Page No.# 1/7 GAHC010136892025 2025:GAU-AS:10257 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2070/2025 ABU MOHAMMED TANJIR S/O FAYZUR RAHMAN R/O HAMARMUKH, ADARKUNA PT. I, KARIMGANJ, P.S. SRIBHUMI, ASSAM, PIN-788701. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. S C BISWAS, MS. S. CHANDA,MS. J GHOSH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER 06.08.2025 1. Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor for the State. 2. The instant bail application has been filed u/s 483 of BNSS, Page No.# 2/7 2023, has been filed by the accused petitioner, namely, 1. Abu Mohammad Tanjir, who is seeking regular bail and stated to have been arrested on 11.06.2025 in connection with Karimganj P.S Case No.134/2025 under Section 22(C)/25/29 of the NDPS Act. 3. The petitioner stated to be a registered owner of a 12- wheeler TATA truck bearing registration no.AS-01-LC-6436. 4. The allegations in brief are that on 15.03.2025, upon an information, Karimganj Police checked this vehicle while it was coming from Mizoram towards Pathar Kandi, Tripura side via Puwamara side and upon checking, 80,000 suspected Yaba Tablets (psychotropic substances) were found concealed in the truck in a secret chamber and both the drivers namely, Samim Uddin Beg and Tanzir Abedin Talukdar were arrested. 5. During investigation and based on their statements, the present accused who is the owner of the said vehicle was arrested on 11.06.2025 as stated above. The case diary as called for has been received along with a bail objection in which the I.O has objected to the grant of bail on the ground of the contraband being commercial quantity and complicity of the accused, along with applicability of the rigors of Section 37 of the NDPS Act. 6. I have heard the submissions made by the learned counsel for both sides. 7. The learned counsel for the petitioner has submitted that the present accused has been prosecuted solely on the statements Page No.# 3/7 of the two co-accused who were allegedly in the vehicle at the time of alleged recovery of the contraband. 8. Relying on the decisions of the Hon’ble Supreme Court rendered in Toofan Singh Vs. State of Tamil Nadu, reported in (2021) 4 SCC 1, - the learned counsel for the petitioner submits that no convictions can be based on the statement of co-accused and therefore, in the instant case, the rigors of Section 37 of the NDPS Act would also not apply. 9. On the other hand, the learned Additional Public Prosecutor for the State has vehemently opposed the bail petition and submits that the present accused is complicit in the alleged offences and keeping in mind the nature of the offences and the quantity involved, he should not be enlarged on bail at this stage. 10. I have perused the relevant portions of the case diary. The seizure list together with the inventory documents lend support to the allegations of recovery of contraband in the nature of the psychotropic substances, if the materials are accepted on face value. The seizure witnesses have supported the seizure of the contraband from the intercepted truck where the two co-accused were supposedly the drivers. The investigation materials revealed that both the co-accused persons implicated the present accused (stated to be the registered owner of the truck) by stating that he had instructed them to transport such illegal substances and that he has been involved in such activities, since earlier. 11. The statement of the present accused is also self Page No.# 4/7 incriminating, whereby he stated that due to some financial difficulties, he started to indulge in peddling of illegal drugs from Mizoram. 12. Needless to say that the said self incriminating statement of the accused constitutes inadmissible evidence. At the same time, upon perusing the case diary, I did not notice other materials at this stage apart from the implicating statements of the co-accused about the involvement of the present accused in trafficking of illegal drugs. 13. In the case of Toofan Singh Vs. State of Tamil Nadu, reported in (2021) 4 SCC 1, the Honorable Supreme Court has settled the law that a conviction in an NDPS case cannot be based solely upon the confessional statement of a co-accused under Section 67 of the Act. As far as bail is concerned, in a case of alleged commercial quantity under the NDPS Act, a determination has to be made under Section 37 of the Act with a finding that on the basis of the investigation materials, the court is of the reasonable view that the accused is not guilty of the offence. In such a situation, if the other factors do not militate against such grant of bail, then the accused can be enlarged on bail despite the alleged quantity in question being commercial quantity. 14. Now, such a finding in a bail petition would be easier to make if the investigation stood completed and the only incriminating materials against the accused were the confession of a co-accused. Since only such a material cannot lead to conviction in terms of the Page No.# 5/7 law laid down in Toofan Singh(supra), therefore, even for the purpose of bail, the Court can arrive at a reasonable finding that the accused is not guilty thereby meeting the test of Section 37 in favour of the accused and there will be no statutory impediment in that situation to grant bail to the accused. 15. However, if the investigation is not yet completed and the investigating authorities are still collecting evidence as part of the process of investigation, then perhaps it would be somewhat premature to hold that the accused is not guilty of the alleged offences pertaining to commercial quantity despite the fact that till that stage, the only incriminating materials might be the confession of co-accused under Section 67 of the NDPS Act. Such an approach would be even more necessary in my considered view if the bail in question is an anticipatory bail rather than a regular bail for releasing the accused in custody. On the basis of such materials, if the accused is released on bail, even while the investigation remains in progress that would, in my considered view, amount in a way, to prejudging the question prima facie guilt and might constitute some prejudice to the investigating authority and the prosecution. 16. Even if the investigation till the stage the bail is taken up for adjudication, reveals incriminating materials against the accused only by way of incriminating statement of co-accused granting bail at that stage to the accused might handicap and prejudice the Page No.# 6/7 investigation, as any subsequent investigation could reveal materials other than solely incriminating statement of co-accused. 17. In any case, Section 37 imposes a statutory bar on granting bail if the Court is unable to come to a finding on the basis of materials that the accused is not guilty. If the Court arrives at such a finding in favour of the prosecution, the Court is obviously barred from granting bail. Even if the Court does not arrive at such a finding, the other restrictions on grant of bail would still apply as provided by Section 37 of the NDPS Act itself. Thus, in a situation of only statements of co-accused being available, the Court might be better placed to hold that the accused is not guilty within the meaning of Section 37 of the NDPS Act only in a situation where the investigation is completed or substantially completed. 18. Coming back to the facts of this case, the case diary definitely indicates that there has been reasonably good progress in the investigation. However, the investigation is not complete and the same is still going on. The contentions of the Investigating Officer in the bail objection filed along with the case diary also cannot be brushed aside. 19. Thus, in the overall facts and circumstances as indicated above, I come to the considered opinion that keeping in mind the serious nature of the allegations and the continuance of the investigation, it may not be prudent to place any restrictions on the investigating authority with regard to the remaining investigation. Page No.# 7/7 Consequently, the instant bail petition for bail on behalf of the accused, namely, Abu Mohammad Tanjir stands rejected. 20. Return back the case diary. 21. The bail petition stands dismissed and disposed of on the aforesaid terms. JUDGE Comparing Assistant