Gauhati High Court
Page No.# 1/3 vs The State Of Assam And Anr on 7 June, 2023
Page No.# 1/3
GAHC010104052023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
I.A.(Crl.)/436/2023
ROBINA KHATUN AND ANR.
W/O HANIF ALI
R/O WARD NO. 12
SUBHASH NAGAR
P.S.- DHUBRI
DIST.- DHUBRI
ASSAM.
2: HANIF ALI
S/O SAKMAN ALI
R/O WARD NO. 12
SUBHASH NAGAR
P.S.- DHUBRI
DIST.- DHUBRI
ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR.
TO BE REP. BY THE P.P.
ASSAM.
2:S.I CHANDAN RAUT
S/O BACHAN RAUT
R/O SANTIPUR
P.S.- BHARALUMUKH
DIST.- KAMRUP (M)
Page No.# 2/3
ASSAM.
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Advocate for : MR. SURAJIT DAS
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR.
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : --07.06.2023
Heard Mr. S. Das, learned counsel for the applicants/appellants namely, [1] Robina
Khatun and [2] Hanif Ali and Mr. D. Das, learned Addl. P.P. for opposite-party/respondent No.
1 State of Assam.
Both the applicants have filed this application u/s 389 of the Code of Criminal
Procedure, 1973 with prayer for bail and suspension of order of conviction and sentence vide
order dated 10.03.2023 passed by the learned Special Judge, (Additional), Dhubri in Special
Case No. 289/2022 convicting the applicants u/s 22(b) of the NDPS Act to undergo Rigorous
Imprisonment for 5 years and to pay a fine of Rs. 50,000/- with default stipulation.
I have considered the submissions at the bar.
The learned Addl. P.P. has raised objection.
It is submitted on behalf of the applicants that they have been languishing in the jail
since 30.03.2022 and 22.05.2022 respectively. It is submitted at the bar that the learned trail
Court did not even consider the non-compliance of the mandatory provision of Section 55 of
the NDPS Act. There is no evidence to show that the Seizing Officer has handed over the
seized articles to the Officer In-Charge forthwith. It is submitted that there is every possibility
that the applicants will be acquitted. The applicants have relied on the decision of the Hon'ble
Supreme Court in Kiran Kumar Vs. State of M.P., reported in MANU/SC/3530/2000, wherein it
has been observed as follows:
"This Court has held in Bhagwanram Shinde and Ors. V. State of Gujarat
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1999 (39) ACC 302 (SC) that when a person is convicted and sentenced to a short
term imprisonment the normal rule is that when his appeal is pending the
sentence should be suspended and rejection is only by way of exception and be
put forward for such rejection. In such case also every endeavour should be made
to have the appeal posted for early hearing and disposal. If the short term
sentence is allowed to run out during the pendency of the appeal, the appeal itself
will become for all practical purposes, infructuous so far as the appellant is
concerned. It does not mean that the appellate court should suspend the
sentence, if its consequences would be dangerous to the society or any other
similar difficulties."
I have perused the copy of the judgment appended along with the application. I have
considered the submissions that the applicant No. 1 is a mother of two minor children. The
birth certificates of the minor children is marked as Annexure-2 series and appended along
with the petition. The applicant No. 1 has also been behind bars since 30 March, 2022.
Considering all aspects, the applicant No. 1 Smt. Robina Khatun is enlarged on bail or
Rs. 50,000/- with a suitable surety of like amount to the satisfaction of the trial Court. The
trial Court may impose any conditions which the Court deems fit and proper. The order of
conviction and sentence dated 02.03.2022 and 10.03.2023 against the applicant Rubina
Khatun in connection with Special Case No. 289/2022 is suspended until further order(s).
The prayer of Hanif Ali is not considered at this stage.
JUDGE
Comparing Assistant
