the period of sentence imposed on him irrespective of whether he was in jail in connection with the same case during that period. This provision was introduced for the first time under the Code of Criminal Procedure, 1973 and under the statements of objects of the Bill, it was clear that the person was given the right to reckon the period of his sentence in jail during under trial.;