Criminal Appeal No 467 of 1988
From the Judgment and Order dated 20th July 1987 of the Gujarat High Court in Crl
Appeal No 26087 with Crl
Appeal No 10587 and Crl
Appeal No 44487
Soli J Sorabji Mukul Mudgal EK Jose and PH Parekh for the Appellant
PG NO 749 GA Shah MN Shroff B Datta AK Srivastava P Pramesh and Mrs Sushma Suri for the Respondents
The Judgment of the Court was delivered by JAGANNATHA SHETTY J
We grant Special leave and proceed to dispose of the appeal
The appeal arises from a Judgment of the Gujarat High Court dated 20th July 1987in Criminal Appeal Nos
2601987 1051987 and 4441987
It raises a short but not very easy point for determination
The point relates to sentencing practice as to concurrent or consecutive sentences
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 7NN tolas of foreign mark of the value of Rs 14 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 section 85 Iii 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 Rs5 lakhs
The special leave petition filed by the appellant was dismissed by this Court
That conviction and sentence became final
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 collusion with several persons
On 6 January 1983 he was again prosecuted along with 18 others under section 335 of the 
The complaint in this case was filed before the Additional Chief Metropolitan Magistrate Ahmedabad
It was registered as CC No 1291986
It was alleged in the complaint that the appellant and others had imported gold worth Rs 125 crores and smuggled out of India silver worth Rs 115 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 They denied the charge and the case against them is said to be still pending for disposal
PG NO 750 On January 1987 the trial Magistrate convicted the appellant in the following terms Accused No 1 in this case is proved guilty under Section 235 of and it is ordered that accused No 1 is sentenced for 4 years for four years RI and a fine of Rupees two lakhs Rupees two lakhs only and if fine not paid further sentence of RI for six months more
This sentence is to be undergone on expiration of sentence in Crl
case No 167482
Accused is found guilty under section 120B of Indian Penal Code but no separate sentence is ordered for the same
 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 RI then in this case it does not seem reasonable to order sentence for similar period ie 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
 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 section 135 of the is also 7 years
The State contended that in view of the enormity of the economic crime committed by the appellant he should be given the maximum and consecutive
The High Court accepted the State appeal enhanced the sentence from 4 years to 7 years and made it consecutive
Consequently the High Court dismissed the appeal of the appellant
The result is that he has to serve in all 14 years imprisonment which he has challenged in this appeal
Section 427 Cr
PC incorporates the principles of sentencing an PG NO 751 offender who is already undergoing a sentence of imprisonment
The relevant portion of the Section reads  4271 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
xxxxx xxxxx xxxxx  The Section relates to administration of criminal justice and provides procedure for sentencing
The sentencing court is thereforerequired to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run
Whether it should be concurrent or consecutive  The basic rule of thumb over the years has been the so called single transation 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
In this appeal the primary challenge to the sentence is based on assumption that the two cases against the appellant under the Gold Control Act and the pertain to the same subject matter
It is alleged that the appellant was prosecuted under the two enactments in respect of seizure of 7000 tolas of gold
On this basis reference is also made to Section 428 Cr
PC claiming set off in regard to the period of imprisonment already undergone by the appellant
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 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 PG NO 752 primary gold prohibited under section 8 of the said Act
The complaint under the is with regard to smuggling of Gold Worth Rs 125 crores and export of silver worth Rs 11
5 crores
On these facts the Courts are not unjustified in directing that the sentences could be consecutive and not concurrent
The question however remains to be considered is whether the maximum sentence under the is warranted Whether in the circumstances it is wrong in principle to sentence the same offender the another maximum imprisonment It is argued that the High Court has failed to take into consideration the total period of sentence which the appellant has to undergo
It is also argued that since the conviction was based on the plea of guilty the appellant should have been given a credit in the sentence
The personal problems of appellant are also highlighted for reduction in the sentence
The High Court has refused to take into consideration the merciful plea of the appellant and much less the plea of guilty
The enormity of the crime committed by the appellant according to the High Court warranted nothing less than the maximum sentence
The High Court had this to say The individual hardships of the appellant and his family would be of no consequence at all
If offence was such that the maximum sentence should have been awarded then the learned Metropolitan Magistrate should not have made an illconceived attempt to find out a via media
We therefore feel that the appeal filed by the State requires to be allowed
The fact that the accused had pleaded guilty is of no consequence
It is not the case of plea bargaining because the accused had pleaded guilty and yet he was given numerous opportunities to reconsider his decision
If the accused even thereafter had pleaded guilty the fact that he was awarded a seven years  Rigorous imprisonment sentence in the previous case would be no ground for the learned Metropolitan Magistrate to award less than the maximum sentence if the facts of the case warranted such a maximum sentence
The enormity of the crime called for nothing less than the maximum sentence
 We have carefully perused the entire material on record
It may be recalled that the appellant was given the maximum PG NO 753 sentence of 7 years in the previous case under Gold Control Act
The conviction thereunder was also based on the plea of guilty
The latter sentence under the was also on the plea of guilty
Generally it is both proper and customery for Courts to give credit to an accused for pleading guilty to the charge
But no credit need be given if the plea of guilty in the circumstance is inevitable or the accused has no alternative but to plead guilty
The accused being caught red handed is one such instance
The first case under the Gold Control Act against the appellant falls into the latter category
7000 tolas of Gold of foreign mark of the value of Rs 14 crores were seized from the possession of appellant
The plea of guilty in that case was inevitable
The Court was therefore justified in awarding the maximum sentence
But the second case under the was not of that type
Here the prosecution has to prove many things
There are 18 other accused facing the trial in the same case
The appellant however pleaded guilty perhaps on legal advise
He must have been told that some credit for such plea would be given by the court and if the credit is not given and the maximum sentence is awarded the appellant is surely entitled to complain for giving the maximum sentence
It is no doubt that the enormity of the crime committed by the accused is relevant for measuring the sentence
But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave
The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive
The totality principle has been accepted as correct principle for guidance
In R vs Edward Charles French 1982 Cr
R S p 1 at 6 Lord Lane CJ observed  We would emphasize that in the end whether the sentences are made consecutive or concurrent the sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case The trial Magistrate in this case has properly considered all aspects including the plea of guilty and given good reasons for awarding 4 years RI
That means in all the appellant has to undergo 11 years of imprisonment
That by itself is quite long enough in a man s life
But the High Court took a narrow view of the whole matter with the enormity of the crime on the forefront
The broad expanse of PG NO 754 discretion left by legislation to sentencing Courts should not be narrowed only to the seriousness of the offence
No single consideration can definitively determine the proper sentence
In arriving at an appropriate sentence the court must consider and some times rejectmany factors
The court must
recognise learn to control and exlcude  many diverse data
It is a balancing act and tortuous process to ensure reasoned sentence
In consecutive sentences in particular the Court cannot afford to be blind to imprisonment which the accused is already undergoing
In the result we allow the appeal set aside the judgment of the High Court and restore that of the trial court
MLA Appeal allowed


Summary:
The Superintendents of the Delhi High Court by writ petition claimed better rights of promotion objected to their being treated as on par with the Private Secretaries to Judges and Court Masters and being included in a joint seniority list alongwith them particularly as far as the promotion to the next higher post of Assistant Registrar was concerned
The petitioners contended inter alia that there was a violation of Article 14 of the Constitution in treating the posts of Superintendents Court Masters or readers and Private Secretaries to Judges as equal status posts that the sources of recruitment to these posts were not identical and so also the qualifications required for appointments to these posts that the duties of the incumbents of these posts were different that in treating these posts as equal status posts unequals had been treated equally and the rule of equality had been violated
Dismissing the petition the Court HELD Where an employer has a large number of employees performing diverse duties he must enjoy some discretion in treating different categories of his employees as holding equal status posts or equated posts as questions of promotion or transfer of employees inter se will necessarily arise for the purpose of maintaining the efficiency of the organisation
781C D PG NO 772 PG NO 773 There is nothing inherently wrong in an employer treating certain posts as equal posts or equal status posts provided that in doing so he exercises his discretion reasonably and does not violate the principles of equality enshrined in Articles 14 and 16 of the Constitution
781D E For treating certain posts as equated posts or equal status posts it is not necessary that the holders of these posts must perform the identical functions or that the sources of recruitment to the posts must be the same nor is it essential that the qualifications for appointments to the posts must be identical
But there must not be such difference in the pay scales or qualifications of the incumbents of the posts or in their duties or responsibilities or regarding any other relevant factor that it would be unjust to treat the posts alike and posts having substantially higher pay scales or status in service or carrying substantially heavier responsibilities and duties or otherwise distinctly superior cannot be equated with the posts carrying much lower pay scales or substantially lower responsibilities and duties or enjoying much lower status in service
781E G The petitioners could not challenge the aforesaid posts being treated as equal status posts as that had been done in accordance with the Seniority Rules of 1971 the vires of which had not been challenged
782B Neither the combined seniority list nor the treating of the said posts as equal status posts could be said to be arbitrary in the absence of any material particularly in view of the fact that the Chief justice and the Judges of the High Court had taken the view that it was necessary in order to provide adequate promotional opportunities to the various sections of the employees
784D The challenge to the said posts being treated as equal status posts had come too late in 1970 to be entertained in a writ petition after the seniority Rules of 1971 became effective
This challenge could be negatived on the ground of delay or latches apart from other considerations
784E G There was nothing unreasonable in the restriction that out of the total number of candidates who satisfied the eligibility requirement the zone of consideration would be limited to a multiple of 3 to 5 times the number of vacancies or in determining the persons to be considered on the basis of their seniority in the combined seniority list
It was open to the High Court to restrict the zone of consideration in any reasonable manner and limiting the PG NO 774 zone of consideration to a multiple of the number of vacancies and basing it on seniority according to the combined seniority list cannot be regarded as arbitrary or capricious or mala fide nor can it be said that such a restriction violates the principle of selection on because even experience in service is a relevant consideration in assessing merit
791C E It is not as if either Rule 7 of the Establishment Rules of 1972 or Rule 5 of the seniority Rules of 1971 which provides for a combined seniority list negatives the chance of promotion to the posts of Assistant Registrars being granted to the Superintendents
794A B So far as the zone of consideration is Limited by the competent authority in a manner not inconsistent with the Rules or in a manner not arbitrary or capricious or mala fide the validity of the decision to limit the zone of consideration cannot be called in question on the ground that the manner in which the zone was limited was not uniform
795D E V T Khanzode and Ors
vs Reserve Bank of India and Anr  Guman Singh vs State of Rajasthan und Ors  Sant Ram Sharma vs State of Rajasthan and Anr 19688 1 SCR III Reserve Bank of India vs NC Paliwal and Ors   Ashok Kumur Yadav and Ors etc
vs State of Haryana and Ors etc 1985 Suppl
1 SCR 657 VJ Thomas and Ors
vs Union of India and Ors
 l1985 Suppl
SCC 7 Madan Mohan Saran and Anr
vs Hon ble the Chief Justice and Ors and Mahesh Prasad Srivastava vs Abdul Khair  referred to