Judgment

JAGANNATHA SHETTY, J.:- We grant Special leave and proceed to dispose of the appeal.

2. The appeal arises from a judgment of the Gujarat High Court dated 20 July, 1987 in Criminal - Appeals Nos. 260/1987, 105/1987 and 444/1987: (reported in 1988 Cri LJ 631). It raises a short but not very easy point for determination. The point relates to sentencing practice as to concurrent or consecutive sentences.

3. The essential facts can be stated in summary form as follows : Appellant - Mohd. Akhtar Hussain alias Ibrahim Ahmad Bhatti is a Pakistani national. On 15 April, 1982, the gold 7000 tolas of foreign mark of the value of Rs. 1.4 crores was seized from his possession at Ahmedabad. Later he was arrested. On 23 September, a case was filed in the Court of Chief Metropolitan Magistrate, Ahmedabad in CC No. 1674 of 1982. He was charged under S. 85(1)(ii) of the Gold (Control) Act, 1968. He pleaded guilty to the charge. On 11 January, 1984 he was convicted and sentenced to imprisonment for 7 years and fine of Rs. 10 lakhs. It is the maximum punishment prescribed under the Gold (Control) Act. Upon appeal. the Bombay High Court confirmed that sentence but reduced the fine to Rs. 5 lakhs. The special leave petition filed by the appellant was dismissed by this Court. That conviction and sentence became final.

4. When the appellant was under judicial custody in the aforesaid case, there was further investigation with regard to his smuggling activities. It revealed widespread racket of smuggling gold and silver in collussion with several persons. On 6 January, 1983 he was again prosecuted along with 18 others under S. 135 of the Customs Act, 1962. The complaint in this case was filed before the Additional Chief Metropolitan Magistrate, Ahmedabad. It was registered as CC No. 129/1986. It was alleged in the complaint that the appellant and others had imported gold worth Rs. 12.5 crores and smuggled out of India silver worth Rs. 11.5 crores during December 1981 to February 1982. In this case also the appellant did not wait for the trial of the case. He pleaded guilty to the charge. The other 18 accused, however, did not follow him. They denied the charge and the case against them is said to be still pending for disposal.

5. On 6 January 1987, the trial Magistrate convicted the appellant, in the following terms :

"Accused No. 1 in this case is proved guilty under Section 135 of Customs Act and it is ordered that accused No. 1 is sentenced for 4 years (for four years) R.I. and a fine of Rupees two lakhs (Rupees two lakhs only) and if fine not paid, further sentence of R. I for six months more. This, sentence is to be undergone on expiration of sentence in Crl. case No. 1674/82. Accused is found guilty under section 120(B) of Indian Penal Code, but no separate sentence is ordered, for the same."

6. The reasons given in support of the above conclusion are :

"It is not proper to pass order only by taking the circumstances and difficulties of the accused. Simultaneously, midway should be found looking to the circumstances of the nation and personal circumstances of the accused. It is not possible to order sentence of both the cases of the accused, to run concurrently. When the accused in previous case, was ordered to undergo sentence of seven years R.I. then, in this case it does not seem reasonable to order sentence for similar period i.e. detain in jail for 12 to 14 years and fine and if fine not paid, to undergo further more sentence. The accused had pleaded guilty and requested for mercy. It is in the interest of justice to show slight mercy in the order of sentence by the Court."

7. Against this order of conviction and sentence there were appeals and counter appeals before the High Court. The appellant appealed against the sentence on the ground that the sentences should have been made concurrent. The State, on the other hand, demanded the maximum sentence again. The maximum sentence prescribed under S. 135 of the Customs Act is also 7 years. The