Page No.# 1/5 GAHC010230682024 2025:GAU-AS:534 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3382/2024 SAHED UDDIN S/O LATE ABDUL KARIM, R/O VILL- CHANDI NAGAR PART-II, P.O.- HARINAGAR, P.S.-KATIGORAH, DIST- CACHAR (ASSAM), PIN-788805 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR. U N CHATTRY, MR. O LASKAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 20.01.2025 1. Heard Mr. O. Laskar, learned counsel for the petitioner Sahed Uddin. 2. The petitioner has filed this application under Section 483 of the BNSS, 2023 with prayer for bail as they are behind bars since 10.08.2024 in connection with Special NDPS Case No. 79/2024 corresponding to GR Case NO. 1431/2024 Page No.# 2/5 arising out of Badarpur Police Station Case No. 195/2024 under Sections 22©/29 of the NDPS Act. 3. Heard Mr. P. S. Laskar, learned Additional Public Prosecutor, Assam for the respondent State. 4. It is submitted on behalf of the petitioner that there are no materials against him and he was not found in conscious position of the Yaba tablets weighing 1939 grams. Even there is no clue of CDR records linking to the petitioner. The petitioner's right to personal liberty has been infringed as he has been behind bars for 151 days without trial. 5. Learned Additional Public Prosecutor has raised serious objection stating that charges are yet to be framed and it cannot be ruled out that the petitioner is complicit. It is not true that the petitioner is not complicit. Considering the gravity of the offence, which is clearly reflected in the weight of the Yaba tablets seized in connection with this case, the petitioner is not entitled to bail. 6. I have considered the submissions at the Bar with circumspection. 7. Learned counsel for the petitioner has relied on the decision of the Hon'ble Supreme Court in State & Ors Vs. Pallulabid Ahmad Arimutta and Ors reported in (2022) 12 SCC 633, wherein it has been held and observed that: “11. Having gone through the records along with the tabulated statement of the respondents submitted on behalf of the petitioner NCB and on carefully perusing the impugned orders1. 2. 3. 4, 5, 6 passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations levelled against them of indulging in drug trafficking. It Page No.# 3/5 has not been denied by the prosecution that except for the respondent in SLP (CrL) No. 1569 of 2021. none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act. 12. It has been held in clear terms in Tofan Singh v. State of T.N.7, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders1. 2. 3. 4. 5. 6 releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16-9-20191, 14-1-20202, 16-1-2020), 19-12-20194 and 20-1-20206 passed in SLP (Crl.) No. arising out of Diary No. 22702 of 2020, SLP (Crl.) No. 1454 of 2021, SLP (Crl.) No. 1465 of 2021, SLPs (Crl.) Nos. 1773-74 of 2021 and SLP (Crl.) No. 2080 of 2021 respectively. The impugned orders. 2. 3. 4. 5. 6 are, accordingly, upheld and the special leave petitions filed by the petitioner NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.” The facts and circumstances of Pallulabid's case (Supra) is not similar to this case. The respondents were granted bail by the High Court of judicature at Karnataka and against this bail order, the appellants moved the Hon'ble Supreme Court for cancellation of bail and thus prayer for cancellation of bail cannot be considered on the same footing. 8. Learned counsel for the petitioner has also relied on the decision of this Court in the case of Anil Malakar Vs The State of Assam in B.A. No. 3887/2023, wherein vide order dated 01.12.2023, it has been observed that: “12. The prosecution case is that on 13.11.2022 at about 5.15 am, 29.030 kg of Ganja were recovered from the Agartala Deodhar Express but no accused/ Page No.# 4/5 suspect was found at the place of occurrence. The petitioner was implicated on the basis of statement of two witnesses recorded under Section 161 Cr.P.C. and the petitioner was arrested after six months of the date of FIR and the alleged contraband was found in a train. 13. The charge-sheet was filed on 31.05.2023, charge under Section 20(C) of the NDPS Act was framed by the learned trial Court on 13.09.2023. 14. That being the position and in view of 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 on the basis of 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. 15. 15. For the reasons, discussed hereinabove, this Court is of the view that the petitioner has been able to make out a prima facie case that there is no plausible ground to believe that petitioner is guilty of any offence under Section 29 of the NDPS Act, 1985. 9. Reverting back to this case, it is held that gravity of the offence of is not at par with the present case. Anil Malakar (Supra) 10. In this instant case, the FIR reveals that a secret information was received by the Investigating Agency, and during patrolling at Kandigram area, two persons were spotted but one managed to escape. The apprehended person was identified as Minhaj Uddin Borbhuiya and the other person who managed to escape is the petitioner. Then, 1939 grams of Yaba tablets were recovered from the possession of the co-accused, Minhaj Uddin Borbhuiya. 11. Learned Additional Public Prosecutor has submitted that there are incriminating materials in the Case Diary against the present petitioner and this Page No.# 5/5 is the reason why charge-sheet was laid against him. 12. I have scrutinized the entire case record and the scanned copies of the Case Diary. 13. The submission of the learned counsel for the petitioner that the petitioner has been arrested only on the statement of the co-accused and he is entitled to bail cannot be accepted at this juncture. It is true that there is procrastination of trial, but at the same time, it cannot be held that the petitioner's personal liberty has been infringed due to procrastination of trial. The embargo under Section 37 of the NDPS Act restricts bail. Charges are yet to be framed. 14. The petitioner is at liberty to apply for bail and raise this same issue at the point of consideration of charge. At this juncture, I am constrained to reject the bail petition and thus petition stands rejected at this stage. 15. The petitioner is at liberty to apply for bail, if he is further incarcerated due to procrastination of trial by the prosecution or by the Court. 16. The learned Trial Court is directed to expedite the trial for speedy disposal of the case. JUDGE Comparing Assistant