Page No.# 1/7 GAHC010189602026 2026:GAU-AS:13749 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Crl.)/915/2026 BILAL AHMED S/O LATE ABDUL JALIL, R/O VILLAGE NAGARIA, P.S. PATHARKANDI, P.O. PATHARKANDI, PIN-788724, DISTRICT SRIBHUMI, ASSAM. VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR. M RAHMAN, H AHMED,R J OJAH,MD A RAHMAN Advocate for the Respondent : PP, ASSAM, Linked Case : AB/1847/2026 BILAL AHMED S/O LATE ABDUL JALILR/O VILLAGE NAGARIA P.S. PATHARKANDI P.O. PATHARKANDI PIN NO. 788724 DISTRICT SRIBHUMI ASSAM VERSUS THE STATE OF ASSAM REP BY THE PP ASSAM ------------ Advocate for : MR. M RAHMAN Page No.# 2/7 Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER Date : 14.09.2026 Heard Md. A. Rahman, learned counsel for the petitioner. Also heard Mr. M.P. Goswami, learned Additional Public Prosecutor for the State. 2. The instant interlocutory application has been filed seeking correction of order dated 24.08.2026 passed by this Court in AB 1847/2026. 3. It is stated and submitted that in para 2 of the order, there is some error in the Police Station Case number and the Special Case number. 4. Upon perusing the said order, vis-à-vis the records, I find that with regard to NDPS Case No. 139/2022, the “year 2022” was not typed inadvertently in para 2 of the order and further in the same para, the police station case number was wrongly typed as Bazaricherra Police Station Case No. 139 of 2022 instead of Bazaricherra Police Station Case No. 171 of 2022. 5. The aforesaid errors are merely typographical errors and are hereby corrected. 6. In this application, the applicant/petitioner is seeking correction of another purported error. It is stated that in para 4, in third line, the words “for bail” may be omitted or deleted and in para 5, the words “for bail” should be replaced by “under section 91 of BNSS”. Page No.# 3/7 7. For ready reference, the para 4 and 5 of the bail order may be reproduced herein below – “4. The scanned record, as called for, has not yet been received. However, the learned counsel submits at this stage that he may be given the liberty to approach the learned trial court for bail and upon such appearance, he may by allowed to take recourse to the provision of Section 91 of BNSS. 5. Accordingly, the instant bail petition is disposed of with the observation that the petitioner shall file an application for bail before the learned trial court and upon doing so, necessary orders shall be passed on the same, keeping in mind all the factors.” 8. The learned counsel for the applicant contents that he was seeking liberty to appear before the learned trial court to invoke the provisions of section 91 BNSS and therefore, the aforesaid purported errors in the bail order may be corrected. 9. I have perused the bail petition, which was filed by the applicant. In the same, the applicant prayed for anticipatory bail. However, in the body of the bail petition, he does refer to section 91 of BNSS. 10. The statutory provision may be reproduced herein below – 91. Power to take bond or bail bond for appearance. – When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond or bail bond for his appearance in such Court, or any other Court to which the case may be Page No.# 4/7 transferred for trial. 11. The learned counsel has referred to the case of Satender Kumar Antil vs. CBI & Anr., reported in (2022) 10 SCC 51 and Tarsem Lal vs. Directorate of Enforcement Jalandhar Zonal Office, reported in (2024) 7 SCC 61. In the case of Satender Kumar Antil (supra), the Hon'ble Apex Court has stated about the desirability of taking recourse to section 91 BNSS (earlier section 88 CrPC), in cases where a person not arrested during investigation in a criminal case appears before the summoning court and undertakes to furnish bond. 12. In the case of Tarsem Lal (supra), the two-judge Bench of the Hon'ble Apex Court approved the applicability of the same section 91 BNSS in a case where the accused facing a prosecution upon a complaint under the PMLA was not arrested during investigation and appeared before the trial court. However, what was stated in paragraph 34 of that decision may be reproduced herein below – “34. We are making it clear that we are dealing with a fact situation where the accused shown in the complaint under Section 44(1)(b) PMLA was not arrested by ED by the exercise of power under Section 19 PMLA till the complaint was filed.” 13. In the case of Pankaj Jain vs. Union of India, reported in (2018) 5 SCC 743, the two-judge Bench of the Hon'ble Apex Court elaborately dealt with the said statutory provision of section 88 CrPC (as it existed then). The court held that the exercise of the discretion of taking bond from the person is discretionary and that section 88 CrPC is not mandatory. Page No.# 5/7 14. In the case of Sanjay Chandra v. CBI, reported in 2011 SCC Online, Del 2365, the Delhi High Court held as follows in paragraph 22 on a conjoint reading of section 88 and 437 CrPC – "22. On reading of the above, it is obvious that Section 88 CrPC empowers the court to seek bond for appearance from any person present in the court in exercise of its judicial discretion. The section also provides that aforesaid power is not unrestricted and it can be exercised only against such persons for whose appearance or arrest the court is empowered to issue summons or warrants. The words used in the section are "may require such person to execute a bond" and any person present in the court. The user of word "may" signifies that Section 88 CrPC is not mandatory and it is a matter of judicial discretion of the court. The word "any person" signifies that the power of the court defined under Section 88 CrPC is not accused specific only, but it can be exercised against other category of persons such as the witness whose presence the court may deem necessary for the purpose of inquiry or trial. Careful reading of Section 88 CrPC makes it evident that it is a general provision defining the power of the court, but it does not provide how and in what manner this discretionary power is to be exercised. The petitioners are accused of having committed non-bailable offences. Therefore, their case for bail falls within Section 437 of the Code of Criminal Procedure which is the specific provision dealing with grant of bail to an accused in cases of non-bailable offences. Thus, on conjoint reading of Sections 88 and 437 CrPC, it is obvious that Section 88 CrPC is not an independent section and it is subject to Section 437 CrPC. Therefore, I do not find merit in the contention that order of the learned Special Judge refusing bail to the petitioners is illegal being violative of Section 88 CrPC." (emphasis added) Page No.# 6/7 15. It is not specifically stated in Tarsem Lal (supra) that the stringent bail conditions of PMLA would not be applicable in exercising discretion under Section 91 BNSS. This, apart from specific clarification by the court in para 24 as noticed above that the judgment was rendered in the specific facts situation of the accused in a complaint pertaining to a PMLA case. 16. The stringency of the twin conditions under section 37 NDPS Act is extremely high in as much as the court in situations where section 37 is applicable (such as in commercial quantity) has to record a specific finding that there are grounds for believing that the accused is not guilty. 17. It remains to be seen as to whether what has been held in Tarsem Lal (supra), in the context of a complaint under PMLA can be straight away transposed to NDPS Act and held to be prevailing over stringent conditions under section 37 of the NDPS Act. 18. Therefore, perhaps it cannot be straight away held that in an NDPS case, where section 37 of the Act is applicable per se, whenever an accused seeks to take recourse to section 91 of the BNSS, the twin conditions envisaged under section 37 of the NDPS Act would not apply. It may be mentioned here that there are a catena of decisions of the Hon’ble Apex Court holding that any bail granted under the NDPS Act in violation of section 37 – wherever the said provision is applicable – is legally incorrect and liable to be set aside. 19. Thus, even where an NDPS Court is seeking to consider exercising discretion under section 91 BNSS, it has to keep in mind the applicability of section 37 of the Act and provide an opportunity to the prosecution to have its say on the matter by way of opposition or otherwise. Page No.# 7/7 20. In the context of the complexity of the points involved in the matter as indicated above, the second set of corrections that the applicant is seeking cannot be said to fall within the ambit of clerical errors (i.e. is errors of typing), which are amenable to correction, without violating the law barring review of a final order by a criminal court. Therefore, this part of the prayers is rejected. 21. The I/A accordingly stands partly allowed and this order shall be read as part of the order dated 24.08.2026 passed in AB 1847/2026. JUDGE Comparing Assistant