Gauhati High Court
Karabi Sonowal vs The State Of Assam And Anr on 12 February, 2025
Page No.# 1/6
GAHC010236222024
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./459/2024
KARABI SONOWAL
W/O SRI RAJIB SONOWAL,
R/O VILL- RAJABARI SONOWAL GAON, P.S. BORHOLLA, DIST. JORHAT,
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM
2:MD. NURTAZ ALI
S/O LATE IDRISH ALI
BORHOLLA P.S.
DIST. JORHAT
ASSA
Advocate for the Petitioner : MR. R CHETRI, MR. T DEURI,MR N MILI,MR U SAIKIA
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
12.02.2025
1. Heard Mr. T. Deuri, the learned counsel for the petitioner. Also
Page No.# 2/6
heard Mr. R.J. Baruah, the learned Additional Public Prosecutor, Assam.
2. The learned counsel for the petitioner has submitted that though
the petitioner has filed revision under Section 438/442 read with Section
528 of the BNSS, 2023 impugning the judgment and order dated
09.09.2024, passed by the Court of the learned Special Judge, Jorhat in
Special (NDPS) Case No. 44/2021, whereby the petitioner was convicted
under Section 22(b) of NDPS Act, 1985 and was sentenced to undergo
rigorous imprisonment for 3 years and to pay a fine of Rs. 10,000/-
(Rupees Ten Thousand) only, and in default of payment of fine to undergo
rigorous imprisonment for another 3 months. However, the learned
counsel for the petitioner submits that this revision may be converted into
an appeal as according to him an appeal lies against the impugned
judgment under Section 415 of the BNSS.
3. The learned counsel for the petitioner submits that though on
the first look, it appears that in any case where the sentence imposed is
less than 7 years by a Sessions Court or Additional Sessions Court or any
other Court, no appeal lies and only in case of sentence more than 7 years
appeal lies. However, he relies on the judgment of the Division Bench of
the Madras High Court in the case of G. Sheik Mohaideen Vs. S.
Deivendran (Crl.R.C. (MD) No. 841 of 2011, wherein, the Madras
High Court has observed as follows:-
"20. Section 374 (2) Cr.P.C. reads as under:
"374 Appeals from convictions:
(2) Any person convicted on a trial held by
Page No.# 3/6
a Sessions Judge or an Additional
Sessions Judge or on a trial held by any
other Court in which a sentence of
imprisonment for more than seven years
has been passed against him or against
any other person convicted at the same
trial, may appeal to the High
Court."
(emphasis supplied)
Section 374 (2) Cr.P.C. uses the
expression "a Sessions Judge or an
Additional Sessions Judge". Thus, the
determinative factor is not the "Court",
but, the "Judge". As stated above, a
Special Court under the TNPID Act can be
manned only by a person of the rank of a
District and Sessions Judge. Thus, when a
Judicial Officer of
the rank of a District and Sessions Judge
passes an order of conviction and
sentence, the appeal would lie only to the
high Court under Section 374(2) Cr.P.C.
To close our eyes to the rank of the
Judicial Officer and to hold on to the
expression "any other Court" in Section
374 (2) Cr.P.C. and conclude that an
Page No.# 4/6
appeal against sentence of less than
seven years by the Special Court should
be to the Sessions Court, and that if it is
more than seven years, the appeal should
lie to the High Court, would amount to
missing the wood for the trees. It is
beyond cavil that an appeal against a
conviction or acquittal by the Special
Court under the TNPID Act will lie only to
the High Court, irrespective of the
quantum of sentence imposed by the
Special Court."
4. Relying on the aforesaid judgment, the learned counsel for the
petitioner submits that since in this case also the impugned judgment of
conviction and sentence was imposed by the Court of the learned Special
Judge (POCSO) and the presiding officer of the said Court is in the rank of
the Sessions Judge, the ratio of the aforesaid judgment would be
applicable and an appeal lies against the judgment of the special Court,
even if the sentence imposed is less than 10 years.
5. On the other hand, the learned Additional Public Prosecutor Mr.
R.J. Baruah submits that plain reading of Section 415 would show that an
appeal lies to High Court from a judgment of Sessions Judge or Additional
Sessions Judge or any other Court only when the sentence imposed is
more than 7 years.
Page No.# 5/6
6. He submits that there is no statutory provision for preferring an
appeal to the High Court where the sentence imposed is less than 10
years.
7. I have considered the submissions made by the learned counsel
for the parties and have perused the rulings cited by the learned counsel
for the petitioner.
8. Though the Madras High Court has in the judgment cited above
has held that an appeal against conviction by the Special Court under
TNPID Act, will lie to the High Court irrespective of quantum of sentence
imposed by the Special Court. However, this Court is unable to persuade
itself with the reasoning of the said Court in view of the clear and
unambiguous language used in Section 415 (2) which provides for an
appeal to the High Court from a judgment of conviction passed by the
Sessions Judge or by the Additional Sessions Judge or by any other Court,
only in the event when the sentence imposed is of more than 7 years. The
clear and unambiguous language used in Section 415 would show that
appeal would not lie before the High Court in case the sentence imposed
is less than 7 years. In such cases the aggrieved person shall have to avail
other remedies available in the statute.
9. In view of the above, the prayer for converting the present
revision into an appeal is rejected.
10. Issue notice to the respondents.
11. Since the learned Additional Public Prosecutor has appeared for
respondent No. 1, no formal notice needs to be issued. However, as
Page No.# 6/6
regards, the respondent No. 2, the learned counsel for the petitioner shall
take steps for issuance of notice on the respondent No. 2 by registered
post with A/D as well as by usual mode within 7 (seven) days from the
date of this order, returnable on 24th March, 2025.
12. Let also the records of Special (NDPS) Case No. 44/2021 be
requisitioned from the trial Court. The Registry to take steps for
requisitioning the records of the Trial Court.
13. List accordingly.
JUDGE
Comparing Assistant
