Page No.# 1/11 GAHC010143712026 2026:GAU-AS:9902 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1012/2026 JAHED ALI S/O MOFIZUDDIN, PERMANENT R/O VILL UDMARI, PS JURIA, DIST NAGAON, ASSAM VERSUS THE STATE OF ASSAM TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR SARFRAZ NAWAZ, MR. A TARAFDAR,MD A RAHMAN,MR. SURAJIT DAS,MR A W AMAN Advocate for the Respondent : PP, ASSAM, Page No.# 2/11 BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 20.07.2026 Learned counsel, Mr. S. Nawaz is present for the petitioner. Also heard Mr. R.J. Baruah, learned Additional Public Prosecutor for the State. 2. The petitioner, namely, Jahed Ali, has filed this application under Section 528 BNSS, 2023, with a prayer to set aside and quash the impugned order dated 19.02.2026, passed by the learned Special Judge (NDPS), Lakhimpur, North Lakhimpur in connection with Special (NDPS) Case No.8/2022. 3. It is submitted that the petitioner, namely, Jahed Ali had filed the petition under Section 311 of Cr.PC to re-examine PW-1, PW-2, PW-3 and PW-4. 4. The learned Special Judge vide impugned order dated 19.02.2026 allowed the petitioner to cross-examine PW-1 but rejected the prayer of the petitioner to cross-examine PW-2, PW-3 and PW-4. 5. The learned Additional Public Prosecutor has raised serious objection stating that at this juncture, the petitioner cannot be allowed to fill in the lacunae. It is submitted that the PWs were cross-examined way back in the year 2023. At the fag end of the trial, the petitioner has prayed to cross- examine PW-2, PW-3 and PW-4. 6. It is submitted that the statements of the accused have already been recorded u/s 313 Cr.PC and in the event, the witnesses are allowed to be further cross-examined, the statements of the accused has to be recorded Page No.# 3/11 again, at the fag end of the trial as this case has been fixed for final argument. 7. It is further submitted that PW-4 was cross-examined extensively and no more cross-examination is required. 8. Per contra, the learned counsel for the petitioner has stressed in his argument that this is not a case of filling up lacunae. The learned counsel for the petitioner has stressed on re-examination of atleast PW-4 as PW-4 is an important witness. The petitioner would be highly prejudiced, if PW-4 is not re- examined. 9. It is also submitted that the apprehension of the trial court that due to engagement of a new set of lawyers, repeated examination of prosecution witnesses would amount to filling up the lacunae, is not correct. It cannot be presumed, that once witnesses are re-examined, on account of a change of lawyers, then the witnesses may pray for re-examination on change of another set of lawyers. It is submitted that if the following questions are not asked and if the PW-4 is not examined on the following points, the petitioner would be highly prejudiced. The following points are – i) Whether prior written notice was given to the witness before charge and seizure by the seizing officer? ii) Whether before searching the vehicle/vehicles, the body of the seizing police team or body of the witnesses were searched by any other person or by the accused persons? iii) Whether Section 50 of the NDPS Act was complied with by the seizing police team? Page No.# 4/11 iv) Whether prior written authority letter to search and seize the vehicle was obtained by the seizing officer from his superior police officer? v) Whether Sections 41/42/48/55/56 of the NDPS Act were followed by the seizing officer or the I/O during the operation or investigation? vi) Question relating to preparation of duplicate sample, representative sample to send to F.S.L? vii) Question relating to police malkhana register and videography? viii) Question relating to preparation of inventory before the local Magistrate? ix) Question relating to presentation of remnant of the sample along with the charge-sheet? 10. It further submitted that the apprehension of the trial court may be addressed by according the petitioner a last opportunity to the petitioner to re- examine at least PW-4. 11. The learned Additional Public Prosecutor has relied on the decision of the Supreme Court in Rajaram Prasad Yadav Vs. State of Bihar, reported in (2013) 14 SCC 461, wherein it has been held that – 17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Page No.# 5/11 Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts : 17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case? 17.2. The exercise of the widest discretionary power under Section 311 Cr.PC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person. 17.4. The exercise of power under Section 311 Cr.PC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The Court must satisfy itself that it was in every respect essential Page No.# 6/11 to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 Cr.PC simultaneously imposes a duty on the court to determine the truth and to render a just decision. 17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. Page No.# 7/11 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 Cr.PC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned must be ensured being a constitutional goal, as well as a human right. 12. The learned counsel for the petitioner has submitted that, indeed, the exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused/petitioner, resulting in a miscarriage of justice. So stating, the learned counsel for the petitioner has relied on the earlier decision of the Court in Rajendra Prasad Vs. Narcotic Cell, reported in (1999) 6 SCC 110, wherein it has been held as follows – “6. Learned counsel for the appellants contended that the trial court failed to appreciate that in the garb of exercise of powers under Section 311 of the Code, a court cannot allow the prosecution to re- examine prosecution witnesses in order to fill up lacuna in the case. Lacunae, as pointed out by the learned counsel, were the following : Page No.# 8/11 (a) PW 21 Dalip Singh was never tendered by the prosecution for cross- examination. (b) PW 4 Suresh Chand Sharma was also not cross-examined by the State. (c) There was no link evidence to correct the testimony of PW 28 H/C Jai Prakash. That aspect was highlighted during arguments in the trial court, before the Court resorted to the impugned steps. The above contention was based on the observation made by this Court in Mohanlal Shamji Soni Vs. Union of India that the Court while exercising its power under Section 311 of the Code shall not use such power “for filling up the lacuna left by the prosecution”. 7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the Court could not “fill the lacuna in the prosecution case.” A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage “to err is human” is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent Page No.# 9/11 weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.” 13. I have considered the submissions made at the Bar with circumspection. 14. As the learned counsel for the petitioner has laid stress on the re- examination of PW-4, it appears that PW-4 can be re-examined. However, the petitioner’s prayer to re-examine PW-2 and PW-3 is not considered. Indeed, no party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified as the function of the criminal court is administration of criminal justice and not to count errors committed by the parties. 15. In the light of the decision of Supreme Court in Rajaram Prasad Yadav (supra) and Rajendra Prasad (supra), it appears that the petitioner may be allowed to re-examine the PW-4 only on the following points only and not on any other points : Page No.# 10/11 i) Whether prior written notice was given to the witness before charge and seizure by the seizing officer? ii) Whether before searching the vehicle/vehicles, the body of the seizing police team or body of the witnesses were searched by any other person or by the accused persons? iii) Whether Section 50 of the NDPS Act was complied with by the seizing police team? iv) Whether prior written authority letter to search and seize the vehicle was obtained by the seizing officer from his superior police officer? v) Whether Sections 41/42/48/55/56 of the NDPS Act were followed by the seizing officer or the I/O during the operation or investigation? vi) Question relating to preparation of duplicate sample, representative sample to send to DFS, vii) Question relating to police malkhana register and videography, viii) Question relating to preparation of inventory before the local Magistrate, and ix) Question relating to presentation of remnant of the sample along with the charge-sheet. 16. The prayer to re-examine only PW-4 is allowed. The learned trial court shall issue summons to PW-4 on a date to be fixed by the Court and an Page No.# 11/11 opportunity shall be granted by the Court to the petitioner to re-examine/cross- examine PW-4. 17. Endeavour shall be made by the Court to complete the process of re- examination and cross-examination of PW-4 in an expeditious manner. 18. In terms of the above observations, this petition stands disposed of. JUDGE Comparing Assistant