Gauhati High Court
Jahed Ali vs The State Of Assam on 20 July, 2026
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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,
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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
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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?
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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
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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
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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.
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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 :
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(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
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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 :
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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
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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
