Page No.# 1/5 GAHC010015992025 2025:GAU-AS:1649 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./230/2025 SAHINUR ISLAM S/O LATE SOKWAT ALI R/O BELTOLA (FOREST COLONY) WARD NO. 18, GOALPARA TOWN, P.S. GOALPARA, DIST. GOALPARA, ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MS. R CHOUDHURY, MS. B. HAZARIKA,MD. MEMON AHMED Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 17.02.2025 1. Heard Ms. R. Choudhury, the learned counsel for the petitioner. Also heard Mr. B. Sarma, the learned Additional Public Prosecutor, Assam. Page No.# 2/5 2. This application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has been filed by the petitioner, namely, Sahinur Islam, who has been detained behind the bars since 26.09.2024, in connection with Goalpara P.S. Case No. 129/2024, under Section 22(c)/29 of NDPS Act, 1985. 3. The gist of accusation in this case is that on 24.09.2024, one Sri Gitartha Kalita, SI of Goalpara Police Station had lodged an FIR before the Officer-In-Charge of Goalpara Police Station, inter alia, alleging that on that day an information was received through secret sources, regarding trafficking of suspected narcotics drugs and psychotropic substance in Goalpara town. On receipt of the information, a police team was constituted and it proceeded towards Hedaitpur, Goalpara. 4. It is also stated in the FIR that at Hedaitpur, two persons, namely, Muktar Hussain and Sahinur Islam (present petitioner) were found and apprehended. It is also stated in the FIR that Muktar Hussain was carrying a green plastic bag in his hand and on search of the said plastic bag, 18 strips of Sampex Plus capsule containing 432 capsules wrapped inside a white polythene bag was found therefrom. 5. Ms. R. Choudhury, the learned counsel for the petitioner has submitted that the petitioner is in no way involved in the offence alleged in the FIR. She submits that nothing was recovered from the possession of the present petitioner. She also submits that bare perusal of the FIR would show that the seized contraband was recovered from the possession of the co-accused, namely, Muktar Hussain, who happens to be the relative of the present petitioner. 6. The learned counsel for the petitioner also submits that the present Page No.# 3/5 petitioner is an employee in Mahindra & Mahindra Finance Service Ltd. and he was only found along with the co-accused and the contraband seized in this case were recovered from the possession of the co-accused. She submits that without there being any material against the present petitioner to connect him with the alleged offence, he is languishing behind the bars since 26.09.2024 and therefore, he may be allowed to go on bail. 7. In support of her submissions, the learned counsel for the petitioner has cited a ruling of the Apex Court in the case of “Mohd Muslim @ Hussain Vs. State (NCT of Delhi)” reported in “2023 AIR SC 1648”. 8. On the other hand, Mr. B. Sarma, the learned Additional Public Prosecutor, has vehemently opposed the grant of bail to the present petitioner on the ground that the quantity of contraband seized in this case is of commercial quantity and therefore, the embargo of Section 37 of the NDPS Act, 1985 is applicable to this case. He submits that there are clear incriminating materials against the present petitioner in the Case Diary, which do not justify the grant of bail to the present petitioner, in view of the embargo of Section 37 of the NDPS Act, 1985. 9. I have considered the submissions made by the learned counsel for both the sides and perused the materials available on record, including the Case Diary of the Goalpara P.S. Case No. 129/2024. 10. On perusal of the Case Diary, it appears that the contraband seized in this case was recovered from the possession of the co-accused Muktar Hussain. Nothing was recovered from the possession of the present petitioner. It also appears that apart from the statement of the co-accused, Muktar Hussain, there is no other material to link the present petitioner, with the contraband seized in this case. Only for the reason that the present petitioner was found, along with Page No.# 4/5 the co-accused from whose possession the contraband was seized may not be sufficient to detain the present petitioner in connection with this case, in absence of other admissible materials against him. More so, in view of the decision of the Apex Court in the case of “Tofan Singh Vs. State of Tamil Nadu” reported in “(2021)4 SCC 1” that the statement of accused recorded under Section 67 of the NDPS Act, 1985 is not admissible in a case relating to offence under NDPS Act. Further, there is also no admissible material indicating any criminal antecedent of the present petitioner. 11. In view of the above discussion, this Court is of the considered opinion for the limited purpose of consideration of the instant bail application, there are reasonable grounds for believing that the present petitioner is not guilty of offence involved in this case and there is nothing which would indicate that he would commit any offence while on bail, as he has no criminal antecedent. 12. This Court is, therefore, of the considered opinion that the embargo of Section 37 of the NDPS Act, 1985 is not applicable to the present petitioner under the facts and circumstances of this case. 13. In view of the above, the petitioner, namely, Sahinur Islam is hereby allowed to go on bail of Rs. 50,000/- with one surety of like amount subject to the satisfaction of learned Special Judge, Goalpara with following conditions: - i. That the petitioner shall cooperate in the investigation of Goalpara P.S. Case No. 129/2024; ii. That the petitioner shall appear before the Investigating Officer as and when so required for the sake of fair investigation; iii. That the petitioner shall not directly or indirectly make any inducement, threat, or promise to any person who Page No.# 5/5 may be acquainted with the facts of the case, so as to dissuade such person from disclosing such facts before the Investigating Officer; iv. That the petitioner shall provide his contact details, including photocopies of his Aadhar Card or Driving License or PAN card as well as, mobile number, and other contact details before the learned Special Judge, Goalpara; v. That the petitioners shall not leave the jurisdiction of the Court of learned Special Judge, Goalpara without prior permission of the said Court and when such leave is granted by the said Court, the petitioner shall submit his leave address and contact details during such leave before the said Court; and vi. That the petitioner shall not commit any offence while on bail. 14. With the above observation, this bail application is accordingly, allowed. 15. Send back the Case Diary. JUDGE Comparing Assistant