Shahid vs State of U.P.

Barkat Ali Zaidi, J.—Appellant-accused Shahid has been convicted in S.S.T. No. 73 of 2004, u/s 20 (B) (ii) (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act) by Addl. Sessions Judge, Fast Track Court No. 1, Saharanpur by judgment and order dated 18.6.2005 and sentenced to 6 year R.I. and a fine of Rs. 30,000 in default, further imprisonment for one year.

He has sent this appeal from jail.

Heard Sri Shiv Shanker Yadav, amicus curiae for the Appellant and Sri Sanjay Sharma, Addl. Government Advocate for the State.

The counsel for the accused-Appellant has confined his arguments on the question of sentence only.

It will be seen that the sentence for small quantity of smack provided under the ''Act'' is maximum 6 months and a fine of Rs. 10,000. The proper course to determine the quantity would be to enhance the sentence in proposition to the quantity recovered in excess of the small quantity. To explain the proposition, further if 200 gms. charas is recovered, the sentence should be similarly enhanced to one year from 6 months and so on.

In accordance with the calculation, the sentence which the accused deserves, on basis of recovery of 490 gms. charas comes, to two and a half year rigorous imprisonment and a fine of Rs. 50,000.

The accused has been awarded a fine of Rs. 30,000 and the sentence in default of payment of fine, would come to seven and a half month because the sentence in default of payment of fine has to be 1/4th of the substantial sentence. Accused has, therefore, to undergo seven and a half month imprisonment, in default of payment of fine.

Calculating in this manner, the total, sentence which has to be awarded to the accused comes to two and a half year plus seven and a half month, which comes to three year and one and a half month.

The accused has already undergone a sentence of three year, nine months and twenty days in jail. He is, therefore, entitled to be released now.

The appeal is accordingly allowed, and the accused shall now be released.

The fee of the amicus curiae Sri Shiv Shanker Yadav is fixed at rupees five thousand.