Page No.# 1/5 GAHC010214072025 2025:GAU-AS:15365 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3133/2025 MUKTAJUL ALI SON OF LATE MUJIBUR RAHMAN, R/O VILLAGE SARUPATHAR, SONARI BASTI, P.S. JAMUNAMUKH, DIST. HOJAI, ASSAM, PIN-783384 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : G UDDIN, P ADHIKARI,MR N JAMAL,MR A K AZAD Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA O R D E R Date : 13.11.2025. Heard Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. G. Uddin, learned counsel for the petitioner. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam appearing for the State respondent. Page No.# 2/5 This is an application under Section 483 of BNSS, 2023 praying for grant of bail to the accused petitioner, namely, Muktajul Ali who is in custody since 28.06.2025, in connection with Special NDPS Case No.33/2025, arising out of Jamunamukh P.S. Case No. 19/2024, under Sections 22(C)/29 of the NDPS Act. Scanned copy of the TCR is received and perused the same. It is submitted by Mr. Choudhury, the learned Senior Counsel that the accused/petitioner earlier appeared before this Court with an application for pre- arrest bail and vide order dated 26.11.2024, the same was rejected by this Court and subsequently, another anticipatory bail application was filed before this Court which was registered as AB No.1508/2025 but subsequently, it has to be withdrawn as during the pendency of the said application, the petitioner was arrested and hence, vide order dated 21.07.2025, the petition was disposed of on withdrawal. It is submitted by Mr. Choudhury, the learned Senior Counsel that the accused/petitioner is innocent and he is no way connected with the alleged offence. Nothing has been seized from the possession of the accused/petitioner and he got arrested in this case on 28.06.2025, about one year later of the incident. Mr. Choudhury further submitted that the accused /petitioner was implicated in this case only on the basis of the statement made by the co- accused persons who were arrested by and quite a good numbers of SAMPEX+ capsules were recovered from the possession of the co-accused. But the present accused/petitioner is no way involved in the offence and accordingly, it is submitted that in view of the ratio laid down by the Hon’ble Apex Court in the case of Tofan Singh vs. State of Tamil Nadu, reported in (2021) 4 SCC 1, wherein it has been held that the statement of the co-accused person recorded under Page No.# 3/5 Section 67 of the NDPS Act is not tenable in the eye of law and it cannot be the basis of the conviction as the same cannot be accepted in evidence. Mr. Choudhury, the learned Senior Counsel also relied upon a decision of the Hon’ble Apex Court in the case of State by (NCB) Bengaluru vs. Pallulabid Ahmad Arumutta and another, reported in (2022) 9 SCC 516, wherein also it is observed by the Hon’ble Apex Court that only on the voluntary statement made by the co- accused persons, without having any prima facie case or substantial material against the petitioner, the voluntary statement made by the co-accused persons under Section 67 of the NDPS Act cannot form the basis for overturning the impugned orders of releasing them on bail. Mr. Choudhury, the learned Senior Counsel further submitted that the accused/petitioner is behind the bar for more than four (4) months and the accused/petitioner being the permanent resident of the addressed locality, will appear before the learned Trial Court below as and when the date fixed by the learned Special Judge, Hojai. Mr. R.R. Kaushik, the learned Additional Public Prosecutor, Assam raised vehement objection and submitted that the finding prima facie case against the present accused/ petitioner, the case has been charge sheeted against him along with other co-accused persons and from the order passed by the learned Sessions Judge also, it reveals that the accused is a habitual offender and he is also involved in other such cases and thus, he is a habitual offender. In that context, Mr. Choudhury, the learned Senior Counsel for the petitioner submitted that for arresting the petitioner in connection with another case, he cannot be said to be a habitual offender. That apart, the other case Page No.# 4/5 where he was arrested, was under the small quantity and not under the commercial quantity. Mr. R.R. Kaushik, the learned Additional Public Prosecutor, Assam further submitted that the charge is yet be framed against the present accused/petitioner and the probability of absconding of the accused cannot be denied at this stage. He further submitted that the ratio laid down by the Hon’ble Apex Court in the case of Tofan Singh (Supra) is not applicable in this case as it is not a case that the accused/ petitioner was arrested only on the basis of the statement made by the other co-accused and sufficient incriminating materials are collected by the investigating officer, on the basis of which the charge sheet has been filed against the accused. Mr. Kaushik further submitted that the case is of commercial in nature and hence, the rigor of Section 37 of the NDPS Act will follow wherein the twin condition has to be satisfied that the accused is not guilty of the offence and there has to be a belief that the accused will not repeat or commit the same offence while on bail. Thus, he raised vehement objection and submitted that considering the nature and gravity of the offence, it is not at all a fit case to enlarge the accused/petitioner on bail at this stage. Hearing the submissions made by learned counsel for both sides, I have also perused the scanned copy of the Trial Court Record as well as the case diary. It is an admitted fact that there was no recovery from the possession of the accused/petitioner at the same time, about one year after the incident the accused/petitioner was arrested in connection with the case. But it is seen that Page No.# 5/5 coming to know about the registration of the case, the accused/petitioner approached in two occasions before this Court with the prayer for anticipatory bail. Thus, he was well aware about the case and it reveals from the materials available in the case diary as well as from the order passed earlier that he is the main kingpin of the case, who used to supply the contraband article to the person to sell the same in the market and the SAMPEX+ capsules which were recovered from the co-accused persons were supplied by the present accused/petitioner. Thus, it cannot be held that the accused is not guilty in the present case or nor there can be any opinion that he will not commit the same offence in future, which is the requirement of granting bail under Section 37 of the NDPS Act, in case relating to commercial quantity. Considering all the above aspects of the case, I do not find it a fit case to extend the privilege of bail to the present accused petitioner at this stage and the same stands rejected. JUDGE Comparing Assistant