VIJAY KUMAR GANJU Vs. NARKOTICS CONTROL BOREAU

JUDGEMENT

(1.) In this revision petition filed by Shri Vijay Kumar Ganju, one of the accused, the order passed by Shri S.L. Khanna, Addl. Sessions Judge on 8.10.1991 whereby he has ordered framing of charges under Section 29 read with Sections 21 and 23 of the Narcotics Drugs and Psychotropic Substances Act, 1985 has been challenged. As per the prosecution case, during the period July 1987 to November 21,1987, this petitioner, Vijay Kumar Ganju, along with other accused Gurbux Anandram Bhiryani, Rajni Kant Jeevanlal Patel, Vipin Jaggi and Jasbir Singh entered into a criminal conspiracy at New Delhi and Bombay to export heroin to U.S.A. and to sell it there.

(2.) Statement of this petitioner was recorded under Section 67 of the Narcotics Drugs and Psychotropic Substances Act, 1985 after his arrest on lstJune,1988, and according to the prosecution he stated that Gurbux Biryani was known to him for the last 20 years as both used to live in Old Rajinder Nagar,New Delhi and either in late 1973 or early 1974 he met Mr. Biryani at his house in Bandra,Bombay and expressed his desire to work for him. He was employed in carpet business and his job was to bring foreign buyers. He left his job for some time and joined him again in June,1986. This time he used to deliver video cassettes to customers on hire. In the month of January/February he was asked by Gurbux Biryani to attend to his phone calls in his absence and he used to get telephone calls mostly from Jasbir Singh alias Jassi, Surinder Mehta, Y. Kumar, Billa (Sardarji) all from Delhi, and Mr. Rajni Bhai Patcl, Nana Bhai, Samani, Narinder Bishnoi all from Bombay. On or around 8th October,1987 on the instructions of Gurbux Biryani he contacted Hansmukh Parekh in USA and told him that he should deliver $ 1000 to Mr. Gala who was staying in Hotel President on account of Mr. Biryani. Again in November,1987 on the instructions of Mr. Biryani he rang up Jasbir Singh in Delhi and told him that one consignment of heroin was lying with Mr. H.S. Gala,who was staying in Hotel President,Ncw York and that therefore Mr. Jasbir Singh should send his buyer to Mr. H.S. Gala. He was asked by Gurbux Biryani to tell Jassi that Jassi's buyer should approach H.S. Gala as "Johney a friend ofKaka" in order to collect two packets of "Bounty" and "Kraft" which contained heroin. He accordingly conveyed that message to Jasbir Singh in Delhi. In the last week of November 1987 he passed on a message on the instructions of Gurbux Biryani to Jasbir Singh that Gala and others who had carried heroin to New York had been arrested in New York and after this for some time Mr. Biryani went underground. He further stated that apart from this deal there had been four more deals of heroin which took place in USA and as per Biryani's instructions he had been passing and receiving messages relating to heroin on phone using the code word shirts for heroin and that one shirt meant one gram of heroin.

(3.) Learned counsel for the. petitioner, Mr. Sud argued that the only statement alleged to have been recorded of Mr. Ganju, present petitioner, stands retracted at the first available opportunity when he was produced before the Magistrate for the purpose of remand. He also sent a petition to the court for medical examination as he was allegedly given beatings by the officers of the NCB. It is alleged that the statement was recorded under pressure and force. According to the learned counsel, this statement of Vijay Kumar Ganju was not put to Mr. Biryani when he appeared nor Mr. Jasbir Singh or other persons were confronted with this statement. He submitted that no conviction can be based on the solitary retracted statement of the petitioner and,therefore, the charge has been wrongly framed against him. There is no other statement or material in the form of a document or article recovered from or at the instance of the petitioner or any other person to connect him with Gurbux Biryani or his business or said parlour and in fact, no investigation seems to have been made or the same has been concealed as adverse results must have been yielded. There is no material at all to make out a case of conspiracy against the petitioner. There is no evidence that the petitioner ever rang up Jasbir Singh at Delhi to pass on the alleged message of Biryani. There was no recovery of any chit,or diary bearing the name or telephone number of Jasbir Singh from the petitioner, or from the shop of Biryani or from Biryani. According to the learned counsel there is total lack of evidence against the petitioner. There is no chance of the case ending in conviction even if the entire evidence of the prosecution goes unrebutted.