Gauhati High Court
Sri Hemen Gogoi vs The State Of Assam on 6 August, 2020
Author: P.K.Deka
Bench: Suman Shyam, P.K.Deka
Page No.# 1/3
GAHC010178052019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.) 779/2019
1:SRI HEMEN GOGOI
S/O- LATE JURAM GOGOI
R/O- VILL.- BORMUR
P.O. KALAKATA
P.S. AND DIST.- DHEMAJI
ASSAM.
VERSUS
1:THE STATE OF ASSAM
REP. BY THE P.P.
ASSAM
Advocate for the Petitioner : MR. A KHANIKAR
Advocate for the Respondent : PP
ASSAM
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
THE HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
ORDER
Page No.# 2/3 06.08.2020 (P.K.Deka,J) Heard Mr. A. Khanikar, the learned counsel for the applicant and Ms. S. Jahan, the learned Addl. P.P. Assam.
The applicant has filed this application under Section 389 of the Cr.P.C. for suspending the sentence passed against the applicant vide judgment and order dated 04.07.2019 by the learned Sessions Judge, Dhemaji in Sessions Case No. 127(DH)/2011 convicting the applicant under Section 10(a)(iv) of the Unlawful Activities (Prevention) Act, 1967 sentenced to undergo rigorous imprisonment for a term of 2 years and to pay a fine of Rs. 5,000/- in default a further term of rigorous imprisonment of 2 months and also convicting him under Section 13(2) of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred as UA(P) Act) and sentenced him to undergo rigorous imprisonment for 4 years and fine of Rs. 5,000/- in default R.I. for 2 months.
It is submitted by Mr. A. Khanikar that the learned court below held the involvement of the applicant along with one Chandra Nath Gogoi as both of them gave shelter to ULFA members in their house. On 15.08.2004 and prior to the said date, they were busy with construction work of their house at Dhemaji Jyoti Nagar away from their residence they were residing at that relevant point of time. Hemen Gogoi produced one bag containing some articles like toothpaste, gamocha, a knife and one pocket diary. The said bag was seized by PW-44, Indreswar Hazarika, the ASI of the police. Citing the aforesaid finding, Mr. Khanikar submitted that there was no definite proof and/or manner in which the applicant assisted the unlawful organization in carrying out the unlawful activities of ULFA.
Ms. Jahan, the learned Addl. P.P without controverting the submission of Mr. Khanikar submitted that leaving aside the said attribution of producing the bag, no other acts are found to be attributed in the judgment nor in the confessional statements of various accused persons under Section 164 Cr.P.C. which were proved before the court below.
We have given due consideration to the submissions of the learned counsel and perused the records including the statements made by the accused persons under Section 164 Cr.P.C duly proved at the time of trial before the court below. There are no any specific Page No.# 3/3 act of assisting the ULFA members by the applicant Hemen Gogoi. The PW-44, Sri Indreswar Hazarika in his cross examination for the applicant stated that he did not enquire on the relevant date whether they (ULFA Members) were in the house or not of the applicant. The said piece of cross-examination is relevant as the seizure was made on 24.08.2004 and on the other hand, the incident of bomb blasting took place on 15.08.2004. The learned court below on the basis of the statement of PW-44 held the applicant to be involved with the accused persons. He was convicted under Section 10(a)(iv) and 13(2) of the UA(P) Act, 1967. Sections 10(a)(iv) prescribes the penalty for being member of an unlawful association and in any way assist the operation of such association. On the other hand, Section 13(2) requires the person to assist any unlawful activity of any unlawful association declared so by Section 3 of the UA(P) Act, 1967. Prima facie we are satisfied at this stage, that the conviction of the applicant Sri Hemen Gogoi under the said provisions of the Act, 1967 has given rise to a debatable issue in the appeal.
Accordingly we are satisfied to suspend the operation of the sentence against the applicant Sri Hemen Gogoi and allow him to go on bail furnishing bail bond of Rs. 20,000/- (Twenty Thousand) only to the satisfaction of the learned Sessions Judge, Dhemaji with 2 (two) local sureties of the same amount subject to further conditions that may be imposed by the learned Sessions Judge, Dhemaji.
Accordingly, this Interlocutory Application is allowed.
JUDGE JUDGE. Comparing Assistant