Page No.# 1/6 GAHC010121312025 2025:GAU-AS:12938 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2268/2025 JAKIR ALI S/O. MD. ISLAM ALI R/O. VILL. UKHURA P.S. HAJO DIST. KAMRUP ASSAM. VERSUS THE STATE OF ASSAM REP. BY THE PP ASSAM. ------------ Advocate for : MR. N ANAND Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE THE HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY Order (CAV) 19.09.2025 1. Heard Mr. A. K. Singh, learned counsel for the petitioner. Also heard Mr. Page No.# 2/6 K. Baishya, learned Additional Public Prosecutor for the State of Assam. 2. This is an application made under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, seeking bail by the accused/petitioner, namely, Jakir Ali, who was arrested on 20.09.2024 in connection with Special NDPS Case No. 34/2023 corresponding to Hajo Police Station Case No. 239/2023 under Section 20(b)(ii)(c)/29 of NDPS Act, pending before the Court of learned Additional Sessions Judge, Kamrup at Amingaon, Assam. 3. Mr. A. K. Singh, learned counsel arguing for the petitioner, contends that there is no material against the accused except the statement of co- accused Anar Ali, from whose possession the contraband was allegedly recovered, implicating the petitioner that he had received the contraband from the petitioner. According to him, such a confessional statement recorded under Section 67 of the NDPS Act shall remain inadmissible even at the stage of consideration of the bail. In support, the learned counsel places reliance on the determination made by the Hon’ble Apex Court in the case of State vs Pallulabid Ahamed Arimutta & Others reported in 2022 12 SCC 633, the ratio laid down in the case of Tofan Singh vs State of Tamil Nadu reported in (2021) 4 SCC 1. 4. Per contra, Mr. Baishya, learned Additional Public Prosecutor, argues that the record reveals that, beyond the statement of the co-accused, the investigating authority has also collected CDR of calls between the petitioner and prime accused Anar Ali, and both these accused were in continuous contact over telephone before the recovery. And therefore, collaborative materials are available. Therefore, the satisfaction that is required under Section 37 of the NDPS Act, 1985, is not available in the Page No.# 3/6 present case. 5. Heard the learned counsel for the parties, perused the material available on record. 6. The prosecution's case is that on 02.04.2023, S.I. Sumit Mahato of Hajo Police Station lodged an FIR before the Officer in Charge of Hajo Police Station that one Anar Ali had stored a large quantity of ganja. Thereafter, a search was conducted at the house of Anar Ali in Village No. 3, Manahkuchi, under Hajo Police Station, after the police received a tip that Anar Ali was storing a large quantity of ganja at his house. The informant also alleged that Anar Ali was involved in the illicit trafficking of the drug. Accordingly, a General Diary Entry was made vide Hajo PS GDE No. 35 dated 02.04.2025. Thereafter, a police team, led by SI Sumit Mahato, along with independent witnesses, searched Anar Ali’s home. During the search, they found five white colour polythene carry bags containing dry leaf material suspected to be ganja, which were concealed inside a paddy store (bhoral) and one Vivo mobile handset having IMEL No. (i) 865127030822675 (ii) 865127030822667, SIM Card No. 7578081763. Subsequently, all the contents seized were weighed, and it was found to bear 25 kgs. 7. During interrogation, Anar Ali revealed that he had received the ganja from the accused/petitioner, namely Jakir Ali, and that he was holding it for him. Accordingly, a case was registered as Hajo Police Station Case No. 239/2023 under Section 20(b)(ii)(c)/29 of the NDPS Act. The petitioner was implicated on the basis of the statement of the co-accused recorded under Section 161 Cr.P.C./67 NDPS Act. Page No.# 4/6 8. After a close scrutiny of the case diary, as well as the charge sheet and a cursory glance at the statements of the witnesses recorded, it is evident that the material collected against the accused petitioner consists of the statement of the co-accused, Anar Ali, that he was holding the contraband on behalf of the petitioner. Though based on such a statement, a search was conducted in the house of the accused, but nothing was recovered. And the other material is the CDR of calls between the co-accused Anar Ali and the petitioner. 9. In the aforesaid backdrop of facts and having due regards to the ratio laid down in the case of Pallulabid Ahamed Arimutta (supra), that a confessional statement recorded under Section 67 of the NDPS Act, 1985, will remain inadmissible in the trial of an offence under the NDPS Act and therefore, such statement more particularly based on the confessional statement/voluntary statement of the co-accused cannot be a ground to have a reasonable belief that the accused is guilty of the offence. 10. For the reasons discussed above, this Court is of the view that the petitioner has established a prima facie case, indicating that there is no plausible ground to believe that the petitioner is guilty of any offence under Section 29 of the NDPS Act, 1985. 11. Considering the aforesaid aspects, propositions of law, and in the given facts and circumstances of the present case, this Court is of the considered opinion that by imposing stringent conditions, the attendance of the petitioner before the learned trial Court could be secured, and he can be barred from hampering, tampering or influencing the witnesses. Page No.# 5/6 12. In view of the peculiar facts and circumstances of the case, the petitioner, namely, Jakir Ali, be released on bail on executing a bail bond of Rs. 50,000/- (Fifty Thousand) with two suitable solvent sureties of like amount to the satisfaction of the learned Additional Sessions Judge, Kamrup at Amingaon, Assam, in connection with the aforementioned case. The bail granted to the petitioner shall be subject to the following conditions:- (a) The petitioner shall not leave the territorial jurisdiction of the learned Additional Sessions Judge, Kamrup at Amingaon, Assam, without prior written permission from him; (b) The petitioner shall not hamper or tamper with the evidence of the case. (c) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or to any police officer. (d) The petitioner shall surrender his passport, if any (if not already surrendered), before the learned Additional Sessions Judge, Kamrup at Amingaon, Assam. (e) The petitioner shall furnish the present residential address with proof to the learned trial Court below and shall not change the said residence without prior permission of the learned trial Court. (f) The petitioner shall appear before the Officer-in-Charge, Hajo PS, on the 1st day of every week till completion of trial. (g) The petitioner shall appear before the learned trial Court Page No.# 6/6 below on each and every date of appearance during trial, unless dispensed with by the learned Trial Court. 12. In the aforesaid terms, this bail petition is allowed. 13. While parting with the record, it is made clear that the observations made in this bail petition are only for the grant of bail and the same shall not affect the merit of the case of the persecution and the defence. JUDGE Comparing Assistant