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2023 DIGILAW 1414 (CAL)

In Re : The Court on its own motion v. .

2023-08-18

GAURANG KANTH, JOYMALYA BAGCHI

body2023
JUDGMENT : 1. During hearing of the bail application of Palas Chandra Sarkar this court issued a suo motu rule calling upon co-accused Atul Jaiswal to show cause why his bail may not be cancelled. 2. Factual matrix giving rise to the suo motu rule are as follows : 3. A group of NCB officials had received secret information that Om Narayan Gupta along with his associates Palas Chandra Sarkar and Atul Jaiswal were dealing in narcotic substance. After recording the said information the NCB officials proceeded to conduct raid at the residence of Om Narayan Gupta. In the course of raid, Om Narayan Gupta, Palas Chandra Sarkar and Atul Jaiswal were found in the house. A large consignment of cough syrup containing codeine phosphate and other narcotic substances were found unauthorizedly stored in one of the rooms. On the premise that Atul Jaiswal was not in the room, his bail prayer was allowed on 24.4.2023. Thereafter, Palas Chandra Sarkar approached this Court for bail on the ground of parity. It was contended Atul Jaiswal was also present in the premises when recoveries were made. 4. Having noticed the fact that Atul Jaiswal was inside the premises and had opened the door of the house at the time of raid this Court by order dated 8.6.2023 issued suo motu rule to show cause why his bail may not be cancelled. By the self-same order bail prayer of Palas Chandra Sarkar was turned down. 5. Mr. Ahmed for Atul Jaiswal has responded to the rule. He contends that his client was not present at the spot. No independent witnesses were present at the time of alleged recovery. Subsequently, his client and others were summoned to a hotel and compelled to make statements under section 67 of the NDPS Act. He also submits that in view of the ratio in Abdul Basit alias Raju & Ors. vs. Mohd. Abdul Kadir Chaudhary (2014)10 SCC 754 this Court is not empowered to review its own order. Accordingly, he prays that rule may be discharged. 6. Mr. Basu for the NCB submits Atul Jaiswal was present in the house. He had opened the door. Thereafter recoveries were made from a room wherein Om Prakas Gupta and Palas Chandra Sarkar were present. It is true Atul Jaiswal was not present in the room from where recoveries were made. Accordingly, he prays that rule may be discharged. 6. Mr. Basu for the NCB submits Atul Jaiswal was present in the house. He had opened the door. Thereafter recoveries were made from a room wherein Om Prakas Gupta and Palas Chandra Sarkar were present. It is true Atul Jaiswal was not present in the room from where recoveries were made. This had weighed with this court while granting his bail. However, there are materials to show he was present in the premises and had opened the door at the time of raid. These incriminating materials had not been taken into consideration wile granting bail to Atul Jaiswal. 7. In Abdul Basit (supra) the Apex Court inter alia held that power of the Court to cancel bail granted by it is restricted only to supervening circumstances or new adverse facts which surfaced after the grant of bail. Presence of Atul Jaiswal inside the premises cannot be labelled as a subsequent adverse fact which had been collected during investigation. Non-consideration of this fact could have been a justifiable ground for NCB to challenge the order of bail before a superior court but cannot give jurisdiction to review our own order. 8. Under such circumstances, we are of the opinion power of this Court to cancel bail as circumscribed in Abdul Basit (supra) does not permit reconsideration of bail order in the light of preexisting materials. Hence, we are constrained to discharge the rule. We however, observe that the bail order had been passed without considering the fact that Atul Jaiswal was present in the premises at the time of raid and ought not to be considered as a binding precedent or relevant circumstance while considering any subsequent bail application of co-accused. 9. With these observations, rule is discharged.