# Shahid v. State of U.P - **Citation:** (2008) 2 ILRA 598 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2008-05-22 - **Case number:** Criminal Jail Appeal No.2841 of 2005 - **Bench:** Barkat Ali Zaidi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahid-v-state-of-u-p-41287 - **Pages:** 2 ## Headnote A.G.A. Narcotic Drugs and Psychotropic Substance Act 1985-Section 20 (B)(ii)(b)-sentence for small quantity of smack 200 gms.-maximum punishment 6 months and fine of Rs.10,000/- recover 2 All] Shahid V. State of U.P. 599 of 490 gram charas comes 3 and 1⁄2 years-appellant already undergone 3 years 9 month R.I. with fine of Rs.30,000/-held-entitled for releasedAppeal allowed. ## Text 598 INDIAN LAW REPORTS ALLAHABAD SERIES [2008 six miles from the village and handed over written report of the occurrence to the police there at 11.15 a.m. and then the injured was sent to the hospital where he was medically examined at 11.45 noon. PW 1 Ram Bahadur is an injured witness who sustained injury at his scalp which cannot be self-inflicted. Thus his presence at the scene of occurrence cannot. be doubted. Likewise PW 2 Lal Karan stated that he was cutting fodder in his field which is near the pathway where the occurrence took place. On the shrieks of the victim he rushed to the spot and witnessed the occurrence. Site plan which was prepared and proved by Investigating Officer shows that the field of Lal Karan where he was cutting fodder was situate near the scene of occurrence. He too was subjected to searching and gruelling cross-examination but his testimony was intact on material particulars of the case. No doubt he sided Janki in litigation between Ram Lal and Janki but his testimony stands corroborated by the testimony of injured witness PW 1 Ram Bahadur. Testimony of both the eye witnesses finds corroboration with medical evidence and F.I.R. of the occurrence lodged promptly at the police station without losing any time. Thus evidence of both the eye witnesses cannot be rejected even though they were close to the deceased and inimically disposed towards the accused. 24. In view of above discussion this Court arrives at the conclusion that the learned trial judge failed to appreciate evidence on the record in its true perspective and discarded the evidence of two eye witnesses including one injured. For the above, the impugned judgement cannot be sustained in law and is liable to be set aside. 25. Government Appeal and Criminal Revision are, therefore, allowed and impugned judgement and order passed by V Additional Sessions Judge, Bareilly acquitting the accused respondents is set aside. Accused Narain and Chhadammi are convicted under sections 302 and 307 each read with section 34 I.P.C. and each of them is sentenced to undergo imprisonment for life and five years' rigorous imprisonment respectively thereunder. Both the sentences shall run concurrently. Both the accused respondents are in jail. They shall serve out the sentence imposed upon them. 26. Office is directed to send copy of the judgement and record of the lower court to the court below immediately for necessary compliance. --------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 22.05.2008 BEFORE THE HON'BLE BARKAT ALI ZAIDI, J. Criminal Jail Appeal No.2841 of 2005 Shahid ...Accused-Appellant Versus State of U.P. ...Respondents Counsel for the Appellant: Sri Shiv Shanker Yadav (Amicus Curiae) Counsel for the Respondent: A.G.A. Narcotic Drugs and Psychotropic Substance Act 1985-Section 20 (B)(ii)(b)-sentence for small quantity of smack 200 gms.-maximum punishment 6 months and fine of Rs.10,000/- recover 2 All] Shahid V. State of U.P. 599 of 490 gram charas comes 3 and 1⁄2 years-appellant already undergone 3 years 9 month R.I. with fine of Rs.30,000/-held-entitled for releasedAppeal allowed. (Delivered by Hon'ble Barkat Ali Zaidi, J.) 1. Appellant-accused Shahid has been convicted in S.S.T. No. 73 of 2004, under Section 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. 2. He has sent this appeal from jail. 3. Heard Sri Shiv Shanker Yadav, Amicus Curiae for the appellant and Sri Sanjay Sharma, Addl. Government Advocate for the State. 4. The counsel for the accusedappellant has confined his arguments on the question of sentence only. 5. It will be seen that the sentence for small quantity of smack provided under the 'Act' is maximum 6 months an 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. 6. 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/- 7. 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 to be 1/4th of the substantial sentence. Accused has, therefore, to undergo speven and a half month imprisonment, in default of payment of fine. 8. 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. 9. 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. 10. The appeal is accordingly allowed, and the accused shall now be released. 11. The fee of the Amicus Curiae Sri Shiv Shanker Yadav is fixed at rupees five thousand. Appeal Allowed. --------- REVISIONAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 22.05.2008 BEFORE THE HON'BLE VIJAY KUMAR VERMA, J. Criminal Revision No. 3431 of 2007 Daya Ram ...Revisionist Versus State of U.P and others ...Respondents