Page No.# 1/6 GAHC010269612024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3854/2024 SADDAM HUSSAIN S/O HAREJ ALI, RESIDENT OF VILLAGE GALDIGHALA, PO ADABARI, PS MUKALMUA, ASSAM 781126 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. K KALITA, MR. M R CHOUDHURY,MR. B BORAH,MR. I H SAIKIA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 10.02.2025 1. Heard Mr. I. H. Saikia, learned counsel for the petitioner. Also heard Mr. R. J. Baruah, learned Additional Public Prosecutor for the State respondent. 2. This application under Section 483 of BNSS, 2023 has been filed by the petitioner, Saddam Hussain, who has been detained behind the bars since last Page No.# 2/6 12.11.2023 (for the last 15 months) in connection with NDPS Case No. 13/2024 corresponding to Nalbari Case No.561/2023 under Section 21(c)/29 of the NDPS Act, 1985 pending before the Court of learned, Special Judge, Nalbari. 3. The gist of accusation in this case is that on 11.11.2023 one Shri Taranai Das had lodged an FIR before the Officer-In-Charge of Mukalmua Police Station, inter-alia, alleging that a reliable information was received by the In- Charge of Adabari Police Post from secret sources on 11.11.2023 to the effect that large number of narcotic and psychotropic drugs have been kept in the house of one Tapan Mohanta. The informer also revealed that Tapan Mohanta, Saddam Hussain and Dipu Mohanta are involved in trafficking of narcotic drugs. 4. Accordingly, a general diary entry was made by the Officer-In-Charge of Mukalmua Police Station namely by GD Entry No. 11.11.2023 and a police team was constituted to conduct the search. 5. Accordingly, the police team took the accused Tapan Mohanta and Saddam Hussain present petitioner from the stationary shop of Tapan Mohanta and proceeded to the house of Tapan Mohanta and during search of the house premises of accused Tapan Mohanta 38,880 numbers of Spas Trancan Plus Capsules were found there. 6. Mr. I. H. Saikia, learned counsel for the petitioner has submitted that there is no incriminating material available on record against the present petitioner. He submits that the present petitioner was picked up by the police from the shop of one Tapan Mohanta and taken to the house of Tapan Mohanta along with the owner of the house. He submits that the contraband which has been seized in this case was recovered from the cow sheds of Tapan Mohanta and the petitioner is in no way involved in the offence alleged in the charge sheet. Page No.# 3/6 7. He also submits that apart from the statement of the petitioner recorded under Section 67 of the NDPS Act, 1985 which is inadmissible against him in the trial, there is no other material to implicate the present petitioner in this case. He also submits that out of the 15 listed prosecution witnesses, 5 have already been examined and none of them have implicated the present petitioner. He also submits that the petitioner has been languishing behind the bars since last 15 months and there is no hope of early culmination of the trial. 8. He submits that the materials on record suggest that the petitioner is not guilty of the offence charged with which he has been charged in this case, hence the petitioner may be allowed to go on bail. 9. On the other hand, learned Additional Public Prosecutor has opposed the grant of bail to the present petitioner on the ground that as the contraband seized in this case is of commercial quantity, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He also submits that though only 5 witnesses out of 15 listed witnesses have been examined from the remaining witnesses, there is a possibility that the remaining witnesses may implicate the present petitioner. 10. He submits that there are materials on record which shows that the contraband was recovered after the present accused along with co-accused have led the police to the place from where the contraband was recovered. 11. I have considered the submissions made by learned counsel for both the parties and have gone through the materials available on record carefully. 12. On perusal of the materials available on record, it appears that the seized contraband in this case was recovered from a Syntex water tank which was kept in the cowshed of the co-accused Tapan Mahanta. Page No.# 4/6 13. It appears that nothing was seized from the possession of the present petitioner's stuff. 14. It also appears on perusal of the materials available on record that apart from the statement of the petitioner himself which was recorded during investigation, there is no other material against him which implicates him in the offence alleged in this case. 15. The Apex Court has clarified in the case of “Tofan Singh vs. State of Tamil Nadu” reported in (2021) 4 SCC 1 that the confessional statement of an accused recorded under Sections 67 of the NDPS Act, 1985 cannot be used against the said accused. 16. The statement recorded under Section 67 of the NDPS Act, 1985 cannot be used against the accused in the trial of an offence under NDPS Act, 1985. Thus, this Court is of considered opinion that for the purpose of consideration of the instant bail application, this Court finds that there are reasonable grounds as there is no admissible evidence available on record which incriminates against the present petitioner, there are reasonable grounds to believe that petitioner is not guilty of the offence charged in this against him in this case. 17. Further, there is also no material to show that he had any criminal antecedent so as to give rise to an apprehension that after releasing him on bail he may commit any other offence. 18. There is no admissible evidence against the present petitioner on record. However, he has been languishing behind the bars for the last 15 months. This Court is of considered opinion that under the facts and circumstances of the case, he is entitled to get bail. 19. For reasons mentioned herein above, the petitioner, namely, Saddam Page No.# 5/6 Hussain is allowed to go on bail of Rs. 50,000/- (Rupees Fifty Thousand Only) with one surety of like amount subject to the satisfaction of the learned, Special Judge, Nalbari with the following conditions: i. That the petitioner shall cooperate in the trial of NDPS Case No. 13/2024, which is pending in the Court of learned, Special Judge, Nalbari; ii. That the petitioner shall appear before the Trial Court as and when so required by the Trial Court; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Trial Court in the trial pending against the present petitioner; iv. That the petitioner shall provide his contact details including photocopies of his Aadhar Card or Driving License or PAN card, and mobile number as well as other contact details before the Trial Court; v. That the petitioner shall not leave the jurisdiction of the Trial Court without prior permission of the Trial Court and when such leave is granted by the Trial Court, the petitioner shall submit his leave address and contact details during such leave before the Trial Court; and vi. That the petitioner shall not commit any similar offence while on bail. 20. It is hereby made clear that the observation made herein before while considering his bail application shall not have any bearing during the trial and Page No.# 6/6 the trial court may come to its own independent finding on the basis of the evidence adduced during the trial. 21. With the above observation, this bail application is accordingly disposed of. 22. Send back the case diary. JUDGE Comparing Assistant