Gauhati High Court
Monser Ali vs The State Of Assam on 15 July, 2024
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GAHC010131472024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/612/2024
MONSER ALI
S/O LATE HASHEM ALI,
R/O NO. 3, BAGHMARA CHAR,
P.O.- BAGHMARA,
P.S.- ALOPATI CHAR,
DIST.- BARPETA, ASSAM.
VERSUS
THE STATE OF ASSAM,
REP BY THE PP ASSAM
Advocate for the Petitioner : MR F HAQUE
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 15-07-2024
1. Heard Mr. F. Haque, learned counsel for the applicant. Also heard Mr. B.
Sarma, learned Additional Public Prosecutor for the State.
2. This application under Section 389 of the Code of Criminal Procedure,
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1973 has been filed by the applicant, namely, Monser Ali who praying for
suspension of the execution of sentence passed in the judgment and order
dated 01.03.2023 passed by the learned Special Judge, Goalpara in Special
(NDPS) Case No. 14 of 2022, whereby the present applicant was sentenced to
undergo rigorous imprisonment for 10(ten) years and to pay a fine of
Rs.1,00,000/- (Rupees One Lakh) for the offence under Section 22(c) of the
NDPS Act, 1985 with default stipulation of rigorous imprisonment for a term of
3(three) years in the event of failure to pay the imposed fine.
3. The learned Additional public prosecutor has pointed out that the
present applicant has earlier also referred an application under Section 389 of
the Code of Criminal Procedure, 1973, in the connected appeal i.e., Criminal
Appeal No. 130/2023 which was rejected by this Court by order dated
21.11.2023.
4. The learner counsel for the applicant has submitted that the present
applicant has been detained behind the bars since 29.03.2022 and he has a four
years old child and who was born while he was detained behind the bars and to
meet his child, it is prayed that he may be granted at least 15 days interim bail
in terms of bail in this case. It is also submitted that his family is suffering due
to flood.
5. Learned counsel for the applicant has also submitted that the applicant
was the driver of the vehicle and he was not in conscious possession of the
contraband which was seized in the case.
6. On the other hand, learned Additional Public Prosecutor has submitted
that the plea taken by the learned counsel for the applicant on merit was earlier
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considered by this Court while considering Interlocutory Application No.
498/2023 and after due consideration of the pleas, the prayer for suspension of
sentence was rejected.
7. As regards the other pleas taken by the learned counsel for the
applicant, the learned Additional Public Prosecutor submits that as the present
case involves commercial quantity of contraband, hence it may not be
appropriate to suspend the sentence imposed on the applicant at this stage,
more so, when his earlier application for suspension of sentence was rejected.
8. I have considered the submissions made by the learned counsel for the
rival parties and have perused the materials available on record.
9. It appears that after due consideration of the submissions of the
learned counsel for the applicant, the earlier application under Section 389 of
the Code of Criminal Procedure, 1973 filed by the present applicant was rejected
as this Court found nothing varying or apparent on the face of record which may
prima facie lead to the satisfaction that the conviction of the appellant may not
be sustained while rejecting his earlier application for suspension of sentence.
The petitioner has not made out any different case and the plea raised by the
learned counsel for the applicant were considered while rejecting his earlier
application also and the new pleas taken by the learned counsel for the
applicant, in the considered opinion of this Court, does not justify suspension of
the sentence of the present applicant considering the fact that prima facie there
is nothing on record at this stage which would lead this Court to an opinion that
the sentence imposed on the applicant may not be sustained. Hence, as the
quantity of contraband seized in this case was commercial quantity, Section 37
of the NDPS Act, 1985 is applicable even in the case of an application under
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Section 389 of the Code of Criminal Procedure, 1973.
10. For reasons discussed hereinbefore, this application for suspension of
sentence of the applicant is rejected.
11. The applicant may, however, be at liberty to make a separate prayer for
out of turn listing and expeditiously hearing of the connected appeal.
12. With the above observation, this interlocutory application is hereby
disposed of.
JUDGE
Comparing Assistant
