# Gurmel Singh & Anr v. State of U.P. & Anr

- **Citation:** (2025) 1 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-20
- **Case number:** Habeas Corpus Writ Petition No. 439 of 2023
- **Bench:** Vivek Kumar Birla, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gurmel-singh-anr-v-state-of-u-p-anr-53069
- **Pages:** 7

## Headnote

Criminal Law - Constitution of India,
Article 226- Criminal Procedure Code,
1973 - Section 427- Narcotic Drugs and
Psychotropic
Substances
Act,
1985Habeas Corpus - Illegal detention -
Convict
undergoing
sentence
in
two
separate NDPS cases - Sentence in
second conviction to run consecutively in
absence of direction to run concurrently -
Petitioner contended continued detention
illegal since sentence served in first case
- Held, Section 427 Cr.P.C. provides
general rule of consecutive sentence
unless otherwise directed - Discretion to
order concurrent running of sentences not
exercised by trial court - Convictions
under NDPS Act are serious and against
society - No illegality found in continued
custody - Habeas corpus petition liable to
be dismissed. (Paras 9, 11,12, and 15)

HELD:
Section 427 Cr.P.C. provides that 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. In other words,
subsection (1) of Section 427 confers a
discretion on the Court to direct that the
subsequent sentence following a conviction shall
run concurrently with the previous sentence.
(Para 9)

It has been held that if the transactions related
to the offences is not the same or the facts
constituting the two offences are quite different
in that case the subsequent sentence should run
consecutively- Further, in absence of any
direction as to running of subsequent sentence,
as per general rule enunciated in Section
427(1), the subsequent sentence will not run
concurrently but consecutively. (Para 11)

It has further been observed that even while
exercising discretion under 427(1) Cr.P.C. 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 that offences under the NDPS Act
are very serious in nature and against the
society at large, held, no discretion shall be
exercised in favour of such accused who is
indulging in multiple offences under the NDPS
Act. (Para 12)

Upon hearing the learned counsel for the parties
and from the perusal of the record and the two
custody certificates, it transpires that the corpus
Gurmel Singh is a repeat offender under the
N.D.P.S. Act and has been convicted in two
separate offences by different trial courts in two
different transactions having different case
crime numbers and the cases have been
registered at different Police Stations in different
1 All. Gurmel Singh & Anr. Vs. State of U.P. & Anr.
719
St.s and have been decided by two different
judgments. Therefore, the petitioner is not
entitled to any benefit of concurrent sentence
under Section 427 of Cr.P.C. especially when
there is no specific order or direction that the
sentences shall run concurrently. He is in
custody since 31.12.2005. His sentence in FIR
No. 306/2005 at Punjab was completed on
17.09.2019 and thereafter his sentence in FIR
No.89/2006 at Uttar Pradesh started
on
18.09.2019 and is continuing till date. He has
served
approximately
seven
years
of
imprisonment with remission. (Para 15)

Writ petition dismissed. (E-14)

## Text

718 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No.52 of 2007 (Zila Ganna
Utpadadak Sahkari Samiti Ltd. Hardoi Vs.
Union of India and Another) by the
Additional District Judge, Court No.6,
Hardoi is accordingly modified. The suit
filed by the appellant stands partly allowed
and decreed accordingly.

30. With the aforesaid, this appeal
is partly allowed. No order as to costs.
----------
(2025) 1 ILRA 718
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Habeas Corpus Writ Petition No. 439 of 2023

Gurmel Singh & Anr. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Akash Mishra

Counsel for the Respondent:
G.A.

Criminal Law - Constitution of India,
Article 226- Criminal Procedure Code,
1973 - Section 427- Narcotic Drugs and
Psychotropic
Substances
Act,
1985Habeas Corpus - Illegal detention -
Convict
undergoing
sentence
in
two
separate NDPS cases - Sentence in
second conviction to run consecutively in
absence of direction to run concurrently -
Petitioner contended continued detention
illegal since sentence served in first case
- Held, Section 427 Cr.P.C. provides
general rule of consecutive sentence
unless otherwise directed - Discretion to
order concurrent running of sentences not
exercised by trial court - Convictions
under NDPS Act are serious and against
society - No illegality found in continued
custody - Habeas corpus petition liable to
be dismissed. (Paras 9, 11,12, and 15)

HELD:
Section 427 Cr.P.C. provides that 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. In other words,
subsection (1) of Section 427 confers a
discretion on the Court to direct that the
subsequent sentence following a conviction shall
run concurrently with the previous sentence.
(Para 9)

It has been held that if the transactions related
to the offences is not the same or the facts
constituting the two offences are quite different
in that case the subsequent sentence should run
consecutively- Further, in absence of any
direction as to running of subsequent sentence,
as per general rule enunciated in Section
427(1), the subsequent sentence will not run
concurrently but consecutively. (Para 11)

It has further been observed that even while
exercising discretion under 427(1) Cr.P.C. 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 that offences under the NDPS Act
are very serious in nature and against the
society at large, held, no discretion shall be
exercised in favour of such accused who is
indulging in multiple offences under the NDPS
Act. (Para 12)

Upon hearing the learned counsel for the parties
and from the perusal of the record and the two
custody certificates, it transpires that the corpus
Gurmel Singh is a repeat offender under the
N.D.P.S. Act and has been convicted in two
separate offences by different trial courts in two
different transactions having different case
crime numbers and the cases have been
registered at different Police Stations in different
1 All. Gurmel Singh & Anr. Vs. State of U.P. & Anr.
719
St.s and have been decided by two different
judgments. Therefore, the petitioner is not
entitled to any benefit of concurrent sentence
under Section 427 of Cr.P.C. especially when
there is no specific order or direction that the
sentences shall run concurrently. He is in
custody since 31.12.2005. His sentence in FIR
No. 306/2005 at Punjab was completed on
17.09.2019 and thereafter his sentence in FIR
No.89/2006 at Uttar Pradesh started
on
18.09.2019 and is continuing till date. He has
served
approximately
seven
years
of
imprisonment with remission. (Para 15)

Writ petition dismissed. (E-14)

(Delivered by Hon'ble Vivek Kumar Birla,
J. & Hon'ble Ms. Nand Prabha Shukla, J.)

1. Heard Sri Akash Mishra, learned
counsel for the petitioners, Sri Rahul
Asthana, learned Additional Government
Advocate for the State and perused the
record.

2. The present Habeas Corpus Writ
Petition has been filed with a prayer to
issue a writ, order or direction in the nature
of Habeas Corpus directing the respondent
no.2 to release the corpus/petitioner no.1.

3. The corpus, petitioner no.1
Gurmel Singh has filed the present writ
petition through his son Harprit Singh, the
petitioner no.2, seeking his release from
District Jail, Etawah.

4. The main contention of the
learned counsel for the petitioners is that
the corpus Gurmel Singh, aged about 68
years is behind the bar since 31.12.2005. It
has been contended that the respondent
No.2 had illegally detained the corpus as
the custody period of the corpus served out
at District Jail, Mansa, Punjab vide
judgment and order dated 27.08.2008 has
not been calculated. It has also been
contended that the petitioner no.1 has
already served out the sentence, which was
awarded by the District Courts of Ludhiana
and Etawah and yet he has been kept under
illegal custody, which is in violation of
Rules of Jail Manual and Article 21 of the
Constitution of India. It has also been
asserted that the conduct of the corpus in
jail is good and there is no adverse remark
against him by the Jail Superintendent. It
has been emphasized that the District
Court, Etawah while imposing the sentence
of 10 years rigorous imprisonment in Case
Crime
No.89/2006
has
not
clarified
whether the sentence in both the cases,
shall run concurrently or not, despite
recording the finding that the petitioner
no.1 is being convicted by District Court
Ludhiana, Punjab and therefore, the benefit
of section 427 Cr.P.C. should be given to
the petitioner.

5. From the perusal of records, it
transpires that the corpus has been
convicted in two separate offences under
the N.D.P.S. Act at Punjab and Uttar
Pradesh.

(i)
Briefly
stated,
the
corpus Gurmel Singh was a named
accused
in
Case
Crime
No.187/2005 lodged at Punjab on
04.08.2005, under Section 15/61/85
of N.D.P.S. Act, Police Station
Sadar
Mansa,
District
Mansa,
Punjab and was convicted by the
learned
Trial
Court
but
was
subsequently
acquitted
by
the
Punjab and Haryana High Court at
Chandigarh vide judgment and
order dated 06.07.2015.
(ii). Thereafter, the corpus
was again implicated at Punjab in
First Information Report bearing
Case Crime No.306/2005, under
720 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 15/25/60/61/85 of N.D.P.S.
Act, Police Station Sidhwa Bet,
District Ludhiana, Punjab and was
arrested
on
30.12.2005.
The
Special Court, Ludhiana vide its
judgment
and
order
dated
26.08.2008
had
convicted
the
petitioner under Section 15 of
N.D.P.S. Act awarding sentence to
undergo rigorous imprisonment of
12 years and to pay fine of
Rs.1,50,000/- and in default of
payment of fine, to further undergo
rigorous imprisonment of one and
six months. Against the said order
of conviction, the petitioner filed a
Criminal
Appeal
No.
CRA-D
No.300-DB of 2019 (OM) before
the High Court of Punjab and
Haryana at Chandigarh, which was
dismissed vide judgment and order
dated 30.01.2014.
(iii).
During
his
confinement at District Jail, Mansa,
Punjab, another case was registered
against the petitioner at Uttar
Pradesh bearing Case Crime No.
89/2006 dated 16.11.2006, under
Section 15/18/25 of N.D.P.S. Act at
Police Station Badpura, District
Etawah in which the petitioner was
summoned through B-Warrant from
District Jail, Mansa, Punjab to
District Jail, Etawah on 28.04.2008
and remained in custody at Etawah
as an under trial from 28.04.2008
upto 17.01.2010 and was convicted
in the said matter by the Additional
District and Sessions Judge, Fast
Track Court No.1, Etawah by the
judgment
and
order
dated
18.01.2010 for an offence under
Section 25(15) of N.D.P.S. Act for
the term of 10 years rigorous
imprisonment and fine of Rs.1 lac,
in default of payment of fine, two
years
additional
rigorous
imprisonment. Against the said
order of conviction, the petitioner
no.1 preferred a Criminal Appeal
No.1373 of 2010 before this High
Court, which was partly allowed by
this Court on 09.06.2017 to the
extent
that
the
petitioner's
conviction under Section 25(15) of
N.D.P.S. Act was confirmed and
sentence of 10 years of rigorous
imprisonment and fine of Rs.1 lac
was
also
maintained
but
the
additional sentence of two years in
default of payment of fine, was
reduced to one year.

6. Per contra, learned Additional
Government Advocate has refuted the
contention by referring to the two Custody
Certificates issued by the Superintendent
District
Jail,
Mansa,
Punjab
dated
09.09.2019 and the Senior Superintendent
District Jail, Etawah dated 06.07.2023.

A. Details of Custody Certificate,
District Jail, Mansa, Punjab dated
09.9.2019

(i)
Name of
the
Convict
Gurmel
Singh
S/o
Nachhatar Singh
(ii)
FIR No.
306/2005,
U/s
15/25/60/61/85
NDPS
Act,
P.S.
Sidhwa Bet, Punjab.
(iii)
Convicted
by the Ld.
Court
Special
Court,
Ludhiana, Punjab
(iv)
Date
of
Judgment
27.08.2008
(v)
Term
of
Sentence
20 years R.I. (which
has
been
wrongly
transcribed
in
the
1 All. Gurmel Singh & Anr. Vs. State of U.P. & Anr.
721
record. The correct
term of sentence is 12
years R.I. and fine of
Rs.1,50,000/- and in
default
thereof
to
further undergo R.I.
for one year and six
months)
(vi)
Custody
as Under
trial
31.12.2005
to
26.08.2008
(vii)
Custody
after
conviction
27.08.2008
to
17.09.2019
(viii) Total
sentence
including
remission
12 years

Note : The actual sentence awarded to
said convict in above mentioned FIR
No.306/2005 was completed on 17.09.2019
and with remaining one and half year of
imprisonment in lieu of fine which will be
started after completion of sentence or bail
in FIR No.89/2006, U/s 15/18/25 NDPS
Act, PS Badpura, District Etawah (U.P.).

B. Details of Custody Certificate,
District
Jail,
Etawah
(U.P.)
dated
06.07.2023

(i)
Name of
the
Convict
Gurmel
Singh
S/o
Nachhatar Singh
(ii)
FIR No.
89/2006, U/s 25/15
NDPS
Act,
P.S.
Badpura,
District
Etawah (U.P.)
(iii)
Convicted
by the Ld.
Court
Additional
District
and Sessions Judge,
Fast Track Court-1,
Etawah
(iv)
Date
of
Judgment
18.01.2010
(v)
Term
of
Sentence
10 years R.I. & fine
of Rs.1,00,000/-, in
default of payment of
fine,
to
further
undergo
one
year
imprisonment
(vi)
Custody
as Under
trial
28.04.2008
to
17.01.2010
(vii)
Custody
after
conviction
18.09.2019
to
06.07.2023
(viii) Total
sentence
including
remission
5 years, six months
and 9 days as on
06.07.2023
(ix)
Pending
conviction
of Punjab
FIR
No.306/2005,
U/s
15/25/60/61/85
NDPS
Act,
P.S.
Sidhwa Bet, Punjab.

7. It has been asserted by the
learned State Counsel, that the corpus has
been convicted by two different courts in
two different trials, in two different
transactions,
therefore,
the
petitioners
cannot avail the benefit of Section 427(1)
Cr.P.C.

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

"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
722 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

9. Section 427 Cr.P.C. provides
that 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. In other words, subsection (1) of Section 427 confers a
discretion on the Court to direct that the
subsequent sentence following a conviction
shall run concurrently with the previous
sentence.

10. Recently, the Hon'ble Apex
Court has clarified the law on Section
427(1) Cr.P.C. and has also laid down the
principles of law in respect to concurrent
and consecutive running of sentences in
Mohd. Zahid vs. State through NCB,
(2022) 12 Supreme Court Cases 426.

11. It has been held that if the
transactions related to the offences is not
the same or the facts constituting the two
offences are quite different in that case the
subsequent
sentence
should
run
consecutively- Further, in absence of any
direction as to running of subsequent
sentence, as per general rule enunciated in
Section 427(1), the subsequent sentence
will not run concurrently but consecutively.

12. It has further been observed
that even while exercising discretion under
427(1) Cr.P.C. 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 that
offences under the NDPS Act are very
serious in nature and against the society at
large, held, no discretion shall be exercised
in favour of such accused who is indulging
in multiple offences under the NDPS Act.

13. Further, the principles of law
laid down 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
1 All. Gurmel Singh & Anr. Vs. State of U.P. & Anr.
723
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 427 of
Cr.PC;
(iv)
under Section
427
(1) of Cr.PC 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."

14. Further it has been emphasized
in paragraph-11 of the aforesaid judgment :

"Even
otherwise
as
observed
hereinabove
under Section 427 (1) of Cr.P.C, 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. 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
the Section 31 (ii) of the NDPS Act,
he has been sentenced to undergo
15 years RI. 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
organized 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
ofNDPS Act, the interest of the
society as a whole is required to be
taken into consideration. Therefore,
even while applying discretion
under Section 427 of Cr.PC, the
discretion shall not be in favour of
the accused who is found to be
indulging in illegal trafficking in
the
narcotic
drugs
and
psychotropic
substances.
As
observed hereinabove, even while
exercising discretion under Section
427 of Cr.PC to run subsequent
sentence concurrently with the
previous sentence, the discretion is
to be exercised judiciously and
depending
upon
the
offence/offences
committed.
724 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. Upon hearing the learned
counsel for the parties and from the perusal
of the record and the two custody
certificates, it transpires that the corpus
Gurmel Singh is a repeat offender under the
N.D.P.S. Act and has been convicted in two
separate offences by different trial courts in
two different transactions having different
case crime numbers and the cases have
been registered at different Police Stations
in different States and have been decided
by two different judgments. Therefore, the
petitioner is not entitled to any benefit of
concurrent sentence under Section 427 of
Cr.P.C. especially when there is no specific
order or direction that the sentences shall
run concurrently. He is in custody since
31.12.2005. His sentence in FIR No.
306/2005 at Punjab was completed on
17.09.2019 and thereafter his sentence in
FIR No.89/2006 at Uttar Pradesh started on
18.09.2019 and is continuing till date. He
has served approximately seven years of
imprisonment with remission.

16. The learned Additional District
and Sessions Judge/Fast Track Court No.1,
Etawah in its judgment and order of
conviction dated 18.01.2010 has not passed
any specific order or direction while
imposing the subsequent sentence that the
subsequent sentence shall run concurrently
with
the
previous
sentence.
The
petitioner/corpus having been convicted
repeatedly for an offence under the NDPS
Act, which is very serious in nature and
against the society at large, therefore, no
discretion shall be exercised in favour of
the petitioner. In the light of the Hon'ble
Apex Court's judgment as discussed above,
the petitioner shall have to serve the
remaining sentence consecutively after the
date of expiration of the previous sentence.

17. In view of the above and for
the reasons stated above, the corpus has not
been illegally detained by the respondent
no. 2. The present Habeas Corpus Writ
Petition fails and the same deserves to be
dismissed and is accordingly, dismissed.
----------
(2025) 1 ILRA 724
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.01.2025

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal (D) No. 10 of 2025

Saurabh Saxena ...Appellant
Versus
Union of India & Ors. ...Respondents

Counsel for the Appellant:
Rishi Raj, Garv Saxena

Counsel for the Respondents:
A.S.G.I., C.S.C., Gaurav Mehrotra, S M Singh
Royekwar

A.
Service
Law
-
UP
Government
Industrial Training Institutes (Instructors
and Foreman Instructors) Service Rules,
2021 - Post of Instructor in Sewing
Technology
-
Qualification
-
Determination - Competence of the Court
-
Diploma
in
Garment
Fabrication
Technology/Costume
Design
&
Dress
making was required, but instead it, a
qualification equivalent to it was claimed
to be possessed - Permissibility - Held,
any person claiming to possess any
qualification equivalent to a required