Page No.# 1/6 GAHC010139622025 2025:GAU-AS:17377 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2075/2025 ASAD UDDIN ALIAS ASAR UDDIN ALIAS SOFI SON OF LATE ABDUL HAMID R/O VILL- DOLURBOND, P.S. RAMKRISHNA NAGAR, DIST. SRIBHUMI, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M AHMED, MD I H LASKAR Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 16-12-2025 Heard Mr. M. Ahmed, the learned counsel for the petitioner and also heard Mr. B. Sharma, the learned Additional Public Prosecutor appearing on behalf of the State respondent. Page No.# 2/6 2. This is an application under Section 483 of the BNSS, 2023 with prayer for bail as he is behind bars since 20.02.2025 in connection with Ratabari P.S. Case No. 01/2024 u/s 22(c)/25/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 3. Scanned copy of TCR received. Perused the same. 4. It is submitted by Mr. Ahmed that the accused was arrested in connection with this case on 20.02.2025 on the strength of NBWA issued against him and till date he is in custody for 300 days. Out of 5 nos. of accused/persons, 4 have already granted with bail and the present petitioner was also shown as an absconder in the charge-sheet. However, nothing has been recovered from the possession of the accused/petitioner and he is charge-sheeted only on the basis of the statement made by the co-accused/persons. Further, from the reading of the charge-sheet also it is seen that there is no specific mention about the role played by the present accused/petitioner to file charge-sheet against him. Charge-sheet was filed on 31.03.2025 and accordingly the cognizance was taken on 05.04.2025. But, till date charge is yet to be framed. Reading the charge-sheet also Mr. Ahmed submitted that there is no specific mention about the role played by the present accused/petitioner in the charge-sheet. 5. In that context he also relied on the decision of Hon’ble Supreme Court reported in 2024 Live Law (SC) 337 [Sharif Ahmed & Another v. State of Uttar Pradesh & Another] and emphasized on para 31 of the judgment wherein it has been observed that it is the duty of the Investigating Officer to complete the entries of the columns in the charge-sheet so that the court can clearly understand which crime is committed by the accused and what is the material evidence available against the accused/persons. Apart from that, it also observed that the role played by the accused in the crime should be separately Page No.# 3/6 and clearly mentioned in the charge-sheet for each of the accused/persons. 6. Mr. Ahmed also emphasized on the point that there is no recovery from the possession of the present accused/petitioner and his name has been entangled only on the basis of the statement made by the co-accused/persons which is not admissible at the time of trial. 7. To substantiate his plea also relied on two decisions of Hon’ble Apex Court reported in 2021 0 Supreme (SC) 811[Bharat Chaudhary v. Union of India] and specifically relied on para 11 of the said judgment which reads as under:- “11. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15 th July, 2021. This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh (supra). The impugned order qua A-4 is, accordingly, quashed and set aside and the order dated 2nd November, 2020 passed by the learned Special Judge, EC & NDPS Cases, is restored. As for Raja Chandrasekharan [A-1], since the charge sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial Court.” 8. In the same context he also relied on another decision of the Supreme Court reported by 2022 0 Supreme(SC) 56 [State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta & Anr.] and emphasized on para 9 of the said judgment which reads as under:- “9. Having gone through the records alongwith the tabulated statement of the respondents submitted on behalf of the petitioner-NCB and on carefully perusing the impugned orders 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 has not been denied by the prosecution that except for the respondent in SLP (Crl.) No. 1569/2021, none of the other respondents were found to be in possession of commercial quantities of psychotropic substances, as contemplated under the NDPS Act.” 9. Mr. Ahmed further submitted that the Coordinate Bench of this Court also Page No.# 4/6 granted bail to the petitioner considering the observation of Hon’ble Apex Court passed in case of Tofan Singh v. State of Tamil Nadu, reported in (2021) 4 SCC 1 and also considered three other judgments of the Hon’ble Apex Court and accordingly held that it is a settled law that the confessional statement recorded u/s 67 of the NDPS Act will remain inadmissible during the trial of the offence under the NDPS Act. 10. Mr. Ahmed further submitted that the accused has not committed any such offence as alleged in the FIR. But, only on the basis of the statement made by the co-accused he has been charge-sheeted in this case. However, he is ready and willing to appear before the learned Special Judge on each and every date to be fixed by the Court. Further, accused being the permanent resident of his addressed locality, there is no chance of absconding. 11. Mr. Sharma, the learned Additional Public Prosecutor submitted in this regard that the case has already been charge-sheeted but, charge is yet to be framed against the accused-persons. More so, from the FIR itself it is seen that the present petitioner is also an FIR named accused but, he did not cooperate the I/O during the investigation and for which he had to be shown as an absconder in the charge-sheet. From the available materials in the case records as well as in the charge-sheet and FIR it is seen that the wife of the present petitioner is also involved in the alleged offence and the present petitioner is the main kingpin of the entire crime who used to purchase the contraband from the State of Mizoram and then he used to distribute the said contraband to the other co accused/persons for selling or distributing in other places. Further his wife is also involved in the alleged offence who also played a vital role in the crime and the offence is an organized crime wherein all the FIR named accused/persons are involved in selling/distributing the contraband. Mr. Sharma Page No.# 5/6 accordingly submitted that the relevancy of the statement of the co-accused will come at the time of trial but, prima facie the present petitioner seems to be the main kingpin of the entire crime. Accordingly, he raised vehement objection and submitted that it is not at all a fit case to consider the bail application of the present petitioner at this stage. 12. Hearing the submissions made by learned counsel for both sides, I have also perused the case records, charge-sheet and other relevant annexures along with the petition. It is an admitted fact that there is no recovery of contraband from the possession of the accused but, from the plain reading of the FIR and the materials available in the Case Diary it is seen that the present petitioner is the kingpin of the entire crime who used to purchase the contraband from the State of Mizoram and thereafter he distributed the co-accused/persons for selling it to other places. His wife is also involved in the alleged offence and she is also an FIR named accused. It is a fact that during the investigation of this case the co-accused/persons made a statement stating that the present accused/petitioner is the person who used to bring the contraband from the State of Mizoram but, subsequently at the time of investigation also it has come out that the present petitioner is very much involved in the alleged offence on the basis of which the investigation is done and finding prima facie case against the present petitioner the case was charge sheeted against him. Thus, it is not a case that only on the basis of the statement of the co-accused, the case is charge-sheeted against the present accused/petitioner. Rather it reveals that he is one of the persons who is involved in the entire crime and is fully associated with the alleged offence though there was no recovery from the conscious possession of the accused/petitioner. It is an admitted fact that a person cannot be convicted on the basis of statement made by the co-accused u/s 67 NDPS Page No.# 6/6 Act. But, during the investigation, the statement of the co-accused may be the basis of investigation though it may not be admitted at the time of trial. 13. Considering the entire facts and circumstances of this case, the gravity of the offence and the role played by the present accused/petitioner as reveals from the Case Dairy, I do not find it a fit case to extend the privilege of bail to the present accused/petitioner at this stage and accordingly the same stands rejected. JUDGE Comparing Assistant