JUDGMENT

Usha Mehra, J. - 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, Jasbir Singh @ Juggi 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 Patel and Pandey, read with the report received from New York, the petitioner has been charged under Sections 23/29 of The Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter called as 'N.D.P.S.' Act).

So far as Yogesh Natwar Lal Pandey is concerned, he has since expired. So far as Vijay Kumar Ganju and Jasbir Singh @ Jassi and Vipin Jaggi are concerned, they have already been granted bail.

The charge against the petitioner primarily is that he conspired and abetted in the export of the heroin from Ind1atoNew York which was carried by Mr. H.S. Gala. The two consignments weighed 2.75 Kg. and 1.05 Kg. respectively.

The present bail application has been sought inter-alia on the grol1nd tI1at 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 Section 29 and 23 of the said Act. Sections are reproduced as under:

"Section 29: Punishment for abetment and criminal conspiracy:

(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 licence or permit granted or certificate or authorisation issued thereunder, imports into India or exports from India or tranships any Narcotic Drug or psychotropic substance sh