Page No.# 1/6 GAHC010161672026 2026:GAU-AS:13164 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2200/2026 MUKTAJUL ALI S/O- LATE MUJIBUR RAHMAN RESIDENT OF VILL- SARUPATHAR, SONARI BASTI, PS- JAMUNAMUKH, DISTHOJAI, ASSAM, PIN-783384. VERSUS THE STATE OF ASSAM REPRESENTED BY PUBLIC PROSECUTOR, ASSAM. Advocate for the Petitioner : G UDDIN, MR A K AZAD,P ADHIKARI Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA ORDER 09-09-2026 Heard Mr. M. Dutta, learned Senior Counsel assisted by Mr. G. Uddin, learned counsel for the petitioner and Mr. K. K. Das, learned Additional Public Prosecutor, Assam. 2. This is an application filed under Section 483 BNSS, 2023 praying for grant of bail to the accused/petitioner, namely, Muktajul Ali, who was arrested in connection with Special NDPS Case No. 33/2025 arising out of Jamunamukh P.S. Case No. Page No.# 2/6 19/2024 under Section 22(C)/29 of the NDPS Act. 3. Scanned copy of the TCR has been received and perused the same. 4. It is submitted by Mr. Dutta, learned Senior Counsel that the petitioner is in custody since last 438 days as he got arrested in connection with this case on 28.06.2025. He further submitted that nothing has been seized from the conscious possession of the petitioner and he got arrested in connection with this case only on the basis of confessional statement or the statement made by the co-accused under Section 180 BNSS. 5. He submitted that as per the prosecution case, two co-accused persons got arrested, namely, Saddam and Jakir along with the contraband and in presence of witnesses and police officials, those contraband were seized from their possession. But during the interrogation only, they have reveals that those contrabands were supplied by the present petitioner and on the basis of which only the investigation was conducted and accused got arrested and accordingly charge sheeted was submitted by the I.O. 6. He further submitted that it is a settled law wherein conviction cannot be based on the confessional statement made by the co-accused and in that regard, he relied on the decision of the Apex Court in the case of Toofan Singh Vs. State of Tamil Nadu reported in (2021) 4 SCC 1. Mr. Dutta, learned Senior Counsel relied on another decision of the Apex Court in the case of State by (NCB) Bengaluru Vs. Pallulabid Ahmed Arimuta and anr. reported in (2022) Supreme (SC) 56 and emphasized on para 10 of the judgment, wherein also considering the judgment of the Toofan Singh (supra), it was held that confession statement recorded under Section 67 of the NDPS Act will remain inadmissible in trial of an offence under the NDPS Act. 7. Mr. Dutta further submitted that from the charge sheet also it reveal that apart from those confessional statement of the co-accused, no other materials were collected by the I.O. during investigation against the present petitioner, showing his Page No.# 3/6 involvement in the alleged offence. 8. Mr. Dutta, further submitted that the earlier bail application was earlier rejected by this Court on 13.11.2025 and after rejection of the said bail application also there is sufficient progress in the trial and 5 witnesses have already been examined out of 9 listed witnesses. At present, only some I.Os and the forensic experts are to be examined by the prosecution. Thus, the question of hampering or tampering with the other independent witnesses also does not arise at this stage, if the petitioner is released on bail. 9. Mr. Dutta further submitted that three of the seizure witnesses also declared hostile witnesses and from their evidence, it is seen that they saw the accused persons only inside the police vehicle and did not see any seizure from the possession of the other co-accused persons. 10. Thus, considering the evidence of the five witnesses who were examined, the chance of conviction is very remote and bleak even if the other PWs were recorded by the prosecution. 11. Mr. Dutta further submitted that the accused is a permanent resident of his addressed locality and will appear before the learned Special Judge, as and when the date is fixed for hearing. Further he submitted that two of the co-accused from whom the contraband was alleged to have been recovered are already granted bail and they are regularly appearing and contesting the case. 12. Mr. Dutta accordingly submitted that the present petition may be considered and bail may be granted to the present petitioner and he is ready and willing to produce sufficient surety to the satisfaction of the learned Special Judge. 13. Mr. Das, learned APP raised vehement objection and submitted that it is a case of commercial quantity wherein rigor of Section 37 will follow and here in the instant case from the forwarding it is seen that the accused petitioner had previous criminal antecedents and he is not only involved in a theft case and in another case, he was Page No.# 4/6 charge sheeted under the NDPS Act. Thus, it cannot also be held that the accused is innocent or will not commit the same offence if he is released on bail which is the requirement to consider a bail application under Section 37 of the NDPS Act for commercial quantity. 14. Mr. Das further submitted that admittedly no contraband was seized from the conscious possession of the petitioner and the evidence of the witnesses may not be so much related with the present petitioner. The case already sufficiently progressed and probability of completion of trial within a reasonable time also can be expected and hence, he raised vehement objection and submitted that it is not at all a fit case to grant the petitioner the privilege of bail at this stage. 15. Heard the submissions made by the learned counsel for the parties and also perused the scanned copy of the TCR. 16. It is an admitted fact that the contraband was not seized from the direct possession of the petitioner and it is recovered from the co-accused persons, who were intercepted by police and accordingly the contraband was seized. In the earlier rejection order passed by this Court dated 13.11.2025, the merit of the case has already been discussed by this Court in detail. 17. The basic contention of the petitioner is that he got arrested in connection with this case only on the basis of the statement made by the co-accused persons which is not admissible in the trial and which also cannot be the basis of conviction for any co- accused. More so, Mr. Dutta has pointed out that the seizure witness have also not supported the case of the prosecution and as per them, at the time of seizure or at the time of their presence, they have seen both the co-accused persons inside the police vehicle and saw the police officers seizing the contraband. Thus, the seizure of the contraband from the conscious possession of the co-accused is also not established through the seizure witnesses. 18. But from the evidence of those seizure witness, it is seen that at the time of Page No.# 5/6 seizure both the co-accused persons were available in the place of occurrence and the contraband was also shown to the seizure witnesses in whose presence the other formalities were also observed by the police authority. However, it is an admitted position that at the time of their presence both the co-accused persons were inside the police vehicle. But nothing has been seized from the present petitioner and hence, his case is different from the co-accused, who is basically the supplier of the contraband and also can be considered as the kingpin of the entire offence. In the earlier rejection order also it has been discussed he was aware about the recovery of the contraband and on the basis of which he also applied for pre-arrest bail which was rejected by the Court. Thus, it is not a case that he got arrested immediately on the basis of the statements made by the co-accused persons, rather, he was well aware that such kind of statement might have been made by the co-accused and thus, there may be probability of apprehending him in connection with the said case. 19. Further, it is seen that out of 9 numbers of witnesses, 5 numbers of witnesses have already been examined by the prosecution. The learned counsel basically stressed on the observation made by the Apex Court in the case of Toofan Singh (supra) wherein it has been observed that the statement of the c-o-accused persons recorded under Section 67 of the NDPS Act is not tenable in the eye of law and cannot be the basis of conviction. As relied by the learned counsel for the petitioner in the case of State by (NCB) Bengaluru (supra), the same view has been expressed by the Apex Court. 20. But in the instant case, it was earlier observed by this Court while rejecting the prayer for bail about the incriminating materials so far collected by the I.O. More so, as pointed out by the learned APP that he has a criminal antecedent, wherein the accused petitioner was earlier charge sheeted in another case on the allegation of theft and in another case, he was also charge sheeted under Section 25(a) of the NDPS Act. Thus, it also cannot be held that the accused petitioner is innocent and will not commit similar kind of offence, if he is released on bail, which is the requirement Page No.# 6/6 under Section 37 of the NDPS Act for considering a bail application in case of commercial quantity. Further it is seen that there is no new and urgent ground brought in the present petition being the subsequent bail application and the submission of the learned counsel on the merit of the case has already been discussed while rejecting the earlier bail application vide order dated 13.11.2025 by this Court. 21. Further, it is seen that the trial is going in a good pace and within a period of one year considerable number of witnesses have been examined by the prosecution and hence, the probability of completion of the trial within a reasonable period also can be expected. 22. In view of above discussion and considering the nature and gravity of the offence, this Court is of the opinion that, it is not at all a fit case to grant the petitioner the privilege of bail. 23. Accordingly, this bail application of the petitioner stands rejected. JUDGE Comparing Assistant