Gauhati High Court
Page No.# 1/7 vs The State Of Assam on 28 July, 2025
Page No.# 1/7
GAHC010073842025
2025:GAU-AS:9744
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1102/2025
ABUL KALAM AZAD
S/O LATE NURUL ISLAM, VILL- BHERALDI (PALAHARTAL), P.S.- BARPETA,
DIST- BARPETA, ASSAM
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. R ALI, MR H A AHMED
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
28.07.2025
1. Heard Mr. R. Ali, the learned counsel for the petitioner. Also
heard Mr. K.K. Das, the learned Additional Public Prosecutor,
appearing for the State of Assam.
2. This application under Section 483 of the Bharatiya Nagarik
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Suraksha Sanhita(BNSS), 2023 has been filed by the petitioner,
namely, Abul Kalam Azad, who has been detained behind the
bars since 17.02.2025 (for the last 161 days), in connection
with Tarabari P.S. Case No. 10/2025, under Section 22(C) of
the NDPS Act, 1985.
3. The gist of accusation in this case is that on 15.02.2025
one Manabjyoti Bora, SI of Police had lodged an FIR before
the Officer-In-Charge of Tarabari Police Station, inter alia,
alleging that an information was received through reliable
sources that one Prasenjit Das, has kept illegal narcotics drugs
in his house for selling. A search team was constituted. During
search operation in the house of the said Prasenjit Das,
recovery of capsules containing Tramadol as well as
Nitrazepam capsules and Codeine Phosphate cough syrup
were made.
4. The learned counsel for the petitioner has submitted that
the petitioner has not been named in the FIR, neither any
narcotic drugs or psychotropic substances have been
recovered from his possession.
5. The learned counsel for the petitioner further submits that
the petitioner is the holder of a drug distributor license, which
is valid till 19.02.2028. He further submits that the petitioner
has been implicated in this case only on the basis of the
statement made by the accused, from whose possession the
contraband was recovered. He submits that apart from the
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aforesaid statement, there is nothing on record to implicate
the petitioner in this case.
6. He further submits that in view of the ruling of the Apex
Court in the case of “Tofan Singh Vs. State of Tamil Nadu
reported in (2021) 4 SCC 1″, the statement of the co-accused
recorded during the course of the investigation is not
admissible as evidence in trial involving offence under the
NDPS Act, 1985 and in this case, there is nothing apart from
the aforesaid statement.
7. The learned counsel for the petitioner has also submitted
that in this case, in the notice issued to the relatives of the
petitioner under Section 48 of the BNSS, 2023 no grounds of
arrest were mentioned therein.
8. He submits that in view of the observations made by the
Apex Court in the case of ” Vihaan Kumar Vs. State of Haryana
and Another” reported in “(2025) 5 SCC 799.” Even in the
notice issued under Section 48 of the BNSS, 2023 which is
served on the relatives/friends/nominated person of the
arrested accused, the requirement of furnishing grounds of
arrest is there and any violation of the said requirement would
render the arrest of the petitioner illegal.
9. On the other hand, the learned Additional Public Prosecutor
has produced the Case Diary of Tarabari P.S. Case No.
10/2025, and has submitted that the contraband involved in
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this case is of commercial quantity and therefore, the embargo
of Section 37 of the NDPS Act, 1985 is applicable in this case.
He, however, fairly submits that the material against the
petitioner at this stage of the investigation is only the
statement of the co-accused, who has stated that he used to
procure the drugs from the present petitioner.
10. The learned Additional Public Prosecutor has also
submitted that in this case, there has been no violation of
statutory requirement of furnishing grounds of arrest either to
the petitioner under Section 47 of the BNSS, 2023 or under
Section 48 of the BNSS, 2023.
11. The learned Additional Public Prosecutor further
submits that the petitioner was earlier also found involved in
NDPS Case, i.e. Barpeta P.S. Case No. 711/2022 under
Sections 22(c)/29 of the NDPS Act, 1985. He therefore,
opposed the grant of bail to the petitioner at this stage.
12. In response to the submissions made by the
learned Additional Public Prosecutor, the learned counsel for
the petitioner has submitted that in the case, in which the
petitioner was earlier arrested, he has already been acquitted
by the judgment dated 20.02.2023 in Special (NDPS) Case No.
90/2022, passed by the learned Special Judge, Barpeta.
13. I have considered the submissions made by the
learned counsel for both sides and have gone through the
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Case Diary of Tarabari P.S. Case No. 10/2025.
14. It is apparent from the Case Diary that the
contraband seized in this case was recovered from the
possession of one Prasenjit Das, who has been named in the
FIR as an accused. Nothing was recovered from the present
petitioner. It also appears from the Case Diary that even after
161 days of detention of the present petitioner, apart from the
statement of the co-accused, no other materials is there in the
Case Diary, which incriminates him in the aforesaid case.
15. The Apex Court has clarified in the judgment of
the “Tofan Singh Vs. State of Tamil Nadu (supra) that the
statement of the co-accused cannot be used as an evidence in
a trial involving offence under the NDPS Act, 1985.
16. Though such a statement may give lead to the
Investigating Authority to collect admissible evidence,
however, in this case, even after detention of the petitioner for
the last 161 days, the Investigating Agency is unable to collect
any admissible evidence against the petitioner which would
implicate the complicity of the petitioner in the offence alleged
in this case, under such circumstances, this Court is of the
considered opinion that the petitioner is entitled to get bail in
this case on that ground only.
17. As the petitioner is found entitled to get bail, the
second plea taken by the petitioner regarding violation of the
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requirement of Section 48 of the BNSS, 2023 is not required to
be discussed in this case.
18. In view of the above discussions, the above-
named petitioner is allowed to go on bail of Rs. 50,000/- with
a suitable surety of like amount, subject to the satisfaction of
the learned Special Judge, Barpeta with following conditions
that:-
i. That the petitioner shall cooperate in the trial of Tarabari P.S. Case No.
10/2025 under Section 22(C) of the NDPS Act, 1985.
ii. That the petitioner shall appear before the Trial Court as and when so
required by the Trial Court;
iii. That the petitioner shall not directly or indirectly make any inducement,
threat, or promise to any person who may be acquainted with the facts of the
case, so as to dissuade such person from disclosing such facts before the Trial
Court in the trial pending against the present petitioner;
iv. That the petitioner shall provide his contact details including photocopies of
his Aadhar Card or Driving License or PAN card, mobile number, and other
contact details before the Trial Court;
v. That the petitioner shall not leave the jurisdiction of the Trial Court without
prior permission of the Trial Court and when such leave is granted by the Trial
Court, the petitioner shall submit his leave address and contact details during
such leave before the Trial Court; andvi. That the petitioner shall not commit any offence while on bail.
19. With the above observation, this bail application is
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accordingly, disposed of.
20. Send back the Case Diary.
JUDGE
Comparing Assistant