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2024 DIGILAW 515 (ALL)

Anil Kumar v. State of U. P.

2024-02-19

ANISH KUMAR GUPTA, SIDDHARTHA VARMA

body2024
JUDGMENT : 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 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. 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. 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 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 non-application 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 27-5-2016 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. Going by this normal principle, the sentence chart indicated in the communication dated 27-5-2016 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. 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 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] , 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. 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. 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 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. 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 non-payment 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. 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 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. (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. 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. 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. 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 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. 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. 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 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.