Page No.# 1/5 GAHC010027112026 2026:GAU-AS:12150 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/317/2026 MOSLEM UDDIN AND ANR SON OF AB DUL GONI SK. R/O VILL- DHENARKHUTI, P.S. SOUTH SALMARA DIST. SOUTH SALMARA- MANKACHAR. 2: ROBIAL HOQUE S/O SONAB ALI R/O VILL- DHENARKHUTI P.S. SOUTH SALMARA DIST. SOUTH SALMARA- MANKACHAR VERSUS THE STATE OF ASSAM REP BY THE LEARNED PP, ASSAM Advocate for the Petitioner : MR SARFRAZ NAWAZ, MR. SURAJIT DAS,A MISHRA,MR. RASHIDUL ISLAM Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 25-08-2026 Heard Mr. S Das, the learned counsel for the petitioners. Also heard Mr. K.K. Das, the learned Additional Public Prosecutor appearing on behalf of State Page No.# 2/5 respondent. 2. This is an application u/s 482 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 for granting pre-arrest bail to the accused/petitioners namely, [1] Moslem Uddin and [2] Robial Hoque in connection with Special (N) Case No. 49/2025 u/s 22(c)/29 of NDPS Act. 3. Scanned TCR has already been. Perused the same. 4. It is submitted by Mr. Das that the present accused/petitioners are innocent and they are no way involved in the alleged offence. Nothing has been recovered from the possession of the present petitioners. However, there was allegation of some recovery from the other co accused/persons who were arrested at the time of lodging the FIR. The name of the present accused/petitioners came into picture only on the statement made by the co- accused. But, in spite of such statement of the co-accused, the I/O could not recover any contraband from the possession of the accused/persons. He further submitted that it is a settled position of law that the conviction cannot be based on the statement made by the co-accused. In that context also Mr. Das relied on the decision of Supreme Court reported in (2022) 12 SCC 633 and 2025 SCC OnLine SC 1157 wherein the Supreme Court has observed that confession made u/s 67 of the NDPS Act is inadmissible in the trial and the statement recorded u/s 67 of the NDPS Act is also not admissible in trial where in para 12 of the said judgment relying on the decision of Tofan Singh v. State of T.N. it has been held as under:- “12. It has been held in clear terms in Tofan Singh v. State of T.N. that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the Page No.# 3/5 arrests made by the petitioner NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders 1, 2, 3, 4, 5, 6 releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16-9-20191, 14-1-20202, 16-1-20203, 19-12-20194 and 20-1-20206 passed in SLP (Crl.) No. arising out of Diary No. 22702 of 2020, SLP (Crl.) No. 1454 of 2021, SLP (Crl.) No. 1465 of 2021, SLPs (Crl.) Nos. 1773-74 of 2021 and SLP (Crl.) No. 2080 of 2021 respectively. The impugned orders 1, 2, 3, 4, 5, 6 are, accordingly, upheld and the special leave petitions filed by the petitioner NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.” 5. Accordingly, Mr. Das submitted that there is no incriminating material against the present accused/petitioners. However, they are ready and willing to appear before the learned Civil Judge and to face the trial, if they are granted with the privilege of pre-arrest bail. 6. Mr. Das, the learned Additional Public Prosecutor raised vehement objection and submitted that during the investigation and at the time of lodging the FIR itself it is seen that the name of the present accused/petitioners were uttered by the co-accused/persons and also accompanied them at the relevant period of time. However, the other co-accused/persons caught by the police persons and the present petitioners could not be apprehended at the time of arrest of the other co-accused/persons. That apart, there are sufficient incriminating materials collected by the I/O during investigation. 7. Mr. Das further submitted that it is a case of commercial quantity and hence the rigour of Section 37 will follow and there is no material to hold that the present accused/petitioners are innocent or they will not commit the same Page No.# 4/5 offence if they are released on bail. Mr. Das accordingly raised objection and submitted that it is not at all case to grant bail to the present petitioners at this stage. 8. After hearing the entire submissions made by learned counsel for both sides and I have also perused the case record and scanned TCR of the learned Special Judge. It is a fact that no recovery was made from the present accused/petitioners and the name of the present accused/petitioners are also named in the FIR on the basis of the arrested accused Abu Bakkar Siddique. However, in the same time it also cannot be denied at the relevant point of time the arrested accused has uttered the name of three other persons who were also accompanied the arrested accused/person and subsequently another person out of those three persons were also arrested by police during investigation and it is seen that there are sufficient incriminating materials collected by the I/O against the present petitioners who were also stated to be the accomplice and were carrying the contraband at the time of naka checking. It is a settled position of law that conviction cannot be based on the basis of statement of a co-accused person and the statement recorded u/s 67 of the NDPS Act it is also inadmissible at the time of trial. But, during the investigation the police officer is to depend on the statement of the co-accused, on the basis of which the investigation can be carried out, but it may not be admissible at the time of trial. 9. But, here in the instant case it is seen that it is not a case that the apprehended/arrested accused only uttered name of some other accused/persons, who were also subsequently arrested but other incriminating materials were so far collected by the I/O during investigation against the Page No.# 5/5 present accused/petitioners. At the time of apprehending one of the co-accused, the other co-accused/persons had fled away from the place of incident or from the place of naka checking. But, during the instant enquiry made by the police the arrested accused had uttered the name of the present accused/petitioners along with others and on the basis of which the investigation was done/completed by the I/O. So, considering all these aspects of the case, it cannot be held that the present accused/petitioners are innocent or they will not commit the same kind of offence, if released on bail, which is the requirement of Section 37 of the NDPS Act, while dealing with the case of commercial quantity. So considering all these aspects of the case, this Court is of the opinion that anticipatory bail for the present accused/petitioners cannot be extended at this time. 10. However, they are directed to surrender before the learned Special Judge within 15 (fifteen) days from the date of order and till fifteen days as an interim no coercive action will be taken against them. In view of above, this Anticipatory Bail application stands disposed of. TCR be returned. JUDGE Comparing Assistant