Page No.# 1/6 GAHC010076262026 2026:GAU-AS:6491 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1080/2026 PAPU DAS AND ANR S/O BHABEN DAS, PERMANENT R/O DAKUWAL GAON, PS NAGAON, DIST NAGAON, ASSAM 2: ANSARUL HOQUE S/O ABDUL MOTALIB PERMANENT R/O BHUYAN PATTY PS NAGAON DIST NAGAON ASSA VERSUS THE STATE OF ASSAM TO BE REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, ASSAM Advocate for the Petitioner : MR SARFRAZ NAWAZ, A MISHRA,SAMIM RAHMAN,MD A RAHMAN,MR. SURAJIT DAS,MR A W AMAN Advocate for the Respondent : PP, ASSAM, :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 12.05.2026 Heard Mr. S. Nawaz, the learned counsel appearing for the petitioners. Also heard Mr. K. Baishya, the learned Addl. Public Prosecutor, Assam. Page No.# 2/6 2. This is an application under Section 483 of the BNSS, 2023 whereby the petitioners, namely- Papu Das and Ansarul Hoque have prayed for regular bail in respect of Nagaon P.S. Case No.135/2026, under Sections 22(c)/29 NDPS Act, 1985. 3. In an incident where commercial quantity of narcotic drugs were recovered from some other persons, these two petitioners were arrested on the basis of statements of those other persons. Nothing was recovered from the present two petitioners. The Case Diary reveals that the two petitioners are drug paddlers only. 4. Mr. Nawaz has relied upon a judgment of the Hon’ble Supreme Court that was delivered in Bharat Chaudhary v. Union of India, (2021) 20 SCC 50. Paragraph 14 of the said judgment is quoted as under: “14. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15-7-2021 [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] . This is all the more so when such a reliance runs contrary to the ruling in Tofan Singh [Tofan Singh v. State of T.N., (2021) 4 SCC 1 : (2021) 2 SCC (Cri) 246] . The impugned order [Union of India v. Bharat Chaudhary, 2021 SCC OnLine Mad 6554] qua A-4 is, accordingly, quashed and set aside and the order dated 2-11-2020 passed by the learned Special Judge, EC & NDPS cases, is restored. As for Raja Chandrasekharan (A-1), since the charge-sheet has already been filed and by now the said accused has remained in custody for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial court.” 5. Mr. Nawaz further relied upon another judgment of the Supreme Court that was delivered in P. Krishna Mohan Reddy v. State of Andhra Pradesh, reported in 2025 SCC OnLine SC 1157. Paragraph 53 of the said judgment is quoted as under: “53. From the above exposition of law, the following emerges:— (i) A person who is accused of an offence or named in the first information report, can be examined by the police and his statement may be recorded under Section 161 of the Cr. P.C., as held in Nandini Satpathy (supra). (ii) A statement of an accused under Section 161 of the Cr. P.C., would ordinarily be of two kinds, it may be inculpatory in nature or may be exculpatory in nature. Page No.# 3/6 (iii) An inculpatory statement again may be in the form of an admission or a confession. If such statement admits either a gravely incriminating fact or substantially all the facts which constitute the offence, respectively, as held in Pakala Narayana Swami (supra), then it amounts to confession. (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. (v) A confessional statement of one accused implicating another co-accused may be taken into consideration by the court against such co-accused in terms of Section 30 of the Evidence Act, only at the stage of trial, where (1) the confession itself was relevant and admissible in terms of the Evidence Act; (2) was duly proved against the maker; (3) such confessional statement incriminates the maker along with the co-accused and; (4) both the accused persons in question are in a joint trial for the same offence. (vi) Furthermore, because such confessional statements are not “evidence” in terms of Section 3 of the Evidence Act as held in Bhuboni Sahu (supra), such a confession as held in Kashmira Singh (supra) can only be pressed into consideration by the court as a rule of prudence, to lend assurance to the other evidence against such co-accused, provided that aforesaid ingredients or conditions of Section 30 read with Section(s) 24 to 29 of the Evidence Act, are fulfilled. (vii) Where the police statement of an accused is in the form of an admission, such inculpatory statement even if it implicates another co-accused cannot be taken into consideration against such co-accused in terms of Section(s) 17 read with 21 of the Evidence Act, as doing so would militate against the general principle, that an admission may be given as evidence against the maker alone. The exceptions to the aforesaid general principle carved out under the Evidence Act, do not permit the usage of Page No.# 4/6 such admission against a co-accused in any scenario whatsoever. (viii) Where the police statement of the accused is an exculpatory statement i.e., it is neither a confession nor an admission, the statement being one under Section 161, would immediately attract the bar under Section 162 of the Cr. P.C., and the same may be used only for the very limited purpose provided in the Proviso for the purpose of contradiction or re-examination of such accused person alone, as held in Mahabir Mandal (supra). Even if such exculpatory statement of one accused, implicates another co-accused, the same cannot be taken into consideration against such co-accused, as there can be no credibility attached to an exculpatory statement of an accused implicating another co-accused, more particularly because it is neither required to be given on oath, nor in the presence of the co-accused, the same cannot be tested by cross-examination and the exculpatory nature of such statement militates against the foundational principle that permits taking into consideration a statement of one accused person against another co-accused as explained in Bhuboni Sahu (supra), i.e., ‘when a person admits guilt to its fullest extent either to a certain incriminating fact or substantially all the facts which constitute the offence, and in doing so exposes himself and in the process other co-accused persons to the pain and penalties provided for the guilt, there exists a sincerity and semblance of sanction for the truthfulness of such statement’. (ix) Although a handful of decisions of this Court such as Indresh Kumar (supra) and Salim Khan (supra) have held that statements under Section 161 of the Cr. P.C. ought to be looked into by the courts at the stage of anticipatory or regular bail for the purpose of ascertaining whether a prima-facie case has been made out against the accused and the nature and gravity of the allegations, yet the aforesaid rule only applies insofar as such statements under Section 161 were made by witnesses and not accused persons. A statement of an accused under Section 161 of the Cr. P.C. stands on a completely different footing from a police statement of a witness. As already discussed in the foregoing paragraphs, if the police statement of an accused is inculpatory in nature, its more in the form of a confession or admission rather than a statement, and the relevant provisions of Section(s) 17 to 30 of the Evidence Act, will apply with all its vigour. Where such statement of the accused is exculpatory in nature, the same can be looked into by the courts only for the limited purpose of either culling out the stance of the accused person qua the allegations or for contradicting the accused, if the accused chooses to be examined as a witness in terms of Section 315 of the Cr. P.C.. However, such exculpatory statement Page No.# 5/6 insofar as it implicates another accused person cannot be looked into by the courts, as such statements by their nature cannot be tested by cross-examination if such accused person declines to be a witness in the trial in terms of Section 315 of the Cr. P.C., and because such exculpatory statement has no credibility as explained in Bhuboni Sahu (supra). (x) Before the court looks into the police statement of any person under Section 161 of the Cr. P.C. for the purpose of anticipatory or regular bail, the court must first ascertain whether such person is actually a witness or an accused person, or likely to be an accused person in respect of the offence(s) alleged. This is because, there may be situations where a person while giving his statement under Section 161 of the Cr. P.C. may not be an accused, but later arrayed as one. In such a scenario the courts must be mindful of the fact that because the investigation is still ongoing, it is more likely for a person who was originally a witness to happen to be later arrayed as an accused person. If the court was to blindly place reliance on statement of such a person merely because he is not named in the first information report, without first seeing whether such person is likely to be arrayed as an accused or not, it would lead to an absurd situation where the statement of such a person may be relied upon up until such person is arrayed as an accused. We also caution the courts, where it emerges from the material on record, that such a person is likely to be arrayed as an accused, the courts should refrain from expressing any such opinion so that the investigation is not prejudiced in any manner.” 6. Per contra, Mr. Baishya has submitted that the case is in its initial stage of investigation and some more time should be given to the Investigating Agency. 7. I have given my anxious considerations to the submissions made by the learned counsels of both sides. 8. Nothing was recovered from the possession of the petitioners. They were arrested on the basis of the statements of the co-accused. This Court is of the opinion that under the given circumstances the petitioners no longer deserves to be detained in custody. 9. The bail prayer is allowed. The petitioners, namely- Papu Das and Ansarul Hoque Page No.# 6/6 who were arrested in connection with Nagaon P.S. Case No.135/2026 under Sections 22(c)/29 NDPS Act, 1985, shall be released on bail of ₹25,000/- each with sureties of like amount to the satisfaction of the learned Special Judge, Nagaon, Assam. With the aforesaid direction, the instant bail application is disposed of. Case Diary shall be returned. JUDGE Comparing Assistant