Gurbax Bhilyani vs Narcotic Control Bureau
1992 Latest Caselaw 476 Del

JUDGMENT

Usha Mehra, J.

(1) Narcotic Control Bureau (hereinafter called as 'NCB') received a report from Us Dea officials pursuance to which investigation of the case was started by the Ncb on 21st November, 1987. During investigation the complicity of the petitioner and his co- accused Rajnikant Jeevan Lal Patel, Yogesh Natwarlal Pandey,Vijay Kumar Ganju, Jashbir Singh @ Jaggi and Vipin Jaggi came to light. Jeevan Lal Patel and Yogesh Natwar Lal Pandey were apprehended by the investigating official of the N.C.B. They made confessional statements implicating the petitioner that the alleged two seized consignments of heroin were actually exported by the petitioner with their help to New york, through Mr. H.S. Gala and Mrs. Manjula Ben. On the basis of this confessional statement made by Mr. Patel and Mr. Pandey, the petitioner was arrested at Bombay under the Cofeposa Act on 26th May, 1988. He was brought to Delhi in the intervening night of 26th May and 27th May, 1988 and at Delhi he was kept in 'Ranjit' Hotel in the office of N.C.B. till 28th May, 1988. During this period, the petitioner made a confessional statement. On the basis of this confessional statement as well as of the co-accused Petal and Pandey, read with the report received from New York, the petitioner has been charged under Sections 23/29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'N.D.P.S.' Act).

(2) The charge against the petitioner primarily is that he conspired and abetted in the export of the heroin from India to New York which was carried by Mr. H.S. Gala. The two consignments weighed 2.75 Kg. and 1.05 Kg. respectively.

(3) The present bail application has been sought inter-alia on the round that the prosecution has not laid down any foundation for the offence of the conspiracy as stipulated under Section 29 of the N.D.P.S. Act nor there is any evidence prima facie to prove that the petitioner exported the said two consignments out of India. Therefore, neither the provisions of Section 29 nor Section 23 are applicable to the facts of this case. In order to appreciate the contention of Mr. R.L. Mehta, advocate for the petitioner, we have to know what is provided under Sections are reproduced as under: "SECTION29: Punishment For Abetment And Criminal CONSPIR- ACY:- (1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in Section 116 of the Indian Penal Code, 1860 (45 of 1860) be punishable with the punishment provided for the offence. (2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India, abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which- (a) would constitute an offence if committed within India; or (b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.' Section 23; Punishment For Illegal Import Into India, Export From India Or Transhipment Of Narcotic Drugs And Psychotropic SUBSTANCES; Whoever, in contravention of any provision of this Act or any rule or order made or condition of license or permit granted or certificate or authorisation issued there under, imports into India or exports from india or transships any narcotic drug or psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty.years and shall also be liable to fine which shall not be less than one lakh rupee but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

(4) Mr. Mehta drew my attention to the complaint filed by the N.C.B. before the trial court and contended that it is nowhere the case of the N.C.B. that the petitioner either abetted or conspired with the said Mr. Gala for the export of this heroin from out of India. According to the N.C.B's own showing the conspiracy was hatchet between the petitioner.

(5) Mr. Yogesh Natwar Lal Pandey, Mr. Paid and Mr. Ganju. The name of Mr. Gala no where figure in this conspiracy. As per respondents own case consignment was seized from Mr. Gala, hence it it is for N.C.B. to prove that petitioner conspired with him or abetted him in . any manner. The averments of the respondent will not constitute conspiracy as stipulated under Section 29 of the Act. Morever, the export out of India was also not done by the petitioner. In order to attract the provisions of Section 23 N.C.B. has to prove that it was the petitioner who actually took out those two consignments. To arrive at this conclusion reference can be had to the definition given to the word 'To export from India' under Clause XXVI which is reproduced as under: CLAUSE:XXVI; "To export from India", with its grammatical variations and cognate expressions, means to take out of India to a place outside India. It is not the case of the prosecution that the petitioner look out the two consignments of heroin from India. It is prosecution's own case that these two consignments were carried by Mr. Gala from India to New York. Therefore, the provisions of Section 23 read with Section 2 Clause Xxvi are not applicable to the facts of this case. Mr. Mehta further contended that the confessional statement of Mr. Patel and Mr. Pandey were extracted by the respondent under coercion and pressure on 23rd March, 1988. On the first available opportunity i.e. 24th March, 1988 those two co accused retracted their statements slating therein that they were forced to make the said statement by the respondent's officials. The said confessional statement was not voluntary. Similarly, the alleged confessional statement of the petitioner was obtained by the respondent's officials under pressure. Mr. Mehta pointed out that the petitioner was brought to Delhi from Bombay in the intervening night of 26th May, 1988 and 27th May, 1988. He was kept under the custody of the respondent till 28th May, 1988 and during this period of his custody under the respondent that the alleged confessional statement of the petitioner was obtained which, petitioner retracted when produced before the Magistrate on 28th May, 1988 at 9.00 P.M. It was at the first available opportunity he retracted this unvoluntary confession extracted from him. Hence except these alleged unvoluntary connfessional statements, there is no other prima facie evidence available with the respondent to link the petitioner with those two consignments which are alleged to have been confiscated at New York. N.C.B. has to lay the foundation to connect the said heroin alleged to have been seized in America with the present case. Since these statements were not voluntary therefore these are not admissible in evidence. Except petitioners alleged confession, there is no other link to connect the petitioner to the export of the heroin to America.Mr. R.D.Gupta has been adduced as Public Witness I by the respondents. He had been associated in the investigation of this case right from the beginning. His evidence would show his ignorance about the seizure of the consignments in New York, He in his testimony has not been able to link the petitioner with the seized heroin.

(6) Mr. Mehta further contended that the prosecution is taking shelter under the confessional statements of the petitioner and his coaccused. This confessional statement by itself cannot make the petitioner guilty. In fact the prosecution has failed to prove the _. ingredient of the offence that is the Corpus Delicti. It the absence of Corpus Delicti or corroborative evidence, mere confession of the petitioner which was retracted on the first available opportunity, the petitioner cannot be held guilty. In this regard, he has placed reliance on the decision of the Supreme Court in the case of Ram Chandra and another Vs. State of Uttar Pradesh reported in A.I.R. 1975 S.C. 381 where the Supreme Court observed that, "in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable. But the question before us is whether the confession by the alleged murderer, by itsell, and without more is enough as a matter of prudence, if not of law, to base a conviction for murder thereupon. Normally speaking it would not be quite safe to do so, though we do not wish to lay it down as a matter of law." Mr. Mehta relying on these observations contended that the prosecution in this case has not laid any foundation, what to talk of reliable evidence directly or circumstantial which could link even remotely the petitioner with the alleged offence. It fact no ingredient, of the offence of conspiracy, abetment or of export out of India have been placed on the record of the Court. Therefore, in the absence of corpus delicti or any corroborative evidence, directly or circumstantial having been placed on record, the petitioner cannot be held guilty.

(7) Mr. R.L. Mehta, further contended that alleged confession of the petitioner has since been retracted at the first available opportunity. Hence, no reliance can be placed on the same. The confession of an accused per se is no evidence in the ordinary sense of the term. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If is is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. The confession can be used to lend assurance to the other evidence but in this case except the confession, there is no other evidence. To support his argument, he placed reliance on the decision of Supreme Court in the case of Chandra Kant Chiman Lal Desai Vs. State of Gujarat reported in 1992(1) Crimes page 232. Mr. Mehta further contended that the confession of coaccused can only be taken into consideration but it is not in itself a substantive evidence. Moroever, the petitioner's confession when he was in the custody of the respondent cannot be relied upon because it is not proper. He further contended that the Court while granting bail can certainly consider the charge levelled and the attendant facts including such police report which it may consider proper. The Court is also entitled to look at the facts stated for bail and the ground of opposition made by the prosecution in opposing the bail and while appreciating the same, the Court may consider whether there are reasonable founds for believing that the accused is not a guilty or guilty. But while considering the reasonable founds for bail, the Court has also to bear in mind, the presumption of innocence in favor of the accused. That presumption is a legal presumption and has to be rebutted by some materials or other if its effects is to be denied. This presumption is not only for the trial but also for the purpose of granting or refusing the bail. Therefore, at this stage, when except the alleged confessional statement, there is nothing on record to link the petitioner with the export of the heroin or with the conspiracy the presumption of innocence of the petitioner should be assumed as there is nothing to rebut the same.

(8) On the other hand, Mr. J.S. Arora appearing for the N.C.B. contended that two consignments of herein were seized in New York and report of the same has been received. This report coupled with the confessional statement is sufficient to link the petitioner with the export of these consignments through Mr. Gala and hence the case is prima-facie made out against the petitioner. According to Mr. Arora confessional statement itself is sufficient to implicate the petitioner and verdict of guilt can be given. There is no need to corroborate the confessional statement. To support his argument, he has placed reliance on the decision of the Supreme Court in the case of Madan Gopal Kakkad Vs. naval Dubey and another reported in Judgments Today 1992(3) S.C. page 270. In this case the Supreme Court opined that conviction can be based on extra judicial confession particularly when the said confession is not made by corecion, promise of favor or false hope etc. That was a case under Section 375 and 376 Indian Penal Code and the accused therein made extrajudicial confession which was taken into account coupled with the other evidence available on the record. Therefore, Mr. Arora contended that the confession of the petitioner as well of his co-accused are sufficient to prove the guilt of the petitioner. Moreover, petitioner's first two bail applications have already been rejected by this Court and once in appeal by Supreme Court, no new ground has been raised.

(9) Mr. Mehta contended that the decisions in the case of Madan Gopal Kakkad Vs. Naval Kumar Dubey (supra) is not applicable to the facts of this case because of obvious reason. In this case neither the confession of the petitioner nor of the co-accused was voluntary. It was obtained under coercion and pressure, therefore, cannot be the basis of conviction. Moreover, it was retracted immediately on the first available opportunity. Secondly in the case of Madan Gopal Kakkad, besides the extra judicial confession, there was statement of the prosecutrix and other witnesses. Admittedly, the law does not require that the evidence of the extrajudicial confession should in all cases be corroborated. In the case of Madan Gopal Kakkad the confession of the accused was corroborated by the evidence of the victim whose testimony in turn was corroborated by other witnesses and also by medical evidence. It was in this background Supreme Court held that the extra judicial confession of the accused was admissible. But in this case it cannot be said that the confession was not under pressure or coercion. It was in the custody of the official of the N.C.B. Therefore, it cannot be called voluntary confession. Moroever, the petitioner was arrested in May, 1988 and had been on interim bail on various occasions which he has not misused. Litigation is prolonged considerably. Mr. Mehta rebutting the arguments of Mr. Arora contended that he filed the first bail application when the full facts had not come on record nor evidence had been recorded. The second bail he. sought because of the delay in disposal of the case. That application was rejected by the learned Single Judge of this Court justifying the delay. Against that order petitioner went to Supreme Court but the Supreme Court dismissed the appeal. He never challenged the order of this Court on merit before the Supreme Court. In between the said order and this application, much water has flown and evidence of the 1.0. Mr. R.D. Gupta has also been recorded, and therefore, in view of these changed circumstances, he has sought this bail on merits.

(10) I have heard the contentions raised by Mr. R.L. Mehta as well asofMr.J.S. Arora. At this stage, I would not like to deal with these contentions because that would effect the case on merits. I would rather refrain from expressing any opinion on the points dealt by Mr. Mehta. Suffice it to say that taking into consideration the facts and circumstances of this case, I consider this to be a fit case for granting bail particularly when the alleged co- conspirator Mr. V.K. Ganju has already been released on bail. Petitioner be released on bail on his furnishing a bond of Rs. 2,00,000.00 (Rupees two lakhs) with two sureties in the like amount subject to the satisfaction of the Trial Court.