In Re: Bablu Sk. @ Saddam Hossain vs State Of
2021 Latest Caselaw 3886 Cal

22.07.2021 Court No.30

Avijit Mitra CRR 375 of 2021 [Court on its Motion] In CRM 8480 of 2020 In re: Bablu Sk. @ Saddam Hossain... Petitioner And CRM 317 of 2021 In re: Diken Sk. ... Petitioner (Via video Conference)

Mr. Kallol Mondal For the Petitioner in CRM 8480 of 2020 Mr. Golam Mostafa Mr. Samirul Sardar For the Petitioner in CRM 317 of 2021

Mr. S. G. Mukherjee, ld. P.P.

Mr. Binay Panda Mrs. Puspita Saha For the State in both matters

One, Bablu Sk. alias Saddam Hossain (in short, Bablu)

preferred an application under Section 439 of the Code of

Criminal Procedure, 1973 (in short, the Code) being CRM

8480 of 2020 in connection with Berhampore Police Station

Case No. 418 of 2020 dated 17/05/20 u/s. 22(C)/29 of the

Narcotics Drugs and Psychotropic Substances Act, 1985 (in

short, NDPS Act). The said application was allowed by an

order dated 21st October, 2020. Thereafter, one, Diken Sk.

(in short, Diken) involved in the self-same Berhampore Police

Station Case No. 418 of 2020 dated 17/05/20 preferred an

application under section 439 of the Code being CRM No. 317

of 2020 on the ground of parity with Bablu. The said

application was heard on 4 th February, 2021 when a

coordinate bench of this Court on a prima facie finding that

bail had been granted to Bablu contrary to records, issued

Rule with direction upon the department to serve the same

upon Bablu. The said Rule was registered as CRR 375 of

2021. Thereafter, by an order dated 12 th March, 2021, Mr.

Mondol, learned advocate for the State Legal Services

Authority was engaged to represent Bablu. Upon such

engagement, written argument was submitted on behalf of

Bablu.

Mr. Mostafa, learned advocate appearing for the

petitioner in CRM No. 317 of 2021 submits that Diken is a

young man aged about 23 years and he has been falsely

implicated. He is languishing in custody since 7 th May, 2021

though Bablu, who is similarly situated with Diken, had been

enlarged on bail by a coordinate bench of this Court on 21 st

October, 2020. Accordingly, on the ground of parity, Diken

may be enlarged on bail.

Mr. Mondol, learned advocate appearing for Bablu

submits that upon considering the submissions of the parties

and the materials on record, a coordinate bench of this Court

enlarged Bablu on bail by an order dated 21 st October, 2020.

The said order cannot be cancelled by this coordinate bench

as Bablu had not misused his liberty. No adverse fact has

surfaced after Bablu was granted bail and no supervening

circumstances warrant such cancellation. In support of such

contention, reliance has been placed upon the judgments

delivered in the case of Ranjit Singh versus State of

Madhya Pradesh, reported in (2013) 16 SCC 797 and in the

case of Abdul Basit @ Raju versus Mohd. Abdul Kadir

Chaudhary and Anr., reported in (2014) 10 SCC 754.

Mr. Mondol argues that Section 362 of the Code

operates as a bar to any alteration or review of the case

except any clerical or arithmetical error by the Court. Even if

the observations in the order granting bail are controverted

on the basis of existing factual matrix, the order of a

coordinate bench of this Court needs to be assailed before the

Hon'ble Supreme Court.

Per contra, Mr. Mukherjee, learned Public Prosecutor,

appearing for the State argues that this Court does have the

power under Section 439(2) of the Code to set aside an

unjustified, illegal or perverse order granting bail. The order

dated 21st October, 2020 has been passed upon

misconstruing the actual facts on record. Such an order is a

nullity and can always be recalled and the provisions of

Section 362 would not operate. The power of recall is

different from the power of review. Reliance has been placed

upon judgments delivered in the case of State of Punjab -vs-

Davinder Pal Singh Bhullar and others, reported in 2011

(14) SCC 770 and in the case of New India Assurance

Company Limited -vs- Krishna Kumar Pandey, reported in

2019 SCC Online SC 1786.

He argues that the judgments cited by Mr. Mondol are

distinguishable on facts. The present case is under NDPS Act

which has been promulgated to combat the menace of crimes

relatable to drugs and psychotropic substances. The rigors of

Section 37 of the NDPS Act would have to be rebutted before

an accused may be enlarged on bail. A perusal of the order

dated 21st October, 20021 would reveal that the same had

been passed on the rudiments of the findings/observations

that 'although the name of the petitioner is reflected in the

seizure list, he was not arrested at the spot' and 'as it is

contended that the petitioner had fled from the spot' and that

Bablu's complicity in the alleged crime 'appears to have

transpired from the statement of co-accused before police

officer'. Such findings/observations are absolutely contrary to

the materials on record since both Bablu and Diken were

arrested at the spot and contraband substances above

commercial quantity was recovered from their possession. In

view thereof, this Court suo moto issued rule upon Bablu. On

the basis of the materials on record neither Bablu nor Diken

is entitled to be enlarged on bail and two different orders

cannot be passed by this Court.

He further argues that power under section 439(2) is a

special provision in the Code which overrides Section 362.

The inherent jurisdiction of this court under Section 482

needs to be exercised to cancel a bail order passed on

erroneous appreciation of facts. The High Court can certainly

interfere when the order is palpably unjustified. In support of

such contention he has placed reliance upon a judgment

delivered in the case of in re: Anwar Hossain Fakir reported

in (2016) SCC OnLine Cal 6176 and in the case of Puran -

Vs- Ram Bilas and another, reported in 2001 (6) SCC 338.

The materials in the case diary clearly disclose that

contraband substance above commercial quantity was

recovered from both Bablu and Diken and they were arrested

at the spot. The order dated 21 st October, 2020 has been

passed upon misconstruing the actual facts on record. On

the basis of the self- same records, it would be an absurdity

to suggest that the Court should retain the order granting

bail to Bablu and reject Diken's prayer for bail.

In the case of Prakash Kadam Versus Ramprasad

Vishwanath Gupta, reported in 2011 (4) Supreme 197 it

has inter alia been observed that 'in considering whether to

cancel the bail the Court has also to consider the gravity and

nature of the offence, prima facie case against the accused, the

position and standing of the accused, etc. If there are very

serious allegations against the accused his bail may be

cancelled even if he has not misused the bail granted to him'.

It is well known that a decision is an authority for what

it decides and not what can logically be deduced therefrom.

Even a slight distinction in fact or an additional fact may

make a lot of difference in decision making process. The

judgments delivered in the case of Ranjit Singh (Supra) and

Abdul Basit (Supra) are not pertaining to NDPS Act and are

distinguishable on facts.

The facts and circumstances of each case will govern

the exercise of judicial discretion in granting or cancelling

bail. There is no absolute bar towards cancellation of bail by

a coordinate bench. However, such power needs to be

exercised sparingly. The object underlying cancellation of bail

is to protect fair trial and to secure justice. Under Section 37

of the NDPS Act, notwithstanding anything contained in the

Code, the Court has to arrive at a finding that there are

reasonable grounds for believing that the accused is not

guilty of the offence and that he is not likely to commit any

offence while on bail. Thus while exercising statutory power

under Section 439(2) of the Code, the Court is bound to act

within the four corners of the Code and the NDPS Act. In the

present cases, contraband substance above commercial

quantity was recovered from Bablu and Diken and they were

arrested at the spot. It is not a case that Bablu's name has

transpired on the basis of a co-accused statement before a

police officer. Both of them are clearly involved in the offence

and the rigors of Section 37 of the NDPs Act are attracted.

For the reasons discussed above, we cancel the bail

granted to Bablu and direct him to surrender forthwith before

the Learned Special Court. In case Bablu does not surrender

within a period of three weeks from date, the learned Special

Court will be at liberty to issue non-bailable warrant of arrest

and subsequently on receipt of report of execution, issue

proclamation against him. The CRR 375 of 2021 is,

accordingly, disposed of.

In view thereof, we are also not inclined to exercise

discretion in favour of Diken, who has prayed for bail on the

ground of parity with Bablu. The application being CRM No.

317 of 2021 is, accordingly, dismissed at this stage.

The case diary is returned to Mr. Mukherjee, learned

Public Prosecutor.

The learned Registrar (Judicial Service) of this Court is

directed to communicate this order to the learned Court

below immediately.

Urgent Photostat certified copy of this judgment, if

applied for, be given to the parties, as expeditiously as

possible, upon compliance with the necessary formalities in

this regard.

(Suvra Ghosh, J.) (Tapabrata Chakraborty, J. )