Page No.# 1/7 GAHC010017142026 2026:GAU-AS:3390 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./286/2026 ASAD UDDIN ALIAS ASAR UDDIN ALIAS SOFI S/O LATE ABDUL HAMID RESIDENT OF VILL- DOLURBOND, P.S. RAMKRISHNA NAGAR, DIST. SRIBHUMI, ASSAM VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR. M AHMED, MD I H LASKAR Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE MITALI THAKURIA ORDER 06-03-2026 Heard Mr. M. Ahmed, learned counsel for the petitioner and Mr. B. Sarma, learned Additional Public Prosecutor, for the State respondent. 2. This is an application filed under Section 483 of the BNSS, 2023, praying for grant of bail to the accused/petitioner, namely, Asad Uddin @ Asar Uddin @ Sofi in connection with Special (NDPS) Case No. 03/2024 arising out of Page No.# 2/7 Ratabari P.S. Case No. 01/2024 registered under Sections 22(c)/25/29 of the NDPS Act. 3. Scanned copy of the TCR has already been received. Perused the same. 4. Mr. Ahmed, learned counsel for the petitioner submitted that the accused petitioner was arrested in connection with this case on 20.02.2025 and the charge sheet in the case was filed on 31.03.2024. He further submitted that during the investigation, police never searched for the petitioner and he was shown as an absconder in the charge sheet. However, on the strength of NBWA he got arrested and presently he is behind the bar for last one year. 5. He further submitted that there is no recovery of any contraband from the possession of the present petitioner and only on the basis of the statement made by the co-accused under Section 67 of the NDPS, the petitioner is charge sheeted in the present case, showing him as an absconder. 6. Mr. Ahmed, learned counsel further submitted that his earlier bail application was rejected by this Court vide its order dated 16.12.2025 in BA No. 2075/2025. He further submitted that basically his earlier bail application was rejected considering the submission of the learned Addl. PP that the relevancy of the statement of co-accused will come at the time of trial but considering the role of the petitioner, who seems to be the kingpin of the entire crime, the bail application was rejected by the Court. In that context, he further submitted that the statement of the co-accused under Section 67 NDPS can also be considered at the time of considering the bail application and it is settled law that the statement of the co-accused recorded under Section 67 NDPS cannot be the basis of conviction for an accused. 7. In that context, he also relied on decisions of Coordinate Bench of this Page No.# 3/7 Court in BA No. 1102/2025 dated 28.07.2025 and BA No. 3398/2025 dated 17.11.2025 wherein also the Coordinate Bench of this Court had granted bail considering the observation of the Hon’ble Supreme Court passed in the case of Tofan Singh Vs. State of Tamil Nadu reported in (2021) 4 SCC 1 wherein it is observed that the statement of the co-accused cannot be used as an evidence in a trial involving the offence under the NDPS Act. 8. Mr. Ahmed, learned counsel also relied on a decision of the Hon’ble Supreme Court in the case of P Krishna Mohan Reddy Vs. The State of Andhra Pradesh reported in 2025 0 Supreme (SC) 865 and emphasized on 53 (iv) of the said judgment, which reads as under:- “53. From the above exposition of law, the following emerges:— (iv) Where such police statement of an accused is confessional statement, the rigour of Section(s) 25 and 26 respectively will apply with all its vigour. A confessional statement of an accused will only be admissible if it is not hit by Section(s) 24 or 25 respectively and is in tune with the provisions of Section(s) 26, 28 and 29 of the Evidence Act respectively. In other words, a police statement of an accused which is in the form of a confession is per se inadmissible and no reliance whatsoever can be placed on such statements either at the stage of bail or during trial. Since such confessional statements are rendered inadmissible by virtue of Section 25 of the Evidence Act, the provision of Section 30 would be of no avail, and no reliance can be placed on such confessional statement of an accused to implicate another co-accused.” 9. Mr. Ahmed, learned counsel further submitted that on perusal of the record also it is seen that except the statements made by two co-accused regarding his involvement in the alleged offence, there is no other statement made by other person showing his involvement in the alleged offence and at the same time, there is no recovery till date from the possession of the accused petitioner. 10. Further he submitted that all the co-accused persons have already been granted bail by this Court and hence considering the case of the petitioner in Page No.# 4/7 the same footing, he also may be released on bail on the ground of parity. The petitioner being the permanent resident of his addressed locality, he will appear before the learned Trial Court as and when the case is fixed by the Court. 11. Mr. Sarma, learned APP submitted in this regard that the present petitioner was not cooperating during the investigation and inspite of several attempt made by the I.O., he could not be arrested as he was absconding during the entire investigation, for which he had to be shown as an absconder in the charge sheet. 12. Mr. Sarma, learned APP further submitted that it is not only a case that the petitioner was charge sheeted on the basis statement made by the co-accused persons, but he is the main kingpin of the entire crime, who along with some other co-accused person had purchased the contraband from the State of Mizoram. During investigation it also reveal that out of 12 numbers of packet of contraband, some cartons were also in the possession of the petitioner, but as he did not cooperate during the investigation, those contraband could not even recovered by the I.O. Mr. Sarma accordingly submitted that it is not a case that on the basis of the statement made by the co-accused, the petitioner was charge sheeted in this case, rather, there are sufficient incriminating materials against the petitioner, who is stated to be the main kingpin of the case and on the basis of which, the charge sheet was also filed against the petitioner. Mr. Sarma accordingly submitted that the case is of commercial quantity and hence the rigor of Section 37 will also attract. Accordingly he submitted that there is no ingredient in the case diary to consider that the petitioner is not guilty of the offence or there is no probability of committing the same offence, if he is allowed to go on bail. Mr. Sarma accordingly raised vehement objection and submitted that it is not at all a fit case to enlarge the petitioner on bail at this Page No.# 5/7 stage. 13. Heard the submissions made by the learned counsel for both sides and I have also perused the case record. It is a fact that the earlier bail application was rejected for the present petitioner considering all the aspects of the case and the materials in the case diary and it is also held that the petitioner is the main kingpin of the entire crime. The observation made in para 12 of the earlier bail rejection order reads as under:-- “12. Hearing the submissions made by learned counsel for both sides, I have also perused the case records, charge-sheet and other relevant annexures along with the petition. It is an admitted fact that there is no recovery of contraband from the possession of the accused but, from the plain reading of the FIR and the materials available in the Case Diary it is seen that the present petitioner is the kingpin of the entire crime who used to purchase the contraband from the State of Mizoram and thereafter he distributed the co- accused/persons for selling it to other places. His wife is also involved in the alleged offence and she is also an FIR named accused. It is a fact that during the investigation of this case the co-accused/persons made a statement stating that the present accused/petitioner is the person who used to bring the contraband from the State of Mizoram but, subsequently at the time of investigation also it has come out that the present petitioner is very much involved in the alleged offence on the basis of which the investigation is done and finding prima facie case against the present petitioner the case was charge sheeted against him. Thus, it is not a case that only on the basis of the statement of the co-accused, the case is charge-sheeted against the present accused/petitioner. Rather it reveals that he is one of the persons who is involved in the entire crime and is fully associated with the alleged offence though there was no recovery from the conscious possession of the accused/petitioner. It is an admitted fact that a person cannot be convicted on the basis of statement made by the co-accused u/s 67 NDPS Act. But, during the investigation, the statement of the co-accused may be the basis of investigation though it may not be admitted at the time of trial.” 14. But on perusal of the record, it is seen that though the case is charge sheeted on 31.03.2024 and the petitioner was arrested in connection with this case on 20.02.2025, the prosecution could not examined any evidence till date, nor even the copies were furnished to the petitioner including other co-accused persons till date and the case is still pending at the state of furnishing of the Page No.# 6/7 copies and charge is also not framed by the Court. 15. From the charge sheet it is seen that there are 10 cited witnesses, but till date no witnesses could be examined by the prosecution and there is no specific reason assigned in the order as to why inspite of lapse of more than one year, the copies could not be served to the accused persons. Thus, it is seen that the probability of conclusion of the trial within a reasonable period cannot be expected at this stage, when the charge could not be framed by the prosecution and at the same when the copies not even furnished to the accused persons till date. 16. So, without going into the other detail merit of the case, which has already been discussed in the earlier bail rejection order, this Court is of the opinion that the petitioner may be released on bail on the ground of long incarceration, which violates the constitutional right of the petitioner under Article 21 of the Constitution of India. 17. In the case of Rabi Prakash (supra), the Hon’ble Apex Court has granted bail to the accused with a view that “the prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.” 18. Accordingly, the accused/petitioner, namely, Asad Uddin @ Asar Uddin @ Sofi, be released on bail in connection with Special (NDPS) Case No. 03/2024 arising out of Ratabari P.S. Case No. 01/2024 registered under Sections 22(c)/25/29 of the NDPS Act, on furnishing a bond of Rs. 1,00,000/- (Rupees One Lakh) only, with 2 (two) sureties of like amount, one surety has to Page No.# 7/7 be a government servant to the satisfaction of the learned Special Judge, Sribhumi, subject to the following conditions: (i) that the petitioner shall appear before the Court of learned Special Judge, Sribhumi, on each and every date to be fixed by the Court; (ii) that the petitioner 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/her from disclosing such facts to the Court or to any police officer; (iii) that the petitioner shall submit his Aadhar Card and PAN Card before learned Special Judge, Sribhumi; and (iv) that the petitioner shall not leave the jurisdiction of the learned Special Judge, Sribhumi, without prior permission. 19. In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant