Page No.# 1/7 GAHC030004252025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./29/2025 Sh. Kutbul Alom Laskar Dakshin Mohanpur, Sonai, Cachar District, Assam VERSUS The State of Mizoram R/b the Commissioner and Secretary to Govt. of Mizoram, Excise and Narcotics D Aizawl Advocate for the Petitioner : Mr. Jonathan L Sailo Advocate for the Respondent : P.P./Addl.PP, Mizoram BEFORE HON’BLE MRS. JUSTICE MARLI VANKUNG ORDER 29.07.2025 Heard Mr. Jonathan L. Sailo, learned counsel for the petitioner. Also heard Ms. Vanneihsiami, learned Addl. Public Prosecutor for the State respondent. 2. This is an application filed u/s 483 BNSS r/w Section 37 of the ND&PS Act, 1985, for grant of bail to the applicant/petitioner, who was arrested on 11.06.2023 at 2:15 AM, in Crl.Tr (Ex)no.1381/2023 u/s 21(c) of the ND&PS Page No.# 2/7 Act, 1985, on the seizure of 5.810 kgs of suspected heroin, recovered from Ashok Leyland Truck bearing registration No. AS-11-EC-5636 and the driver of the vehicle the co-accused Sh. MD Nazimul Hussian Barbhuya (accused no.1)and his handyman co accused Abdul Kalam were arrested on 11.06.2023 subsequently from the statement of the co-accused the accused petitioner was also arrested on the same day. 3. Mr. Jonathan L. Sailo, learned counsel for the petitioner submits that the accused petitioner was innocent of the charge and nothing illegal was seized from the possession of the petitioner further there was no material evidence against the petitioner. The learned counsel submits that out of the 4 prosecution witnesses examined by the court, Pw-1, is the seizing officer and the other prosecution witness is the case I.O. On the cross examination of the seizing officer, the witnesses himself admitted that the accused petitioner was not riding in the vehicle from where the SA was seized and no contraband substance was seized from his possession, and he was only arrested based on the information received by them. The cross examination of the case I.O who deposed in the court as PW No.14, also revealed that he does not have any evidence against the petitioner apart from his own statement and the statement of the co-accused. The learned counsel submitted that there can be no conviction based only on the evidence of a confessional statement under section 67 of the ND&PS Act, In support of his submission, the learned counsel has relied on the judgment of the Apex Court in the case of Surinder Kumar Khanna v. Directorate of Revenue Intelligence, reported in 2018 SCC 271 (para 13 & 14) wherein, the Apex Court held that where there is only one piece of material that is the confession statement of the accused person, Page No.# 3/7 on the touchstone of law laid down by this Court, such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence, it would not be appropriate to convict the appellant solely on the statement of the co-accused and hence the appellate was acquited of his conviction. 4. The learned counsel for the petitioner further submits that the accused petitioner was illegally arrested in violation of his fundamental rights guaranteed under Article 21 & Article 22 (1) of the Constitution of India which has been incorporated in Section 47, Section 48 & Section 36 of the BNSS. The learned counsel led this court to the arrest memo wherein, the petitioner was arrested on 11.06.2023 in connection with the contraband substance which was seized from the Ashok Leyland Truck at Zemabawk East, Kananthar Petrol Pump. The learned counsel submits that Section 36 of the BNSS provides for the procedure of arrest and duties of officer making arrest. Section 36 (b) provides that in the preparation of memo arrest, it shall be attested by at least one witness, who is member of the family of the person arrested or a respectable member of the locality where the arrest is made. The learned counsel submits that in the instant case, on perusal of the arrest memo, there are no independent witnesses and the witnesses who signed on the arrest memo are members of the police force who had made the arrest. The learned counsel has placed reliance on the judgment of the Apex Court in the case of D.K Basu vs. State of West Bengal reported in (1997) 1 SCC 416and Romila Thapa & ors v.Union of India reported in 2018 10 SCC 753(para 77 & 78) wherein, Page No.# 4/7 the Apex Court observed that the requirements to be followed in all cases of arrest and the procedure laid down has to be followed to ensure the fairness and impartiality of the process by the investigating agency and the importance of an independent witness while making an arrest u/s 36 (b) of the BNSS is to be followed. The learned counsel also submitted that on the perusal of the grounds of arrest furnished to the accused petitioner it can be seen that he has put his thumb impression , which shows that he is an illiterate and therefore the grounds of arrest should have been given to him in the language known to him as mandated by the Apex court in Vihaan Kumar vs. State of Haryana & Anr 2025 SCC online SC 269. 5. The learned counsel also for the petitioner further submitted that the petitioner has been incarcerated for 2 years 1 month & 18 days, pending the trial, and till date only 4 prosecution witnesses out of 14 prosecution witnesses have been examined. The learned counsel submitted that this court on 09.05.2024 had rejected the previous bail application filed by the petitioner in Bail Appln. No. 31 of 2024, by observing that charge-sheet has already been filed and opportunity should be given to the prosecution witnesses to adduce evidence however, in spite of the fact that more than 1 year has lapsed since the order, only 4 prosecution witnesses out of 14 prosecution have been examined and therefore, it is clear that the trial of the case is not likely to be completed soon. He submitted that the petitioner being innocent of the charge should also be granted bail since the other co-accused persons in the same case have been released on bail. The learned counsel submitted that the co-accused Sh. MD Nazimul Page No.# 5/7 Hussian Barbhuya, from whom the contraband substance was seized, was also granted bail by a coordinate bench of this court on 14.07.2025 in Bail Appln. No. 25 of 2025. Bail was granted to the co-accused on the grounds that the ‘grounds of arrest’ was not provided to the accused as mandated under Article 22 (1) of the Constitution of India and on the grounds that the accused/petitioner had been behind the bar for more than 2 years from the date of his arrest wherein till date, only 4 prosecution witnesses out of 14 prosecution witnesses listed had been examined. It was observed by the coordinated bench of this Court that prolonged incarceration generally militates against the Fundamental Rights guaranteed on the Article 21 of the Constitution of India. The learned counsel thus submit that the present accused petitioner may also be granted bail on the same grounds. 6. Per contra, Ms. Vanneihsiami, learned Addl. Public Prosecutor, submitted that the Apex Court in Union of India (NCB) Vs. Khalli Uddin reported in 2022 SCC online SC 2109 at (Para 8 & 9) held that in the face of the mandate of section 37 of the ND&PS Act, the High Court could not and ought not to have to release the accused on bail on the strength of the statement of a co-accused. She also submitted that the case I.O/PW 14, in his deposition recorded before the Court has stated that the accused petitioner admitted his involvement in the seized of 5.180 kgs of heroin and that he is the actual mastermind in the case. The learned Addl. Public Prosecutor also submitted that minor lapses during search and seizure should not be a ground for granted bail to the accused. 7. The learned Addl. Public prosecutor further submitted that the case Page No.# 6/7 cited evidence stage and there are no grounds for the release of the accused petitioner on bail wherein, since he is not a permanent resident of the state, if released on bail, there is every likelihood of him absconding during the trial. 8. I have considered the submissions made by the learned counsels for both the parties and have also perused the documents on record. 9. This court has noted that only four prosecution witnesses out of fourteen cited witnesses have been examined till date, thus this court is of the view that the issue whether or not there is sufficient evidence against the accused petitioner to convict him under section 21(c) ND&PS Act can be decided by the learned trial court after the conclusion of the prosecution evidence. 10. This court also finds that the accused petitioner was arrested at 2:15 am on the issue of the none compliance of section 36(b) of the BNSS was not raised when the arresting officer of the accused petitioner, who was examined in the court as PW No.1 to enable him to respond to such submission. Likewise no question was raised regarding whether the accused petitioner was able to understand the ‘grounds of arrest’ given to him before PW1 / seizing officer, nor was the Case I.O, who had deposed before the Trial Court as PW No. 14, questioned on these points. 11. This court has however, taken note of the fact that the co accused in the case, Mr. MD Nazimul Hussian Barbhuya (accused no.1), who is the driver of the vehicle from where the S.A was seized and in his presence, was granted bail by a coordinate bench of this court on 14.07.2025 in Bail Page No.# 7/7 Appln. No. 25 of 2025, thus, applying the principles of equity and fairness, this court is constrained to grant bail to the accused with a bail bond of Rs.1,00,000/- and with one surety of the same bond amount who shall be to the satisfaction of the learned trial court. The learned trial court may also impose such conditions as found necessary to ensure that the accused petitioner does not abscond or hamper the trial of the case . 12. Bail Appln. No. 29 of 2025 thus stands allowed and disposed of. JUDGE Comparing Assistant