Hon'ble Siddhartha Varma,J.

Hon'ble Anish Kumar Gupta,J.

(Per: 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.

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 sim