Page No.# 1/8 GAHC010169092026 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./2348/2026 KAMAL UDDIN CHOUDHURY ALIAS KAMAL UDDIN SON OF LATE MUJIBUR RAHMAN CHOUDHURY VILLAGE DHIT SADARASHI POST OFFICE SADARASHI POLICE STATION KARIMGANJ DISTRICT SRIBHUMI ASSAM VERSUS THE STATE OF ASSAM TO BE REPRESENTED BY THE PUBLIC PROSECUTOR Advocate for the Petitioner : MR. M A CHOUDHURY, MISS. P M AHMED,U U KHAN,MR A AHMED,MS. F B CHOUDHURY,MR. A AHMED Advocate for the Respondent : PP, ASSAM, -BEFORE- HON’BLE MR. JUSTICE ANJAN MONI KALITA ORDER 28.09.2026 Heard Mr. A. Ahmed, learned counsel appearing for the accused applicant and Mr. D. P. Goswami, learned Addl. PP for the State of Assam. 2. This is an application under Section 483 of the BNSS, 2023 praying Page No.# 2/8 for grant of bail to the accused applicant in connection with Special (NDPS) Case No. 44/2025 arising out Karimganj P.S. Case No. 221/2025 registered under Section 22 (C)/ 29 of Narcotic Drug and Psychotropic Substance Act, 1985 pending before the learned Addl. Sessions Judge, Sribhumi District. 3. An FIR was lodged on 12.05.2025 before the Karimganj Police Station alleging inter alia that an information was received that 3-4 of suspected persons were dealing alleged narcotic contrabands and were supposed to delivered in Karimganj town. On receipt of the aforesaid information, the Police team reached the location at about 10.40 AM, 2 numbers of suspected persons were seen coming towards Lakhibazar road were apprehended and the police recovered Yaba Tablets totaling to about 1093 grams from Ahmed Hussain and Ali Hussain. On a query, they stated that the same contrabands belonged to one Jashim Uddin and Mantu Mia and the same contraband was to be received or delivered to the accused applicant i.e. Kamal Uddin @ Kamal Choudhury. 4. On receipt of the FIR, the Police registered Karimganj P.S. Case No. 221/2025 under the aforementioned section against the accused applicant. 5. The accused applicant had approached this Court on earlier occasion by filing Bail Application No. 389/2026, which was duly considered by this Court and after consideration rejected the same vide order dated 25.02.2026. 6. The learned counsel appearing for the accused applicant submits that Page No.# 3/8 the accused applicant is behind the bar for the last 1 year 4 months and 13 days. He submits that charge sheet in the instant case has already been filed, however, till date, none of the PWs have been examined. He submits that no connection could be seen from the materials available between the apprehended persons and the accused applicant. He submits that in fact from a plain reading of the statement by the apprehended persons, it is seen that contradictory statement has been made as far as involvement of the accused applicant is concerned. He submits that though rigors of Section 37 of the NDPS are applicable in the instant case, however, from the materials available, section 37 of the NDPS is to be considered on the basis of prima facie materials available. He submits that since on the basis of allegations against the accused applicant could not be proved, the accused applicant should be released on bail. 7. Mr. D. P. Goswami, learned Addl. PP submits that since no PWs has been examined, as yet, the releasing of the accused applicant, at this stage, may hamper the investigation and he also submits that section 37 of the NDPS Act shall be applicable in the instant case and the materials brought before this Court, specifically implicates the accused applicant in the instant case. 8. This Court has considered the submissions made by the learned counsel appearing for the respective parties as well as the records available in the TCR. 9. Section 37 of the NDPS Act starts with the word “notwithstanding” which means that it has a non-obstante clause. Taking that aspect into account, a reading of section of Sub-section (ii) of Section 37 of the NDPS Page No.# 4/8 Act makes it clear that power to grant bail to a person, accused of under Section 22 (c)/29 of the NDPS Act which involves commercial quantity under the NDPS Act is not only subject to the limitations imposed under Section 483 of the BNSS but it also subject to the restrictions placed by sub-clause (b) of Section 1 of section 37 of the NDPS Act. It is seen that stringent restrictions have been put on the discretion of the Court for considering of an application accused of offences prescribed therein in view of the seriousness of the offences, however, the satisfaction contemplated regarding the accused is guilt or not has to be based on reasonable grounds. 10. The learned counsel appearing for the accused applicant has relied on the order passed in BA No. 126/2021 by a coordinate bench while discussing and referring to the rigors in section 37 of the NDPS Act. The learned coordinate bench has observed as follows: “15. It is settled law vide Narcotics Control Bureau vs. Kishan Lal and others, (1991) 1 SCC 705 that the powers of this Court to grant bail under Section 439, CrPC are subject to the limitations contained in Section 37 of the NDPS Act and the restrictions placed on the powers of the Court under Section 37, NDPS Act are applicable to this Court also in the matter of granting bail. In Satpal Singh vs. State of Punjab, reported in (2018) 13 SCC 813, the restrictions placed on the discretion to be exercised by the Court while considering an application for bail, by way of Section 37, NDPS Act have been reiterated. It has been observed that before allowing a bail application, the Court must be satisfied that there are reasonable grounds for believing that the person is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. Materials on record are to be seen and the antecedents of the accused is to be examined to enter such a satisfaction. The Court has held that these limitations are in addition to those prescribed under the CrPC or any other law in force on the grant of bail”. “16. The expression reasonable grounds means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The Page No.# 5/8 reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence [Collector of Customs, New Delhi vs. Ahmadalieva Nodira, [(2004) 3 SCC 579 and State of Kerala etc. vs. Rajesh etc., AIR 2020 SC 721]. The Court while considering the application for bail with reference to Section 37 of the NDPS Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and to record its satisfaction about the existence of such grounds. Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act. Relying on those decisions, the said position is reiterated in Pranab Das (supra)”. 11. As far as the evidentiary value of confessional statement made by the co-accused is concerned, the learned coordinate bench has observed as follows: “26. Section 25 of the Evidence Act is specific to the effect that no confession made to a police officer shall be proved as against a person accused of any offence. The NDPS Act does not contain any provision which overrides Section 25 of the Evidence Act. The Hon’ble Supreme Court of India in Criminal Appeal no. 152/2013 [Tofan Singh vs. State of Tamil Nadu], decided on 29.10.2020, has observed that to arrive at the conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the Constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India. In the said decision, it has been amply made clear, by the majority view, that any confessional statement made to police officers would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act”. 12. Taking into account the aforesaid observations of the coordinate bench as well as in a catena of judgments of the Hon’ble Supreme Court Page No.# 6/8 and also taking into account the materials available before this Court, it is seen that no materials as such, has been found clearly implicating the accused applicants. This Court has perused the statements made before the Police by the two apprehended accused persons which are found to be contrary as far as involvement of the accused applicant in the instant case is concerned. In one occasion, the apprehended 2 (two) accused persons have stated that the contraband materials were received from the accused applicant whereas, on the other hand, they stated those were supposed to be delivered to the accused applicant, thereby reasonable doubt occurs in the mind of the Court about the veracity of those statements. 13. The Hon’ble Supreme Court also held that confessional statement of the co-accused shall not be applicable under Section 25 of the evidence Act during the trial in the case of Tofan Singh vs. State of Tamil Nadu, reported in (2021) 4 SCC 1. This Court has also taken into consideration the delay in the trial and that the accused applicant is behind the bar for the last 1 (one) year 4 (four) months and 13 days and till date, none of the PWs has been examined in the instant case. 14. Taking into account the aforesaid materials as discussed above, this Court, though is not giving any finding, however, this Court is satisfied that there are reasonable grounds to belief that the materials available may not be sufficient and ultimately the accused may be acquitted of the offences as alleged against him under the NDPS Act. It is also seen that no materials have been brought before this Court to suggest that the accused applicant has criminal or any antecedents of being involved in any offences under the NDPS Act. Therefore, this Court is of the considered Page No.# 7/8 opinion that further custodial detention of the accused applicant may not be justified. It is seen that charge sheet in the instant case has been submitted on 22.07.2025 and charges were framed on 04.02.2026. However, none of the PWs has been examined, as yet, after framing of the charge. 15. Taking into account the entire facts of the case as well as materials brought before this Court, this Court is of the considered opinion that the accused applicant should be granted bail, at this stage. Accordingly, the accused applicant, namely, Kamal Uddin Choudhury @ Kamal Uddin shall be released on bail on furnishing a bail bond of Rs.50,000/- with 2 (two) local sureties of like nature to the satisfaction of the learned Special Judge, Sribhumi District, Assam subject to the following conditions:- (i)that the accused applicant shall furnish his local address and Mobile number along with proof before the learned Special Judge (NDPS), Sribhumi District, Assam; (ii) that the accused applicant shall not leave the territorial jurisdiction of the learned Special Judge, Sribhumi District, Assam without prior permission from the said Court; (iii) that the accused applicant shall appear before the learned Trial Court as and when called for; (iv) that the accused applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; Page No.# 8/8 (v) that the accused applicant shall not commit any offence similar to the offence of which, he is accused or of the commission of which, he is suspected of; and (vi) in the event of breach of any of the conditions, the Special Judge, Sribhumi, Assam shall be at liberty to cancel this bail without any reference to this Court. 16. Be that as it may, it is made clear that the observations made about the materials available and the conclusion that has been arrived at while considering the bail application is for the purpose of considering the instant bail application only and these observations shall have no bearing on the trial pending against the accused applicant. 17. In terms of the aforesaid observation, the instant bail application stands disposed of, as allowed. JUDGE Talom Tali, Private Secretary