VIJAY KUMAR GANJU Vs. N C B

JUDGEMENT

(1.) This is bail application by Vijay Kumar Ganju, petitioner, in the case under Sections 21, 23 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The gist of the prosecution case against the petitioner is that he abetted or was a party to the criminal conspiracy to commit the offence of arranging sale of 3 kgs. of heroin in U.S.A. which had been exported in pursuance of the conspiracy by his co-accused Gurbax Bhiryani. The petitioner was employed at the office of his co-accused Gurbax Bhiryani situated at the residential house of Bhiryani in Bandra, Bombay. Among others, it is alleged that the petitioner on or about October 8, 1987 on the instructions of Gurbax Bhiryani, co-accused (who is the kingpin of the case and indulged in export and sale of heroin in U.S.A) contacted his co-accused Harmukh Parekh in U.S.A. The petitioner told Parekh that he should deliver 1000 dollars to the other co-accused H.S. Gala who was staying in the Hotel President in New Yolk on account of Bhiryani. The other main allegation against the petitioner is that in November, 1987 on the instructions of Bhiryani he rang up co-accused Jasbir Singh alias Jassi in Delhi and told him that one consignment of heroin was lying with H.S. Gala who was staying in Hotel President, New York and that Jasbir should send his buyer to Gala. The petitioner also told Jasbir Singh that the buyer should approach Gala as Johny, a friend of Kaka, in order to collect two packets of Bounty and Craft (code words) which contain heroin. The petitioner also informed Jasbir Singh it the last week of November, 1987 on the instructions of Bhiryani to a pass a message to Jasbir Singh at Delhi that Gala and others who had carried heroin to New York has been arrested in New York. The prosecution mainly relies on the statement of the petitioner himself as recorded under Section 108 of the Customs Act and Section 67 of the NDPS Act making the aforesaid disclosure. The petitioner is also alleged to have stated in addition to the above that apart from the said deal there had been four more deals of heroin which took place in U.S.A. and as per Bhiryanis instructions he had been passing and receiving messages relating to advance on telephone using the code word Shirts for heroin and that one shirt meant for 1 gm. of heroin.

(2.) Mr. K.K. Sud. learned Counsel for the petitioner, submitted that the entire evidence of the prosecution against the petitioner is the alleged said confessional statement of the petitioner that the petitioner did not give any such statement. The petitioner was tortured and was made to write and sign the statement as dictated by the N.D.P.S., officer. The same was retracted by the petitioner on the very next day of June 1, 1988 on which date the statement purports to have been made by the petitioner, Mr. Sud took me through some other material as produced by the prosecution and submitted that from the case of the prosecution in as stated para 2(iii) itself it would appear that Jasbir Singh already knew that H.S. Gala was staying in Hotel President, New York at the relevant time, as also that Gala was to be approached by the buyer giving his name as Johny, friend of Kaka, and that the two packets of heroin were to be collected under the code word Bounty and Craft. It was submitted that under these circumstances there was no need for Gurbax Bhiryani to give the aforesaid instructions to the petitioner to convey the said message on his behalf to Jasbir Singh and that thus, the entire version of the prosecution as against the present petitioner is a concocted one and he has been falsely implicated in the case. It was also submitted that conviction could not be based against the petitioner on the sole basis of this said retracted confessional statement and, particularly in view of the circumstances as explained above.

(3.) Mr. J.S. Arora, learned Counsel for the NCB, repudiated the above submissions of Mr. Sud. It was submitted that there is no evidence on the record that Jasbir Singh alias Jassi Knew as to where Gala was staying and this information was passed on to Jassi only by the petitioner on instructions of Gurbax Bhiryani and that in any case even if Jassi knew the same already Gurbax Bhiryani might have thought it necessary to convey the same again to Jassi through the petitioner to be very sure about that Mr. Arora also referred to some other material on the record in support of his submission that there was material to corroborote the case of the prosecution against the petitioner. It was submitted that the statement of the petitioner as recorded under Section 108 of the Customs Act and under Section 67 of the N.D.P.S. Act was his voluntary statement and the retraction there of was an afterthought on the part on the petitioner.