389(1) Of The Code Of Criminal ... vs In Re : Md. Habibur Rahaman @ Habu
2022 Latest Caselaw 1389 Cal

22.03.2022

sdas rejected

CRA 115 of 2021 (CRAN 1 of 2021)

In Re : An application for suspension of sentence under Section 389(1) of the Code of Criminal Procedure.

And In Re : Md. Habibur Rahaman @ Habu .... appellant/applicant

Mr. Sekhar Kumar Basu, Sr. Adv.

Mr. Arnab Saha ....... for the appellant/applicant

Mr. Partha Pratim Das Mrs. Manasi Roy ..... for the State

Mr. Basu, learned Senior Counsel appearing for the

appellant/applicant submits although appellant/applicant was

charged under Section 21(c ) of the N.D.P.S. Act he was

convicted for possession of crude opium under Section 18(b) of

the Act. No opportunity of cross-examination of witnesses was

given to the appellant/applicant after alteration of charge. It is

also submitted the chemical examiner's report with regard to

detection of opium is not reflected in the impugned judgment.

Learned Counsel appearing for the State opposes the

prayer for suspension of sentence.

We have looked into the evidence on record and the

exhibited documents to assess the submission made on behalf

of the appellant/applicant. Chemical examiner's report placed

on record shows the presence of crude opium. That apart,

charge recorded at the commencement of trial also refers to

possession of 31.3 kgs. of crude opium in addition to heroin by

the appellant/applicant. Subsequently, the correct provision

of law in the charge was incorporated by altering the charge.

We are of the opinion such alteration is a technical one would

not affect the crux of the accusation which was clearly stated

to the appellant/applicant at the commencement of trial.

Thus, no case to rebut the statutory restrictions under Section

37 of the N.D.P.S. Act is made out justifying suspension of

sentence of the appellant/applicant.

Accordingly, application for suspension of sentence of

the appellant/applicant is turned down.

The application being CRAN 1 of 2021 is, thus, rejected.

Paper books be prepared within eight weeks from date.

Liberty to mention.

(Bivas Pattanayak, J.) (Joymalya Bagchi, J.)