Sankar @ Shankar Mondal vs Unknown
2021 Latest Caselaw 2309 Cal

24.03.2021.
266.
as
(Rejected)

                                 C.R.M. 1677 of 2021


                In Re:- An application for anticipatory bail under Section 438
                of the Code of Criminal Procedure in connection with Memari
                Police Station Case No.416 of 2020 dated 12.09.2020 under
                Section 20(b)(ii)( C ) of the N. D. P. S. Act.

                In the matter of : Sankar @ Shankar Mondal.
                                                     .... Petitioner.

                Mr. Uday Sankar Chattopadhyay,
                Ms. Snigdha Saha,
                Mr. Santanu Majhi.
                                                       ...for the Petitioner.

                Mr. Rana Mukherjee,
                Ms. Sujata Das.
                                                           ...for the State.



                   The Advocate-on-record of the petitioner undertakes to

              affirm and stamp the petition/application as per the Rules

              within four weeks from date. Subject to such undertaking, the

              application is taken up for hearing.

                   Apprehending arrest in connection with Memari Police

              Station Case No.416 of 2020 dated 12.09.2020 under Section

              20(b)(ii)( C ) of the N. D. P. S. Act, the petitioner has filed the

              instant application for anticipatory bail.

                   Though there is no appearance on behalf of the State but

              we request Mr. Rana Mukherjee who appeared in C.R.M.1106

              of 2021 to appear in the said case as it is also based on the

              identical facts and the genesis of the case is common. The
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office of the Public Prosecutor is directed to regularise the

appointment of Mr. Mukherjee in the instant case.

     A plea has been taken by the petitioner that the four

seizure lists which are annexed to the instant application

pertain to different place of occurrence on different dates

though the same has been recorded (singularly) in Memari P.S.

Case No.416 of 2020 which is per se illegal and contrary to the

provision of law. The second plea which has been projected

before us is founded on the parity to be shown to the present

petitioner as one of the co-accused viz., Debanand Sahani @

Raja had been granted bail by this Court on 15th February,

2021 in C.R.M.11119 of 2020. It is thus submitted that the

seizure lists would depict the recovery of the contraband below

the commercial quantity and, therefore, the Court may exercise

the discretion in a similar fashion that of the other co-accused

who had been enlarged on bail.

     The learned Advocate appearing for the State opposes the

prayer for bail and hands over the copy of the Case Diary and

invited us to peruse the material documents annexed thereto to

ascertain the truth and genesis of the case initiated by the

prosecution.

     Undoubtedly, the case       ensued on the basis of the

recovery of the contraband from the persons who are named in

the seizure list prepared on the date of occurrence. One of the

prime accused namely, Ram Prasad Patra was apprehended

and interrogated by the investigating officers who disclosed and

divulged procurement of the contraband and passing of the
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same to various persons. He volunteers to disclose such

persons and on the basis of the same, further seizures were

made and contrabands were also recovered from such persons

in pursuit of investigation. Naturally, it attracts Section 29 of

the N. D. P. S. Act and we do not find any fetter on the part of

the prosecution in preparing the seizure list on the date of the

seizures conducted on the information having been disclosed

by a prime accused and for such reason, the dates of the

seizure as well as the place of seizure shall naturally vary. The

segregation of different seizure having been made on such

information should not be allowed as it has some linkage with

the seizure of the contraband at the time of first interception

which is admittedly the commercial quantity.

     A judgement which is ex-facie bad on the perspective of

the facts having wrongly projected or recorded cannot bind the

Co-ordinate Bench. The point which is canvassed before us

does not appear to have been an integral part of the

submissions advanced in a bail application filed by Debananda

Sahani @ Raja or Sk. Jamshed (C.R.M.42 of 2021 dated

6.1.2021

) and, therefore, as a Co-ordinate Bench, we are not

bound by such judgment. Though the comity and amity is the

hallmark of the judicial discipline, yet it is not a rigid rule but

has a laxivity of being departed provided the Co-orodinate

Bench finds the facts recorded in the earlier judgment is not

re-production of the actual facts discern from the record. Even

though the recovery from the petitioner is shown below the

commercial quantity but the same is to be treated as joint

possession of the total contraband recovered during the

investigation and, therefore, the restriction imposed under

Section 37 of the N. D. P. S. Act cannot be whittled down or

rendered otiose.

Accordingly, the prayer for anticipatory bail of the

petitioner is rejected.

(Harish Tandon , J.)

(Tirthankar Ghosh, J.)