JUDGMENT :

Shampa Dutt (Paul), J.

1. The present revision has been preferred against an order dated 28.11.2022 passed by the learned Judge, Special Court (under NDPS Act), Jalpaiguri, issuing warrant of arrest against the petitioner in connection with Jaigaon Police Station Case No. 35 of 2022 dated 25.02.2022 under Sections 22(C) of Narcotic Drugs and Psychotropic Substances Act; adding Sections 25/29 of Narcotic Drugs and Psychotropic Substances Act; (NDPS 20 of 2022).

2. The petitioner’s case is that Jaigaon Police Station Case No. 35 of 2022 dated 25.02.2022 under Sections 22(C) of Narcotic Drugs and Psychotropic Substances Act, was started on the basis of a complaint lodged by one Dhurba Pradhan, S.I. of Police, Jaigaon Police Station, (hereinafter referred as defacto complainant) with the Officer-in-charge of said Police Station.

3. The allegations leveled in the said complaint is to the effect that on 24.02.2022 defacto complainant received information regarding loading of huge quantity of prohibited drugs. He informed his superiors and after permission of superiors left with other police personals. On reaching Daldabari, he found one truck loaded with bricks, parked inside the premises of Baba Ganinath Iron Store. The complainant intercepted the truck and two persons namely Om Prakash Jaiswal and Dinanath Jaiswal. On being searched he recovered two cartons containing 28000 pieces of ‘SPM-PRX WOCKHARDT’ capsules.

4. The petitioner states that he moved an application under Section 438 of Criminal Procedure Code, 1973, before Hon’ble High Court, Circuit Bench at Jalpaiguri, being C.R.M. No. 431 of 2022 and vide order dated 08.12.2022 same was turned down.

5. After completion of investigation, charge-sheet being C.S. No. 270 of 2022 dated 18.11.2022 under Sections 22(C) of Narcotic Drugs and Psychotropic Substances Act; adding Sections 25/29 of Narcotic Drugs and Psychotropic Substances Act was submitted against five (5) persons including the petitioner and on 19.11.2022, cognizance was taken.

6. On 28.11.2022 the learned Special Judge issued warrant of arrest against the petitioner and another co-accused and fixed 14.02.2023 for production, appearance and E.R. of warrant of arrest.

7. Mr. Pronojit Roy, learned counsel for the petitioner has submitted that the learned Judge, Special Court (under NDPS Act), Jalpaiguri erred in law and that the order passed by the learned Judge, Special Court (under NDPS Act), Jalpaiguri, is otherwise bad and illegal and is liable to be set aside.

8. Mr. Roy has further submitted that it was during the pendency of his application for anticipatory bail that the learned Special Judge issued the warrant of arrest.

9. Hence the revision.

10. From the materials on record it is evident that the petitioner’s prayer for anticipatory bail was rejected on 08.12.2022.

11. Warrant of arrest was issued vide order dated 28.11.2022 by the learned Judge, Special Court (NDPS Act), Jalpaiguri.

12. The Supreme Court in Sushila Aggarwal and Ors. vs State (NCT of Delhi) and Anr., SLP (Criminal) Nos. 7281-7282/2017, on January 29, 2020, laid down the guidelines required to be kept in mind by Courts dealing with applications under Section 438 Cr.P.C.

13. The Supreme Court in Prem Shankar Prasad vs The State of Bihar & Anr., Criminal Appeal No. 1209 of 2021, on October 21, 2021, held:-

“7.3 In the case of State of Madhya Pradesh vs. Pradeep Sharma (Supra), it is observed and held by this court that if anyone is declared as an absconder/proclaimed offender in terms of section 82 of Cr.PC, he is not entitled to relief of anticipatory bail. In paragraph 14 to 16, it is observed and held as under:-

“14. In order to answer the above question, it is desirable to refer to Section 438 of the Code which reads as under:-

“438. Direction for grant of bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a nonbailable offence, he may apply to the High Court or t