# Anil Kumar v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 1409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-19
- **Case number:** Habeas Corpus Writ Petition No. 1059 of 2023
- **Bench:** Siddhartha Varma, Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-v-state-of-u-p-anr-51596
- **Pages:** 12

## Headnote

Criminal Law -Habeas Corpus - Code of
Criminal Procedure, 1973 - Section 427(1)
- Concurrent Sentences - Narcotic Drugs
and Psychotropic Substances Act, 1985 -
Section 20(B)(II)(C) - U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 3(1) - Petitioner, convicted
under NDPS Act (Sessions Trial No. 19/2013, 12
years
imprisonment,
22.07.2015)
and
subsequently under Gangsters Act (Sessions
Trial No. 28/2013, 5 years imprisonment,
29.02.2016) based on the same NDPS offence,
sought release via habeas corpus, alleging
illegal detention despite bail granted in NDPS
appeal
(Criminal
Appeal
No.
4024/2015,
09.08.2023).
Trial
court
failed
to
apply
discretion under Section 427(1) Cr.P.C. to direct
concurrent running of sentences. Relying on
Iqram Vs St. of U.P. (2023) 3 SCC 184, Benson
Vs St. of Kerala (2016) 10 SCC 307, Anil Kumar
Vs St. of Punj. (2017) 5 SCC 53, Vicky Vs St.
(NCT of Delhi) (2020) 11 SCC 540, and VSK.
Bansal Vs St. of Har. (2013) 7 SCC 211, the
court held that High Court, under Article 226,
can exercise discretion under Section 427(1)
Cr.P.C. to direct concurrent sentences when
subsequent conviction arises from the same
transaction without further overt act. Sentences
ordered to run concurrently, entitling petitioner
to release per bail order, as he has been in
custody since 05.08.2013. Distinguished Mohd.
Zahid Vs St. (2022) 12 SCC 426, where
concurrent sentences were denied for distinct
NDPS offences. St. directed to recalculate
sentence period and release petitioner forthwith
if not required in other cases. Petition allowed.
(Paras 2-15)

Petition Allowed.

Case Law Cited:

## Text

_Characters 0–39,989 of 41,129. This is a partial read: ask again with offset=39989 for what follows._

3 All. Anil Kumar Vs. State of U.P. & Anr.
1409
F.I.R. dated 03.11.2023 is also stated to
have been lodged by the respondent No. 2,
registered as Case Crime No. 103 of 2023,
under Sections 420 and 34 I.P.C., Police
Station Khajuriya, District Rampur, in
which the respondent No. 3 has been
named as an accused.

11. The pendency of the aforesaid
criminal cases is indicative of the acrimony
and the strained relationship between the
parties.

12. In an application seeking a writ of
habeas corpus for custody of minor child,
as is the case herein, the principal
consideration for the court would be to
ascertain whether the custody of the child
can be said to be unlawful and illegal and
whether his welfare requires that the
present custody should be changed and the
child should be handed over in the care and
custody of somebody else other than in
whose custody he presently is.

13. The role of the High Court in
examining cases of custody of a minor, in a
petition for a writ of habeas corpus, would
have to be on the touchstone of the
principle of parens patriae jurisdiction and
the paramount consideration would be the
welfare of the child. In such cases the
matter would have to be decided not solely
by reference to the legal rights of the
parties but on the predominant criterion of
what would best serve the interest and
welfare of the minor.

14. In a child custody matter, a writ of
habeas corpus would be entertainable only
where it is established that the detention of
the minor child is illegal and without
authority of law. In a writ court, where
rights are determined on the basis of
affidavits, in a case where the court is of a
view that a detailed enquiry would be
required, it may decline to exercise the
extraordinary jurisdiction and direct the
parties to approach the appropriate forum.

15. Having regard to the entirety
of the facts, the rule nisi issued earlier is
discharged.

16. The habeas corpus petition is
dismissed.

17. The petitioner No. 1 (corpus)
would be at liberty to go along with the
respondent No. 3 (his father) to the place
from where he has been brought.

18. They shall be accompanied by the
police officer, in safety, but free.

19. It is made clear that the
observations made, hereinabove, are prima
facie in nature and would not preclude the
parties from agitating their claims for
guardianship and custody before the
appropriate forum.
----------
(2024) 3 ILRA 1409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE ANISH KUMAR GUPTA, J.

Habeas Corpus Writ Petition No. 1059 of
2023

Anil Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Grijesh Kumar Shukla
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
G.A.

Criminal Law -Habeas Corpus - Code of
Criminal Procedure, 1973 - Section 427(1)
- Concurrent Sentences - Narcotic Drugs
and Psychotropic Substances Act, 1985 -
Section 20(B)(II)(C) - U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 3(1) - Petitioner, convicted
under NDPS Act (Sessions Trial No. 19/2013, 12
years
imprisonment,
22.07.2015)
and
subsequently under Gangsters Act (Sessions
Trial No. 28/2013, 5 years imprisonment,
29.02.2016) based on the same NDPS offence,
sought release via habeas corpus, alleging
illegal detention despite bail granted in NDPS
appeal
(Criminal
Appeal
No.
4024/2015,
09.08.2023).
Trial
court
failed
to
apply
discretion under Section 427(1) Cr.P.C. to direct
concurrent running of sentences. Relying on
Iqram Vs St. of U.P. (2023) 3 SCC 184, Benson
Vs St. of Kerala (2016) 10 SCC 307, Anil Kumar
Vs St. of Punj. (2017) 5 SCC 53, Vicky Vs St.
(NCT of Delhi) (2020) 11 SCC 540, and VSK.
Bansal Vs St. of Har. (2013) 7 SCC 211, the
court held that High Court, under Article 226,
can exercise discretion under Section 427(1)
Cr.P.C. to direct concurrent sentences when
subsequent conviction arises from the same
transaction without further overt act. Sentences
ordered to run concurrently, entitling petitioner
to release per bail order, as he has been in
custody since 05.08.2013. Distinguished Mohd.
Zahid Vs St. (2022) 12 SCC 426, where
concurrent sentences were denied for distinct
NDPS offences. St. directed to recalculate
sentence period and release petitioner forthwith
if not required in other cases. Petition allowed.
(Paras 2-15)

Petition Allowed.

Case Law Cited:

1. Anil Kumar Vs St. of Punj., (2017) 5 SCC 53
(Paras 4, 9, 14)

2. Benson Vs St. of Kerala, (2016) 10 SCC 307
(Paras 4, 8, 14)
3. Vicky Vs St. (NCT of Delhi), (2020) 11 SCC
540 (Paras 4, 10, 14)

4. Iqram Vs St. of U.P., (2023) 3 SCC 184
(Paras 4, 11, 14)

5. Mohd. Zahid Vs St., (2022) 12 SCC 426
(Paras 5, 12)

6. VSK. Bansal Vs St. of Har., (2013) 7 SCC 211
(Paras 8, 9, 10, 14)

7. Mohd. Akhtar Hussain Vs Collector of
Customs, (1988) 4 SCC 183 (Para 10)

8. St. of Punj. Vs Madan Lal, (2009) 5 SCC 238
(Para 10)

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Grijesh Kumar Shukla,
learned counsel for the applicant and Sri
Rahul Asthana, learned A.G.A. for the
State.

2. The petitioner, before this Court,
has filed the instant Habeas Corpus Writ
Petition through his father, Prakash. In this
writ petition, the petitioner has submitted
that he was implicated in Case Crime No.
47 of 2013 under Section 18/20 of the
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985 (hereinafter referred
as 'the NDPS Act'), P.S.- Sikandra, District-
Kanpur Nagar Dehat and he is in jail since
05.08.2013. The said Case Crime No. 47 of
2013 had resulted in Sessions Trial No. 19
of 2013 and the petitioner herein was
convicted vide judgement and order dated
22.07.2015 under Section 20(B)(II)(C) of
the NDPS Act and the petitioner was
sentenced to undergo 12 years rigorous
imprisonment with a fine of Rs. 1,00,000/-.
Against the said judgement and order dated
22.07.2015, the petitioner herein had filed
an appeal being Criminal Appeal No. 4024
3 All. Anil Kumar Vs. State of U.P. & Anr.
1411
of 2015 (Anil Kumar Vs. State of U.P.),
wherein during the pendency of the appeal,
vide order dated 09.08.2023, the petitioner
herein has been directed to be released on
bail. It is further submitted on the basis of
the aforesaid Case Crime No. 47 of 2013,
on 31.07.2013, another Case Crime No.
200 of 2013 was also registered against the
petitioner herein under Section 3(1) of the
Uttar Pradesh Gangsters and Anti-Social
Activities
(Prevention)
Act,
1986
(hereinafter referred as 'the Gangsters Act').
In the said case, the said Case Crime No.
200 of 2013 had resulted in Sessions Trial
No. 28 of 2013 wherein he was convicted
and sentenced for a five years rigorous
imprisonment and fine of Rs. 5,000/- vide
judgement and order dated 29.02.2016.
Learned counsel for the petitioner submits
that since in the subsequent conviction and
sentence vide judgement and order dated
29.02.2016, learned trial court has failed to
take note of his previous conviction and
sentence awarded in Case Crime No. 47 of
2013, therefore, learned trial court has
failed to apply its discretion as provided
under Section 427 (1) of Cr.P.C. Therefore,
the petitioner is not being released from jail
despite the bail order granted by this Court
in Criminal Appeal No. 4024 of 2015 as the
Jail Authorities consider that both the
sentences awarded to the petitioner herein
shall run consecutively.

3. Learned counsel for the petitioner
submits that in view of the subsequent
conviction under the provisions of the
Gangsters Act, wherein he had been
awarded and sentenced for five years
rigorous imprisonment as the provisions of
the Gangsters Act have been imposed only
on the basis of the base case under the
NDPS Act, he was entitled for the benefit
under Section 427 of Cr.P.C., whereby his
sentence under the provisions of the
Gangsters Act ought to have been directed
to run concurrently.

4. Learned counsel for the petitioner
has argued that when the petitioner had
been released on bail in the NDPS Act, the
base case on the basis of which the
Gangsters Act was imposed and tried, the
petitioner be released as it would be
deemed that the sentence which was
imposed in Sessions Trial No. 28 of 2013,
would run concurrently. Relying upon the
judgement of the Supreme Court in Anil
Kumar v. State of Punjab, (2017) 5 SCC
53, he has submitted that a person who is
already
undergoing
sentence
of
imprisonment, when he is sentenced on a
subsequent conviction to imprisonment,
such subsequent term of imprisonment
would though normally commence at the
expiration of imprisonment to which he
was previously sentenced, as per law of the
Supreme Court, the petitioner would get the
benefit of Section 427(1) Cr.P.C. Learned
counsel for the petitioner relying upon a
judgement of the Supreme Court in Benson
v. State of Kerala, (2016) 10 SCC 307, has
submitted that in cases of similar nature, if
conviction had taken place, then, it would
be prudent to make the sentences to run
concurrently. Learned counsel for the
petitioner still further relying upon the
judgement of the Supreme Court in Vicky
v. State (NCT of Delhi), (2020) 11 SCC
540, has argued that the sentences of two
cases of similar nature ought to run
concurrently. Learned counsel for the
petitioner further relying upon the case of
Iqram v. State of U.P., (2023) 3 SCC 184
has argued that the benefit of Section 427
(1) Cr.P.C., if had not been prayed for in
the court below, and had not been granted
by the court below, the same can be prayed
for before the High Court in a writ under
Article 226 of the Constitution of India.
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
Relying upon law as had been laid down in
the judgement of Iqram (supra) he submits
that the High Court under its jurisdiction
under Article 226 of the Constitution of
India, while dealing with the writ of
Habeas Corpus, can also extend the benefit
of Section 427 (1) of Cr.P.C.

5. Sri Rahul Asthana, learned A.G.A.
for the State, has relied upon a judgement
of the Supreme Court in Mohd. Zahid v.
State, (2022) 12 SCC 426 and has
submitted while relying upon paragraphs
'10' and '11' that if there were two cases
under the NDPS Act and if two different
sentences have been awarded by the court
below, then, the benefit of Section 427(1)
of Cr.P.C., could not be extended to such a
person.

6. To appreciate the submissions
made by learned counsels for the parties, it
will be appropriate to reproduce the
provisions of Section 427 Cr.P.C., which
reads as under:

"Section
427.
Sentence
on
offender already sentenced for another
offence.

(1) When a person already
undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to
imprisonment or imprisonment for life,
such imprisonment or imprisonment for life
shall commence at the expiration of the
imprisonment to which he has been
previously sentenced, unless the Court
directs that the subsequent sentence shall
run concurrently with such previous
sentence;

Provided that where a person
who has been sentenced to imprisonment
by an order under section 122 in default of
furnishing security is, whilst undergoing
such sentence, sentenced to imprisonment
for an offence committed prior to the
making of such order, the latter sentence
shall commence immediately.

(2) When a person already
undergoing a sentence of imprisonment for
life is sentenced on a subsequent conviction
to
imprisonment
for
a
term
or
imprisonment for life, the subsequent
sentence shall run concurrently with such
previous sentence."

7. From the plain reading of the
provisions of Section 427 Cr.P.C., it is
apparent that in view of Section 427 (1)
Cr.P.C.,
when
a
person
is
already
undergoing sentence of imprisonment and
on his subsequent conviction is sentenced
to further imprisonment or imprisonment
for
life,
such
imprisonment
or
imprisonment for life shall commence after
the expiry of the previous sentence of
imprisonment. However, the Court which is
subsequently sentencing such a person,
who is already undergoing a sentence of
imprisonment, has a discretion under
Section 427(1) Cr.P.C., to direct that such
subsequent sentence, which is being,
awarded shall run concurrently with the
previous sentence.

8. In the instant case, the petitioner
herein
was
convicted
under
Section
20(B)(II)(C) of the NDPS Act and was
imprisoned for a period of 12 years on
22.07.2015. However, subsequently he was
convicted and sentenced on 29.02.2016
under the provisions of Section 3(1) of the
Gangsters Act and was sentenced for a
period of five years rigorous imprisonment.
The court subsequently convicting and
sentencing the petitioner had not taken into
consideration the previous conviction and
sentence of the petitioner and had not
applied its discretion as is provided under
Section 427 (1) Cr.P.C., in directing the
3 All. Anil Kumar Vs. State of U.P. & Anr.
1413
subsequent sentence to run concurrently
with the previous sentence of imprisonment
for 12 years awarded under the provisions
of the NDPS Act. Ordinarily, in the
absence of an application claiming benefit
under Section 427 (1) of Cr.P.C., and nonapplication of such discretion by the
subsequent Court, the subsequent sentence
shall start after the completion of the earlier
sentence granted under the provisions of
the NDPS Act. However, in the case of
Benson(supra), the Apex Court while
considering the scope of Sub-section (1) of
Section 427 Cr.P.C., had relied upon
another judgement of the Apex Court in
V.K Bansal v. State of Haryana, (2013) 7
SCC 211, and had directed the sentence
awarded
in
various
cases
to
run
concurrently in view of the provisions of
Section 427 (1) Cr.P.C. Relevant portion of
the Apex Court judgement in Benson
(supra) reads as under:-

"6. In terms of sub-section (1) of
Section
427,
if
a
person
already
undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to
imprisonment, such subsequent term of
imprisonment would normally commence at
the expiration of the imprisonment to which
he was previously sentenced. Going by this
normal principle, the sentence chart
indicated in the communication dated 27-52016 is quite correct. However this normal
rule is subject to a qualification and it is
within the powers of the Court to direct
that the subsequent sentence shall run
concurrently with the previous sentence.

7. In V.K. Bansal v. State of
Haryana [V.K. Bansal v. State of Haryana,
(2013) 7 SCC 211 : (2013) 3 SCC (Civ)
498 : (2013) 3 SCC (Cri) 282] it was stated
by this Court: (SCC p. 216, para 10)

"10. ... It is manifest from
Section 427(1) that the Court has the power
and the discretion to issue a direction but
in the very nature of the power so
conferred upon the Court the discretionary
power shall have to be exercised along the
judicial lines and not in a mechanical,
wooden or pedantic manner. It is difficult
to lay down any straitjacket approach in
the matter of exercise of such discretion by
the courts. There is no cut and dried
formula for the Court to follow in the
matter of issue or refusal of a direction
within the contemplation of Section 427(1).
Whether or not a direction ought to be
issued in a given case would depend upon
the nature of the offence or offences
committed, and the fact situation in which
the question of concurrent running of the
sentences arises."

This Court then went on to club
various crimes in respect of which
sentences were imposed upon the appellant
therein in three groups: (i) the first having
12 cases, (ii) the second having 2 cases,
and (iii) the third having a single case. This
Court directed that substantive sentences
within first two groups would run inter se
concurrently and the substantive sentences
in first two groups and that in respect of the
case in the third group would run
consecutively. The benefit was confined
only in respect of substantive sentences and
not qua sentences in default.

8. We have gone through the
record
and
considered
the
rival
submissions. We do not find anything
incorrect in the assessment made by the
courts below and in our view the orders of
conviction recorded against the appellant
in the present cases are quite correct. We
also do not find anything wrong in the
quantum of sentence imposed in respect of
the respective crimes. However going by
the sentence calculation, the sentence
imposed in respect of the first crime started
with effect from 20-11-2003 and the last
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
sentence would be over by 19-8-2022,
which would effectively mean that the total
length of sentences in aggregate would be
around 19 years. We are not concerned
with first eight matters and sentences
imposed in respect of those crimes. The
sentence in respect of 8th crime is presently
running against the appellant and would be
over on 30-8-2017.

9. The maximum sentence in
respect of the present crimes is two years'
rigorous imprisonment. As per the record,
these crimes were committed on the same
day. Having considered the matters, we
deem it appropriate to direct that the
sentences imposed in each of the cases i.e.
(i) CC No. 158 of 2004, (ii) CC No. 1039 of
2003, (iii) CC No. 390 of 2004, and (iv) CC
No. 1168 of 2006, namely, those at Sl. Nos.
9 to 12 respectively as indicated in the
sentence chart in the communication dated
27-5-2016 shall run concurrently with the
sentence imposed in Crime No. 8 which is
currently operative. We grant this benefit in
respect of substantive sentences to the
appellant but maintain the sentences of fine
and the default sentences. If the fine as
imposed is not deposited, the default
sentence
or
sentences
will
run
consecutively and not concurrently."

9. Likewise, in Anil Kumar (supra),
the Apex Court relying upon V.K. Bansal
(supra) and Benson (supra), had applied
the discretion under Seciton 427 (1)
Cr.P.C., and directed the sentences of two
cases to run concurrently in the following
terms:

"7. After referring to V.K. Bansal
case [V.K. Bansal v. State of Haryana,
(2013) 7 SCC 211 : (2013) 3 SCC (Civ)
498 : (2013) 3 SCC (Cri) 282] , in Benson
v. State of Kerala [Benson v. State of
Kerala, (2016) 10 SCC 307 : (2017) 1 SCC
(Cri) 108 : (2016) 9 Scale 670] , this Court
directed the substantive sentences imposed
on
the
appellant
Benson
to
run
concurrently. The appellant therein was
convicted for the offences punishable under
Section 379 and Section 414 read with
Section 34 IPC in at least eleven cases. By
a separate judgment, the appellant was
convicted and sentenced in each of the
aforesaid cases and total length of
sentences
in
aggregate
was
around
nineteen years.

8. In the present case, the
appellant was earlier convicted under
Section 22, NDPS Act and subsequently
convicted under Section 27(b)(ii) and
Section 28 of the Drugs and Cosmetics Act,
1940. Considering the nature of the
offences for which the appellant was
convicted and the facts and circumstances
of the case, we deem it appropriate to
direct that the sentences imposed on the
appellant in FIR No. 37 and Complaint No.
638 shall run concurrently. However, the
fine amount and the default sentence or
sentences are maintained. If the fine
amount is not paid, the default sentence
will
run
consecutively
and
not
concurrently."

10. Similarly, in Vicky (supra), the
Apex
Court
relying
upon
various
judgements such as Mohd. Akhtar Hussain
vs. Collector of Customs, (1988) SCC 183,
V.K. Bansal (supra) and Anil Kumar
(supra), considering the condition and the
family background of the petitioner therein,
had directed the sentences of five cases to
run concurrently in following terms.

10. We may refer to the decision
of the Supreme Court in Mohd. Akhtar
Hussain v. Collector of Customs [Mohd.
Akhtar Hussain v. Collector of Customs,
(1988) 4 SCC 183 : 1988 SCC (Cri) 921] ,
3 All. Anil Kumar Vs. State of U.P. & Anr.
1415
wherein the Supreme Court recognised the
basic rule of convictions arising out of a
single transaction justifying concurrent
running of the sentences. In Mohd. Akhtar
Hussain
[Mohd.
Akhtar
Hussain
v.
Collector of Customs, (1988) 4 SCC 183 :
1988 SCC (Cri) 921] , it was held as
under: (SCC p. 187, paras 10 & 12)

"10. The basic rule of thumb over
the years has been the so-called single
transaction rule for concurrent sentences.
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 offences is not
the same or the facts constituting the two
offences are quite different.
***

12. The submission, in our
opinion, appears to be misconceived. The
material
produced
by
the
State
unmistakably
indicates
that
the
two
offences for which the appellant was
prosecuted are quite distinct and different.
The case under the Customs Act may, to
some extent, overlap the case under the
Gold (Control) Act, but it is evidently on
different transactions. The complaint under
the
Gold
(Control)
Act
relates
to
possession of 7000 tolas of primary gold
prohibited under Section 8 of the said Act.
The complaint under the Customs Act is
with regard to smuggling of gold worth Rs
12.5 crores and export of silver worth Rs
11.5 crores. On these facts, the courts are
not unjustified in directing that the
sentences should be consecutive and not
concurrent."

11. After referring to Mohd.
Akhtar Hussain [Mohd. Akhtar Hussain v.
Collector of Customs, (1988) 4 SCC 183 :
1988 SCC (Cri) 921] and other cases, in
V.K. Bansal v. State of Haryana [V.K.
Bansal v. State of Haryana, (2013) 7 SCC
211 : (2013) 3 SCC (Civ) 498 : (2013) 3
SCC (Cri) 282] , the Supreme Court held
that the legal position favours exercise of
discretion to the benefit of the prisoner in
cases where the prosecution is based on a
single transaction no matter different
complaints may have been filed. In V.K.
Bansal [V.K. Bansal v. State of Haryana,
(2013) 7 SCC 211 : (2013) 3 SCC (Civ)
498 : (2013) 3 SCC (Cri) 282] , it was held
as under: (V.K. Bansal case [V.K. Bansal
v. State of Haryana, (2013) 7 SCC 211 :
(2013) 3 SCC (Civ) 498 : (2013) 3 SCC
(Cri) 282] , SCC p. 217, paras 14-16)

"14. We may at this stage refer to
the decision of this Court in Mohd. Akhtar
Hussain v. Collector of Customs [Mohd.
Akhtar Hussain v. Collector of Customs,
(1988) 4 SCC 183 : 1988 SCC (Cri) 921] in
which this Court recognised the basic rule
of convictions arising out of a single
transaction justifying concurrent running
of the sentences. ...
 15. In Madan Lal case [State of
Punjab v. Madan Lal, (2009) 5 SCC 238 :
(2009) 2 SCC (Cri) 650] this Court relied
upon the decision in Akhtar Hussain case
[Mohd. Akhtar Hussain v. Collector of
Customs, (1988) 4 SCC 183 : 1988 SCC
(Cri) 921] and affirmed the direction of the
High Court for the sentences to run
concurrently. That too was a case under
Section 138 of the Negotiable Instruments
Act. The State was aggrieved of the
direction that the sentences shall run
concurrently and had appealed to this
Court against the same. This Court,
however, declined interference with the
order passed by the High Court and upheld
the direction issued by the High Court.

16. In conclusion, we may say
that the legal position favours exercise of
discretion to the benefit of the prisoner in
cases where the prosecution is based on a
1416 INDIAN LAW REPORTS ALLAHABAD SERIES
single transaction no matter different
complaints in relation thereto may have
been filed as is the position in cases
involving dishonour of cheques issued by
the borrower towards repayment of a loan
to the creditor."

12. In V.K. Bansal [V.K. Bansal
v. State of Haryana, (2013) 7 SCC 211 :
(2013) 3 SCC (Civ) 498 : (2013) 3 SCC
(Cri) 282] , the appellant-accused was
facing fifteen cases and the Supreme Court
has grouped fifteen cases into three
different groups:

(i) the first having twelve cases
relating to advancement of loan/banking
facility to M/s Arawali Tubes Ltd. acting
through the appellant thereon as Director;

(ii) the second having two cases
relating to advancement of loan to the
appellant M/s Arawali Alloys Ltd. acting
through the appellant as its Director; and

(iii) the third having a single case
qua the criminal complaint by State Bank
of Patiala.

The Court directed that the
substantive sentences within first two
groups would run inter se concurrently.
The Supreme Court directed that the
substantive sentences in first two groups
and that in respect of the case in the third
group would run consecutively.

13. Following the decision in
V.K. Bansal [V.K. Bansal v. State of
Haryana, (2013) 7 SCC 211 : (2013) 3
SCC (Civ) 498 : (2013) 3 SCC (Cri) 282] ,
in Benson v. State of Kerala [Benson v.
State of Kerala, (2016) 10 SCC 307 :
(2017) 1 SCC (Cri) 108] , the Supreme
Court directed that the sentences imposed
in each of the cases shall run concurrently
with the sentence imposed in Crime No. 8
which
was
then
currently
operative.
However, the Court held that the benefit of
"concurrent running of sentences" is
granted only with respect of substantive
sentences; but the sentences of fine and
default sentences shall not be affected by
the direction. The Supreme Court observed
that the provisions of Section 427 CrPC do
not permit a direction for the concurrent
running of the default sentence for nonpayment of fine.

14. Further, in Anil Kumar v.
State of Punjab [Anil Kumar v. State of
Punjab, (2017) 5 SCC 53 : (2017) 2 SCC
(Cri) 502] , it was held by this Court that:
(SCC p. 55, para 5)

"5. In terms of sub-section (1) of
Section
427,
if
a
person
already
undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to
imprisonment, such subsequent term of
imprisonment would normally commence at
the expiration of the imprisonment to which
he was previously sentenced. Only in
appropriate cases, considering the facts of
the case, the court can make the sentence
run concurrently with an earlier sentence
imposed. The investiture of such discretion,
presupposes
that
such
discretion
be
exercised by the court on sound judicial
principles and not in a mechanical manner.
Whether or not the discretion is to be
exercised in directing sentences to run
concurrently would depend upon the nature
of the offence/offences and the facts and
circumstances of each case."

15.
The
point
falling
for
consideration is whether the case of the
appellant is a fit case for exercising the
discretion in directing the sentence of
imprisonment to run concurrently with the
sentence of imprisonment imposed in the
earlier case in FIR No. 64/2011. Of course,
FIR No. 64/2011, FIR No. 67/2011 and FIR
No.
263/2009
relate
to
different
transactions. Since the appellant was
already undergoing imprisonment in FIR
No. 64/2011, in terms of Section 427 CrPC,
subsequent
sentences
shall
run
3 All. Anil Kumar Vs. State of U.P. & Anr.
1417
consecutively until and unless the court
specifically directs that they shall run
concurrently.

11. The Apex Court in Iqram (supra)
has held that if the lower court which had
passed the order of the subsequent sentence
had failed to exercise its discretion under
Section 427 (1) Cr.P.C., while awarding the
sentence in the subsequent case, then, on a
petition
under
Section
226
of
the
Constitution of India, the High Court has
powers to exercise such discretion under
Section 427 (1) Cr.P.C., and can direct such
subsequent sentences to run concurrently to
the previously awarded sentence in a
previous case. The relevant paragraphs of
the judgement in Iqram (supra) reads as
under:-

"11. In Mohd. Zahid v. State
[Mohd. Zahid v. State, (2022) 12 SCC 426]
, this Court interpreted the provisions of
Section 427CrPC after duly considering the
precedents in the following terms :

"33. Thus from the aforesaid
decisions of this Court, the principles of
law that emerge are as under:

(i)
If
a
person
already
undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to
imprisonment, such subsequent term of
imprisonment would normally commence at
the expiration of the imprisonment to which
he was previously sentenced.

(ii) Ordinarily the subsequent
sentence would commence at the expiration
of the first term of imprisonment unless the
court directs the subsequent sentence to
run
concurrently
with
the
previous
sentence.

(iii) The general rule is that
where there are different transactions,
different crime numbers and cases have
been decided by the different judgments,
concurrent sentence cannot be awarded
under Section 427CrPC.

(iv) Under Section 427(1)CrPC
the court has the power and discretion to
issue a direction that all the subsequent
sentences
run
concurrently
with
the
previous sentence, however discretion has
to be exercised judiciously depending upon
the nature of the offence or the offences
committed and the facts in situation.
However, there must be a specific direction
or order by the court that the subsequent
sentence to run concurrently with the
previous sentence."

12. The trial Judge, in the present
case, granted a set-off within the ambit of
Section 428/Section 31 CrPC. No specific
direction was issued by the trial court
within the ambit of Section 427(1) so as to
allow the subsequent sentences to run
concurrently. All the convictions took place
on the same day.

13. Once the petitioner espoused
the remedy of moving a writ petition under
Article 226 of the Constitution, the High
Court ought to have noticed the serious
miscarriage of justice which would occur
consequent upon the trial court not having
exercised specifically its discretion within
the ambit of Section 427(1). When the
appellant moved the High Court, he was
aggrieved by the conduct of the jail
authorities in construing the direction of
the trial court to mean that each of the
sentences would run consecutively at the
end of the term of previous sentence and
conviction. The High Court ought to have
intervened in the exercise of its jurisdiction
by setting right the miscarriage of justice
which would occur in the above manner,
leaving
the
appellant
to
remain
incarcerated for a period of 18 years in
respect of his conviction and sentence in
the nine Sessions trials for offences
essentially under the Electricity Act.
1418 INDIAN LAW REPORTS ALLAHABAD SERIES

14.
In
view
of
the
above
discussion, we allow the appeal and set
aside the impugned judgment of the High
Court dated 24-3-2022 [Iqram v. State of
U.P., 2022 SCC OnLine All 875] . We
order and direct that the sentences which
have been imposed on the appellant in the
nine Sessions trials noticed in the earlier
part
of
this
judgment
shall
run
concurrently."

12. In Mohd. Zahid (supra), the Apex
Court while dealing with the subsequent
conviction of the petitioner for the offences
under the provisions of the NDPS Act had
refused to extend the benefits of Section
427(1) of the Cr.P.C., as in that case the
said person previously also was convicted
for the provisions of the NDPS Act in two
different cases. In such circumstances, the
Apex Court had refused to exercise the
discretion under Section 427(1) of Cr.P.C.
The relevant portion of the said judgement
reads as under:-

"18. Applying the law laid down
by this Court in the aforesaid decisions and
the
principles
of
law
enumerated
hereinabove to the facts of the case on
hand, the submissions on behalf of the
appellant-accused that his subsequent
sentence to run concurrently with the
previous sentence is to be rejected outright.
In the present case the appellant has been
convicted with respect to two different
transactions, there are different crime
numbers and the cases have been decided
by the different judgments. Therefore, the
appellant is not entitled to any benefit of
concurrent
sentence
under
Section
427CrPC. As observed hereinabove, there
is no specific order or direction issued by
the court while imposing the subsequent
sentence that the subsequent sentence to
run
concurrently
with
the
previous
sentence.

19. Even otherwise as observed
hereinabove under Section 427(1)CrPC,
the Court has the power and discretion to
issue a direction that the subsequent
sentence to run concurrently with the
previous sentence in that case also, the
discretion has to be exercised judiciously
depending upon the nature of offence or the
offences committed.

20. In the present case the
appellant-accused has been convicted for
the offences under the NDPS Act. He has
been convicted in one case for recovery of
4 kg heroin and sentenced to undergo 12
years' RI and in another case there is a
recovery of 750 grams of heroin and
considering Section 31(ii) of the NDPS Act,
he has been sentenced to undergo 15 years'
RI.

21. No leniency should be shown
to an accused who is found to be guilty for
the offence under the NDPS Act. Those
persons who are dealing in narcotic drugs
are instruments in causing death or in
inflicting death-blow to a number of
innocent young victims who are vulnerable.
Such accused causes deleterious effects and
deadly impact on the society. They are
hazard to the society. Such organised
activities of clandestine smuggling of
narcotic
drugs
and
psychotropic
substances into this country and illegal
trafficking in such drugs and substances
have a deadly impact on the society as a
whole. Therefore, while awarding the
sentence or punishment in case of the
NDPS Act, the interest of the society as a
whole is required to be taken into
consideration.
Therefore,
even
while
applying
discretion
under
Section
427CrPC, the discretion shall not be in
favour of the accused who is found to be
3 All. Anil Kumar Vs. State of U.P. & Anr.
1419
indulging in illegal trafficking in narcotic
drugs and psychotropic substances.

22. As observed hereinabove,
even while exercising discretion under
Section
427CrPC
to
run
subsequent
sentence concurrently with the previous
sentence, the discretion is to be exercised
judiciously
and
depending
upon
the
offence/offences
committed.
Therefore,
considering the offences under the NDPS
Act which are very serious in nature and
against the society at large, no discretion
shall be exercised in favour of such
accused who is indulging into the offence
under the NDPS Act."

13. Thus, from the aforesaid analysis,
it is apparently clear that if the trial court in
subsequent conviction fails to take note of
the previous conviction and sentences such
person and thereby fails to apply its
discretion as provided under Section 427
Cr.P.C., then, on a petition under Article
226 of the Constitution of India, this Court
undoubtedly has the power to entertain
such a petition and may, in appropriate
cases, apply the discretion as provided
under Section 427 of Cr.P.C. However, the
mandate of law is that such discretion
should be applied judiciously and not
mechanically depending upon the facts and
circumstances of each case.

14. In the instant case, the
petitioner herein was tried and convicted
for an offence under Section 20(B)(II)(C)
of the NDPS Act in Sessions Trial No. 19
of 2023 and vide order dated 22.07.2015,
he was convicted for sentence of rigorous
imprisonment for a period of 12 years. On
the basis of the same case, another case was
lodged under Section 3(1) of the Gangsters
Act and he was tried and convicted under
the provisions of the Gangsters Act in
Sessions Trial No. 28 of 2013 on
29.02.2016 and was awarded sentence of
five
years
of
rigorous
imprisonment
without applying the discretion under
Section 427 of Cr.P.C. Therefore, we find
that the subsequent conviction of the
petitioner herein was not for any further
and overt act but for the same act for which
he had already been convicted under the
provisions of the NDPS Act. Therefore, the
subsequent conviction of the petitioner was
for the offence of a similar nature without
any further overt act. Therefore, in view of
the judgement of the Supreme Court in
Iqram (supra), we are of the view that this
Court while dealing with the case under
Habeas Corpus writ petition can extend the
benefit of Section 427 of Cr.P.C. to the
petitioner herein in view of the judgements
of Apex Court as in V.K. Bansal (supra),
Anil kumar (supra), Benson (supra),
Vicky (supra). Having found that both the
cases were arising out of the same offence
and were absolutely of similar nature, we
extend the benefit under Section 427 (1)
Cr.P.C., to the petitioner and we direct that
the said sentence of the petitioner awarded
under the subsequent case under the
Gangsters Act vide judgement and order
dated 29.02.2016, shall run concurrently to
the
sentence
already
awarded
vide
judgement and order dated 22.07.2015
under Section 20(B)(II)(C) of the NDPS
Act. Since, the petitioner herein has been
granted bail in Criminal Appeal No. 4024
of 2015 (Anil Kumar Vs. State of U.P.),
vide order dated 09.08.2023, by this Court
in the previous case under the provisions of
the NDPS Act and since the petitioner
herein is in jail since 05.08.2013, as
submitted by the learned counsel for the
petitioner, therefore, in view of the
aforesaid direction that the subsequent
sentence of the petitioner shall run
concurrently to the previously awarded
sentence in NDPS Act, the petitioner herein
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
is entitled to be released in terms of the bail
order dated 09.08.2023, passed by this
Court in Criminal Appeal No. 4024 of
2015.
Accordingly,
we
direct
State
Authorities i.e., Respondent nos. 1 and 2, to
calculate the period of sentence as if both
the sentences had run concurrently and
release the petitioner forthwith in terms of
bail order dated 09.08.2023 if he is not
required in any other case.

15. With these observations the
instant Habeas Corpus writ petition is
allowed.
----------
(2024) 3 ILRA 1420
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2024

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matter Under Article 227 No. 90 of 2024

Meera Awasthi & Anr. ...Petitioners
Versus
Ajeet Awasthi & Anr. ...Respondents

Counsel for the Petitioners:
Sri Anand Kumar Srivastava, Sri Anand Kumar
Srivastava, Dr. Shiv Bahadur Singh

Counsel for the Respondents:--

Civil Law - Civil Procedure Code, 1908 -
Order 39 Rules 1 & 2 - Specific Relief Act,
1963 - Section 9 - Constitution of
India,1950 -Article 227 - Permanent
Injunction - Settled Possession - Title Dispute -
Maintainability of Suit for Injunction without
Declaration of Title
The petitioners challenged the order dated
31.10.2023 by the Additional District Judge,
Kanpur Nagar, allowing Misc. Civil Appeal No. 81
of 2023, which set aside the trial court's order
dated
21.08.2023
rejecting
a
temporary
injunction in Original Suit No. 816 of 2020. The
suit, filed by respondent No. 1 (Ajeet Awasthi),
sought a permanent injunction to restrain the
petitioners (his parents, Meera Awasthi and
another) from interfering with his possession of
House No. N 638, S Block, Yashoda Nagar,
Kanpur Nagar. The respondent claimed he
purchased the land and constructed the house
with his own funds, though registered in his
mother's name, while the petitioners asserted
ownership, alleging the respondent's possession
was permissive as their son. The trial court
rejected the injunction, finding no prima facie
case, balance of convenience, or irreparable
loss, and held possession alone insufficient for
an injunction. The appellate court reversed this,
directing both parties to maintain status quo.
Held: The court, under Article 227, upheld the
appellate court's order, emphasizing that Indian
law protects settled possession even without
title, as per Midnapur Zamindary Co. Ltd.