Research › Search › Judgment

Gauhati High Court · body

2026 DAILYLAW 10693 (GAU)

Ashraful Islam, S/o Asmot Ali v. State of Assam

2026-04-06

Pranjal Das

body2026
JUDGMENT : PRANJAL DAS, J. Heard Mr. D. Ullah, learned counsel for the applicant. Also heard Mr. R.J. Baruah, learned APP for the State. 2. Invoking the provisions of Section 430 of the BNSS, 2023, the applicant/convict–appellant seeks suspension of sentence and grant of bail in connection with the Judgment and Order dated 27.10.2025 passed by the learned Special Judge, Dhubri (Additional Sessions Judge) in Special NDPS Case No. 333 of 2023, whereby the applicant/appellant was convicted under Section 22(c) of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/-, and in default, to undergo rigorous imprisonment for 1 year. 3. The learned counsel for the applicant has taken this Court through the depositions of the prosecution witnesses, particularly the seizure witnesses examined during trial as P.W.2, P.W.3 and P.W.4 etc. It is submitted that none of the alleged independent seizure witnesses have supported the prosecution case regarding the seizure of the alleged contraband from the possession of the applicant. 4. It is further submitted that one of the seizure witnesses has been declared hostile during trial. The other seizure witnesses have categorically stated that their signatures were obtained on blank papers, which seriously undermine the credibility of the alleged seizure and renders the prosecution case doubtful. 5. In such circumstances, it is submitted that the very foundation of the prosecution case, i.e., the recovery and seizure of contraband, is rendered unreliable and untrustworthy. Hence, a strong prima facie case is made out in favour of the applicant for suspension of sentence pending disposal of the appeal. 6. It is further submitted by the learned counsel for the applicant/appellant that the applicant has a strong case on merits and there exists a reasonable likelihood of acquittal in the appeal. It is contended that the applicant is a young person aged about 25 years, and therefore, considering his age and the arguable points involved in the appeal, the sentence may be suspended and the applicant be released on bail pending adjudication of the appeal, which is likely to take considerable time in the normal course. 7. It is contended that the applicant is a young person aged about 25 years, and therefore, considering his age and the arguable points involved in the appeal, the sentence may be suspended and the applicant be released on bail pending adjudication of the appeal, which is likely to take considerable time in the normal course. 7. Drawing the attention of this Court to the cross-examination of P.W. 8, S.I. Ankur Jyoti Bora, who was part of the police team conducting the operation - it is submitted that the said witness has not stated about the presence of the D.S.P. (P.W. 5, Chandan Kumar Kalita) at the place of occurrence during the operation. That, this omission creates a serious doubt regarding the presence of key prosecution witnesses and further weakens the prosecution case. 8. It is submitted that such inconsistencies and omissions in the evidence of prosecution witnesses cast a grave doubt on the prosecution version and further strengthen the case of the applicant for suspension of sentence. 9. On the other hand, the learned Additional Public Prosecutor has opposed the prayer for suspension of sentence by contending that there is no sufficient merit in the application. Reliance has been placed on the settled legal position as laid down by the Hon’ble Supreme Court in Dadu @ Tulsidas vs. State of Maharashtra, reported in (2000) 8 SCC 437 , wherein it has been held that while considering suspension of sentence in NDPS cases, the rigours of Section 37 of the NDPS Act are required to be kept in view. Further, reliance has been placed on the decision in Om Prakash Saini vs. Jay Shankar Choudhury, reported in 2023 LiveLaw (SC) 389, to contend that the conditions prescribed under Section 37 of the NDPS Act act as a bar, unless satisfied. 10. It is submitted by the prosecution that the General Diary (G.D.) entries recorded at the time of receipt of initial information as well as at the time of departure of the police team for the search operation have been duly exhibited during trial. It is further submitted that four police personnel were named in the FIR in connection with the search operation, and from the testimonies of P.W. 5, P.W. 6, and P.W. 7, it clearly emerges that they had witnessed the seizure of the contraband, which was allegedly thrown by the applicant just prior to the naka checking. 11. It is further submitted that four police personnel were named in the FIR in connection with the search operation, and from the testimonies of P.W. 5, P.W. 6, and P.W. 7, it clearly emerges that they had witnessed the seizure of the contraband, which was allegedly thrown by the applicant just prior to the naka checking. 11. The learned Additional Public Prosecutor has also taken this Court through the relevant portions of the impugned judgment and submitted that the learned trial court has assigned cogent reasons for placing reliance upon the testimonies of P.W. 5, P.W. 6, and P.W. 7, despite the seizure witnesses not supporting the prosecution case. 12. It is, therefore, contended that in view of the embargo contained under Section 37 of the NDPS Act, the prayer for suspension of sentence is not liable to be allowed in the facts and circumstances of the present case. 13. I have perused the relevant materials on record and given my anxious consideration to the submissions advanced by the learned counsel for the parties. I have also gone through the decisions cited at the Bar. 14. It is true that the seizure witnesses have not stated anything substantial regarding the seizure of the contraband and have deposed that their signatures were obtained on blank papers at the instance of the police. One of the seizure witnesses has also been declared hostile. However, the learned trial court has assigned reasons for accepting the prosecution case notwithstanding the aforesaid nature of the testimony of the seizure witnesses. 15. I have also perused the testimonies of the official witnesses, namely P.W.5, P.W.6 and P.W.7, who were part of the police team conducting the search operation. These witnesses have consistently deposed that they had seen the applicant/appellant arriving on a two-wheeler, throwing away a packet, and thereafter, upon search, recovery of the contraband from the said packet. The learned trial court has placed reliance on their testimonies. 16. On perusal of the impugned judgment, this Court does not find any blatant error, apparent on the face of the record so as to prima facie indicate that the judgment is unsustainable in law. The correctness or otherwise of the appreciation of evidence would, however, be a matter for consideration at the stage of final hearing of the appeal. 17. On perusal of the impugned judgment, this Court does not find any blatant error, apparent on the face of the record so as to prima facie indicate that the judgment is unsustainable in law. The correctness or otherwise of the appreciation of evidence would, however, be a matter for consideration at the stage of final hearing of the appeal. 17. In view of the aforesaid and having regard to the principles laid down by the Hon’ble Supreme Court in Dadu @ Tulsidas vs. State of Maharashtra, (2000) 8 SCC 437 , this Court is unable to accept the contention of the learned counsel for the applicant that there exist reasonable grounds for believing that the appellant, despite the conviction, is not guilty of the offence. 18. In other words, the conditions as contemplated under Section 37 of the NDPS Act, which are required to be satisfied while considering the prayer for suspension of sentence, are not met in the present case. 19. Accordingly, this Court is of the considered view that the interlocutory application seeking suspension of sentence is devoid of merit and the same is, therefore, dismissed, at this stage. Anything stated in this order does not constitute expression of any opinion on merits regarding the adjudication of the appeal.