Gauhati High Court
Mahidul Islam vs The State Of Assam on 9 September, 2025
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GAHC010102792024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
I.A.(Crl.)/692/2024
MAHIDUL ISLAM
S/O NASIR MIAH SARKAR
R/O MAHARANI HIRAPUR
P.S.- RADHA KISHORPUR
DIST.- GOMATI
STATE- TRIPURA.
VERSUS
THE STATE OF ASSAM
REP. BY P.P.
ASSAM
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Advocate for : M M RAHMAN
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 09.09.2025
1. Heard learned counsel Mr. M.Rahman for the applicant Mahidul Islam who
has filed this interlocutory application under Section 389 of the CrPC for
suspension of order of conviction and sentence vide order dated 26.02.2024 in
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connection with Special Case No. 115/2024 passed by the learned Special Judge
(Addl.), Dhubri whereby the applicant was convicted under Section 20(b)/(ii)(c)
of NDPS Act and sentenced to undergo rigorous imprisonment for 10 (Ten)
years and to pay fine of Rs. 1,00,000/- (Rupees One Lakh) only, i/d to undergo
rigorous imprisonment for another 1 (One) year in default to undergo simple
imprisonment for one year.
2. It is submitted that the applicant is behind bars for three years, which is
almost half the minimum of the sentence under the aforementioned sections of
law. It is submitted that the Court did not hear any defense witnesses like the
wife, the parents of the accused, the owner of the vehicle and the owner of the
ganja. Neither the investigating officer nor the learned trial court found out the
actual facts of the case. The applicant is a professional driver of a Dumper and
works under his master. The applicant is innocent as on the relevant day, two
partners namely Yusuf Dev Barman and Dharman Dev Barman of Tripura called
him as well as the other accused persons. The applicant was requested by them
to drive two vehicles for a consideration of Rs. 5000/- per vehicle.
3. It is further contented that the police recorded the statements of the
driver of the recovery van and two mechanical boys, but all of them stated that
cannabis was recovered from the vehicle bearing registration no. AS23C-6256
but the applicant was the driver of the vehicle bearing registration no. AS23C-
4199.
4. It is further submitted that the statements of the seizure witnesses clearly
reveals that the seizure witnesses have not supported the prosecution case. The
police took signature of PW-2 on a blank piece of paper. PW-2 also could not
recall the number of the vehicle carrying the ganja. His evidence clearly depicts
that the seizure list was not read over to him and he could not mention the
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amount of the contraband seized in connection with the case. The other
contradiction is that no pagination is evident in the Malakhana Register and the
storage of ganja in safe custody has been disputed. It is further submitted that
there are contradictions evident in the evidence of PW-1 vis-a-vis the informant
and the I.O. of this case. It is further contended that the authorization letter
was received on the following day, which is illegal. It is further submitted that
there is every possibility that the applicant may be acquitted and thereby the
applicant is entitled to bail and sentence may be suspended.
5. Per-contra, the learned Additional Public Prosecutor, Mr. P. Borthakur has
submitted that the petitioner has pre-maturedly laid stress on the violation of
provisions of Sections 42 and 43 of the NDPS Act. Seven witnesses were
examined in this case and PW-2 to PW-5 are seizure witnesses. It is submitted
that the evidence of seizure witnesses i.e PWs-2, 3, 4 and 5 clearly reveals that
they were present when the two vehicles collided with each other at the time of
Naka checking and ganja packets were found in the Santro and another vehicle
was being occupied by the applicant.
6. PW-2 has categorically stated that he could identify the accused person.
When he was boarding a passenger bus, he heard a huge "thud" and saw two
Santro cars colliding with the police vehicle. He also saw ganja inside the
dashboard and the headlight of the Santro vehicles and his signature was taken
on a piece of paper.
7. I have considered the submissions at the bar and the evidence projected
by the learned counsel for the applicant and the learned Addl. Public Prosecutor.
8. At this juncture, it is not necessary to consider the intricacies and the
merits of the case. It is true that the applicant has been behind bars since the
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date of his arrest in connection with the case i.e. on 19.01.2023.
9. I have also scrutinized the reasons recorded by the learned trial court. At
this stage, while disposing of a petition for bail and for suspension of sentence,
this court is hesitant to put forth the merits of this case. However, considering
all aspects, this Court is reluctant to grant bail and pass an order of suspension
of the operation of the Judgment and Order impugned by the applicant.
10. In view of the foregoing discussions, the interlocutory application under
section 389 CrPC stands rejected at this stage.
11. This interlocutory application stands disposed of.
JUDGE
Comparing Assistant
