Page No.# 1/7 GAHC010060432025 2025:GAU-AS:4808 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./885/2025 SULEMAN UDDIN @ CHULEMAN UDDIN SON OF ABDUL MOTIN, RESIDENT OF VILLAGE SOUTH KEOTI, PSPATHARKANDI, DISTRICT SRIBHUMI, ASSAM. VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR H R CHOUDHURY, A S PRODHANI,S. TALUKDAR Advocate for the Respondent : PP, ASSAM, Page No.# 2/7 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER 22.04.2025 Heard Mr. H. R. Choudhury, learned counsel for the petitioner. Also heard Mr. D. P. Goswami, learned Additional Public Prosecutor for the State respondent. 2. This is an application under Section 483 of BNSS, praying for grant of bail to the accused/petitioner, who has been arrested in connection with Special NDPS Case No. 40/2022 arising out of Patharkandi P. S. Case No. 69/2022, under Sections 21(C)/25/29 of NDPS, which is pending before the Court of learned Sessions Judge, Sribhumi. 3. The scanned copy of the Trial Court Record along with the Case Diary has already been received and I have perused the same. 4. It is submitted by Mr. Choudhury, learned counsel for the petitioner, that the accused/petitioner is innocent and not at all involved in the alleged offence. The petitioner is not a named accused in the FIR, and from the statements made in the charge sheet, it appears that his name has been mentioned solely on the basis of suspicion, showing him as an absconder. Also, during the investigation, the police never inquired about the present petitioner, and thus, he was unaware of the alleged offence. Subsequently, on the strength of the NBWA issued by the learned Trial Court, the petitioner was arrested on 12.12.2023 and has been in custody since then, solely on the basis of the statement of the co-accused recorded under Section 67 of the NDPS Act. It is, however, a settled position of law that the statement of a co-accused or a voluntary statement recorded under Section 67 of the NDPS Act is not admissible during trial and cannot form the basis of a conviction, as laid down by the Hon’ble Page No.# 3/7 Apex Court in Tofan Singh vs. State of Tamil Nadu [(2021) 4 SCC 1]. In that case, it was held that the statement of a co-accused recorded under Section 67 of the NDPS Act is not tenable in the eyes of law and cannot be the basis of conviction. 5. He further submitted that, to date, only one prosecution witness has been examined and, surprisingly, charges have not yet been framed against the present petitioner. However, the petitioner has been in custody for the last 1 year, 5 months, and 10 days. Therefore, he prays for the petitioner to be enlarged on bail, considering the prolonged period of incarceration. Nevertheless, the petitioner is ready and willing to contest the case by appearing before the learned Trial Court on each and every date fixed by the said Court. 6. In support of his submission, he relies on the decision rendered by the Hon’ble Supreme Court in Dhirendra Kumar Choudhury vs. The State of Assam [Criminal Appeal No. 3379/2024], wherein, the Hon’ble Court considered the ground of prolonged incarceration and granted bail in view of the petitioner’s detention for a period of 17 months. Accordingly, he submitted that the ground of long incarceration may be considered in the present case as well, particularly since the prosecution has examined only one witness till date, and there appears to be no likelihood of the trial concluding within a short period. 7. Mr. Goswami, learned Additional Public Prosecutor, submitted that during the course of investigation, the petitioner did not cooperate with the I.O and till date one prosecution witness has already been examined, and the delay in the proceedings occurred solely due to the issuance of a NBWA against the accused/absconder by the learned Trial Court. He accordingly submitted that the present case involves a commercial quantity of contraband, and therefore, the length of detention should not be the sole ground for granting bail to the accused/petitioner. He further stated that sufficient incriminating materials were collected by the IO during the investigation, based on which the charge sheet has been filed against the petitioner, showing him as Page No.# 4/7 an absconder. Thus, he vehemently raised objection to the prayer for bail and submitted that this is not a fit case for enlarging the accused/petitioner on bail at this stage. 8. Having heard the submissions made by the learned counsels for both sides, I have also perused the scanned copy of the case record. It is seen that the accused/petitioner was arrested on 12.12.2023 on the strength of the NBWA issued against him, as he was shown as an absconder in the charge sheet. It is also a matter of record that one prosecution witness has already been examined, even though formal charges have not yet been framed against the present petitioner. It appears that the accused/petitioner, along with two co-accused persons, was shown as an absconder in the charge sheet. The two co-accused were arrested during the course of investigation, and charges were framed against them by the learned Special Judge on 28.09.2022, without any formal order being passed for splitting the case record. Subsequently, another Presiding Officer issued NBWA against the absconding accused person, with the observation that charges had not yet been framed, despite the fact that one prosecution witness had already been examined. On the strength of the said NBWA, the present petitioner was arrested in connection with this case. Thus, it is evident that formal charges have not yet been framed against the present accused/petitioner, even though one prosecution witness has already been examined in his absence. 9. Furthermore, it is seen that the case involves a commercial quantity, and therefore, the rigor of Section 37 will apply. 10. For ready reference, Section 37 NDPS Act is extracted hereinbelow: “37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 Page No.# 5/7 (b) No person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.” 11. Here in the instant case, it is seen that there is no reason to believe that the accused/petitioner is innocent and he will not repeat the same kind of offence, if enlarged on bail. 12. Further the Supreme Court in the case of Kalayan Chandra Satkar Vs. Rajesh Ranjan Alias Pappu Yadav & Anr. [(2005) 2 SCC 42] has expressed the view that the accused cannot be granted with bail solely on the ground of period of incarceration undergone by the accused. It was further held that the sole ground of delay in conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of prima facie case, gravity of the offence and the allegation of tampering with the witnesses by threat and inducement when on bail. 13. In the case of Rajesh Ranjan [(2004) 7 SCC 528], the Supreme Court has held that mere fact that the accused has undergone certain period of incarceration by itself would not entitle the accused to be enlarged on bail nor the fact that the trial is not likely to be concluded in the near future, either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail. It is also held that while considering the bail application, the Court must consider the nature of acquisition, the severity of the punishment in case of conviction, the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant and prima facie satisfaction of the court in Page No.# 6/7 support of the charge. 14. Further, in the case of Pramod Kumar Saxena vs. Union of India & Anr., the Supreme Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. In the case of Prahlad Singh Bhati Vs. NCT, Delhi reported in (2001) 4 SCC 280, the Supreme Court has culled out the principles, which the courts has to consider at the time of granting or refusing bail as under:- “The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 15. In view of the discussions made above and also considering the entire facts and circumstances of the case, nature and gravity of the offence and further considering the view expressed by the Apex Court in the case laws referred to hereinabove, this Court is of the opinion that there is a prima facie case against the accused/petitioner and thus, at this stage, I am of the view that it is not a fit case to enlarge the accused/petitioner on bail only considering the period of incarceration and hence, the Page No.# 7/7 same stands dismissed. 16. Accordingly, it is observed that some irregularity was committed by the learned Trial Court while framing the charge or during the recording of one P.W. The learned Special Judge is hereby directed to regularize the proceedings after framing the charge against the absconding accused persons, and further witnesses may be recorded. 17. The bail application stands disposed of in terms above. JUDGE Comparing Assistant