Monday, December 18, 2023

Patna High Court seized with NDPS case of 2021, driver Shankar Yadav was to get Rs 15,000, Pritam Lakra worked pro bono

“So true it is that, in every condition of life, the strong man who is guilty saves himself at the expense of the innocent who is weak.”

–Rousseau's Autobiography, Confessions (1782)

In Shankar Yadav and Pritam Lakra v. Union of India through Narcotics Control Bureau, Patna, Bihar  (Criminal Appeal (DB) No.629/2023) against conviction, AO No. 697862/ 2023 was filed on December 1, 2023 by Kumar Sachin, the advocate for the Union of India through the Intelligence Officer. This appeal was filed on June 23, 2023. It was registered on June 25, 2023.

The petitioner's counsel is Ravindra Kumar. The respondent's counsel is Sujit Kumar Singh. Prior to this, supplementary affidavit was filed by Ravindra Kumar on August 8, 2023. This appeal arises out of NDPS Case No. 06 of 2021. 

In his order dated May 09, 2023 in NDPS Case No. 06 of 2021, Virendra Kumar Choubey, Additional District Sessions Judge-VIII, Ara, Bhojpur dealt with the case against four acuused, namely, 1. Shankar Yadav (25)-Sarwaha, Charhi, Hazaribagh, Jharkhand,  2. Pritam Lakra (22)-Taku, Kuddu, Lohardagga, Jharkhand, 3. Nav Kumar Ojha (53)-Pundru, Pindrajora, Bokaro, Jharkhand and  4. Bijendra Kumar Rai (26), Dahiyawa, Chhapra city, Saran, Bihar.

(Notably, the order was passed on the date on which the judge was joining as Additional District and Sessions Judge at Madhepura with Posting Date 09 May, 2023.)

Shankar Yadav, Pritam Lakra and Nav Kumar Ojha were found guilty under Section 20 (B) (ii) (C) and Section 25 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. 

The 84-page long decision of Additional District and Sessions Judge-VIII, Ara, Bhojpur narrates the sequence of events and submissions. 

The above mentioned four accused faced the charge of offences under Section 20 (B) (ii) (C) and Sections 25 and 29 of NDPS Act. The summary of the charges against the accused were narrated and explained. They pleaded not guilty and sought redress.  

At 6 PM, on January 30, 2021, Ram Ayodhya Kumar of NCB, Patna was informed by a reliable source that one truck bearing registration no. JH 09 J 4421 was carrying huge quantity of ganja from Odisha is coming via Ranchi, Daltenganj, Aurangabad, Ara-Chhpara More. Nav Kumar Ojha alias Sadhu, a resident of Bokaro, Jharkhand was accompanying the truck with a white color Scorpio with registration no. JH 09 M 7100. The said drugs was to be delivered to Bijendra Kumar Rai (26), Dahiyawa, Chhapra city, Saran, Bihar on February 2, 2021. This information was written on a note sheet and filed on January 30, 2021 and Rajan Kumar, S,P., N.C.B, Patna was apprised. Following this it was converted into NCB (i) on January 30, 2021. (The seized truck is registered in the name of Bablu Mahto, Bokaro)

Acting on to this unique information, a team was constituted on January 30, 2021. The team comprised of  Ram Ayodhya Kumar, Paramhans Kumar, Raviranjan Kumar, Rakesh Kumar Singh, Sikandar Kumar Singh and Dinesh Kumar, the driver. This team was sent from NCB Office, Patna at 11 AM on January 30, 2021 to Aurangabad. It reached Aurangabad on the same say at 4 PM. NCB team waited for the said truck and the said scorpio all through the night. Following which the team left Aurangbad and started searching for it on the route. The team reached Ara-Chhapra More on February 1, 2021 around 7 PM and started waiting for these vehicles. The said truck was sighted at 4.30 on February 2, 2021. It was stopped in the presence of two independent witnesses, namely, Prince Kumar and Luv Singh. The driver identified himself as Shankar Yadav. The other person sitting in the truck was identified as Pritam Lakra. Both admitted that ganja is hidden in the truck. Shankar Yadav disclosed that the consignment was meant to be delivered to Bijendra Kumar Rai. They also disclosed that Nav Kumar Ojha accompanied the truck from Ranch till Aurangabad after which he left for Chhapra. Bijendra Kumar Rai was nabbed at his home in Dahiyawa on February 2, 2021 and Nav Kumar Ojha was caught with his scorpio from Lalita Hotel, Chhapra. Shankar Yadav was given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and admitted that he is involved in the smuggling of ganja. He revealed that acting on the instructions of Nav Kumar Ojha, he and Pritam Lakra went to Koraput, Odisha and from there they brought the ganja to Bihar. At the conclusion of this work, Shankar Yadav was to get Rs 15, 000.

Pritam Lakra was given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and admitted that he is involved in the smuggling of ganja. He revealed that acting on the instructions of Nav Kumar Ojha, he and Shankar Yadav went to Koraput, Odisha and from there they brought the ganja to Bihar.  

From the perusal of the decision of Additional District and Sessions Judge-VIII, Ara, Bhojpur, it emerges that Pritam Lakra was working pro bono.         

Bijendra Kumar Rai was also given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and admitted that he is involved in the smuggling of ganja. He revealed that he had placed an order for sending 9 quintal of ganja to Sundar Rao. Sundar Rao had agreed to give it at the rate of Rs 1200/kg. Following which he contacted Nav Kumar Ojha and asked him to bring the ganja from Odhisa to Chhapra. For this work he promised a sum of Rs 5 lakh. Nav Kumar Ojha agreed with this offer. He left Shankar Yadav and Pritam Lakra in Odisha on his scorpio on January 25, 2021 and instructed them to bring the ganja laden truck to Bihar. After that Nav Kumar Ojha kept giving location of the truck to Bijendra Kumar Rai. Bijendra Kumar Rai met Nav Kumar Ojha on the evening of February 1, 2021 near Lalita Hotel.      

Nav Kumar Ojha was given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and admitted that he is involved in the smuggling of ganja. He informed that he had left Shankar Yadav and Pritam Lakra in Odisha on his scorpio on January 25, 2021 and instructed them to bring the ganja laden truck to Bihar. He informed that he accompanied the ganja laden vehicle from Ranchi to Aurangabad. After that he left for Chhapra on February 1, 2021 where he stayed in Lalita Hotel.   

It is written in the Pariwaad Patra that on the basis of the statement of these four persons, the investigating officer believed that under Section 20 (B) (ii) (C) and Sections 25 and 29 of NDPS Act read with Section 8 (C) of the NDPS Act, they have committed the offence of violating these provisions of the law. Therefore, Shankar Yadav (25) was arrested at 6 PM on February 2, 2021. Pritam Lakra (22) was arrested at 6.30 PM on February 2, 2021. Bijendra Kumar Rai (26) was arrested at 10 PM on February 2, 2021. Nav Kumar Ojha (53) was arrested at 7 PM on February 2, 2021. Their Jama Talashi (the report about the recovery of any belongings) was done on February 2, 2021 at 6.10 PM, 6.40 PM, 10.10 PM and 7.10 PM respectively. 

On February 3, 2021, these four accused persons were subjected to medical examination at primar health centre, Ara, Bhojpur. No injury was found on their body and they were found physically and mentally fit. 

On February 3, 2021, an application was given to District and Sessions Judge, Ara, Bhojpur for praying for the judicial custody of the accused Shankar Yadav and Pritam Lakra. Following which they were taken into judicial custody and sent to sub-prison Daudnagar, Aurangabad.   

On February 3, 2021 itself, an application was given to District and Sessions Judge, Ara, Bhojpur praying for the remand of Bijendra Kumar Rai and Nav Kumar Ojha by NCB for two days. This was accepted by the court. 

On February 4, 2021, Bijendra Kumar Rai informed in his statement that out of the 909.2 quintal, five quintal belonged to Sundar Rao and 4 quintal belonged to Damu. 

On February 5, 2021, a letter was sent to NCB, Ranchi Sub-zone for the inspection of the houses of Shankar Yadav, Pritam Lakra and Nav Kumar Ojha. The latter responded by their letter dated February 16, 2021, February 19, 2021 and April 5, 2021 with regard to house inspection of Nav Kumar Ojha, Pritam Lakra and Shankar Yadav respectively. During inspection soem documents were recovered from the houses of Nav Kumar Ojha and Shankar Yadav.      

On February 5, 2021, Bijendra Kumar Rai and Nav Kumar Ojha were subjected to medical examination at primar health centre, Koilwar, Bhojpur. No injury was found on their body and they were found physically and mentally fit.   

It is written in the Pariwaad Patra that on February 5, 2021, an application was given to District and Sessions Judge, Ara, Bhojpur praying for the judicial custody of Bijendra Kumar Rai and Nav Kumar Ojha. Following which they were taken into judicial custody and sent to sub-prison Daudnagar, Aurangabad.   

It is written in the Pariwaad Patra that on February 5, 2021, District and Sessions Judge, Ara, Bhojpur granted permission for taking nine samples of the confiscated drugs and for depositing the seized vehicles at Koilwar police station on an application in ths regard and Ranjita Kumari, first class judicial magistrate  was appointed to certify the veracity of the inventory of the seized goods. She certified it on March 10, 2021.

It is written in the Pariwaad Patra that Nav Kumar Ojha has a case against him under Sections 324, 325 and 34 of Indian Penal Code since October 23, 1990 in Pindrajora thana. 

It is written in the Pariwaad Patra that Poonam Lakra, w/o James Lakra was sent a notice but no reply was recieved. The mobile number -9155476621 which Nav Kumar Ojha was using was registered in the name of Poonam Lakra. Bijendra Kumar Rai was using mobile number 8340293420, registered in his own name. The mobile number 8480462693 which Shankar Yadav was using was registered in the name of Ravindra Kumar Sethi, resident of Suwarnapur, Ganjam, Odisha. Bijendra Kumar Rai was using amobile number 8797118261 was registered in the name of Kanti Devi, Doriganj, Saran, Bihar. Damu was using amobile number 8480332458 which was registered in the name of Dhanpat Visoi, Koraput, Odisha. Sundar Rao was using a mobil enumber-7846987733 which was registered in the name of Duryodhan Nayak, Koraput, Odisha. Pritam Lakra was using a mobile number 7326823429 which was registered in the name of Nav Kumar Ojha....Sundar Rao was connected only with Bijendra Kumar Rai.  

The accused persons disputed the evidence given by seven witnesses-Paramhans Kumar, Prine Kumar, Luv Singh, Vinod Kumar, Ram Ayodhya Singh, Anil Kumaraand Rajan Kumar-against them. The accused claimed to be innocent. No evidence was produced on behalf of the accused.  

The court considered three questions:

1. Did all the accused together with co-accused indulge in sale-purchase-transport of commercial amount of 909.2 kg of ganja on truck number-JH 09 J4421 under their possession at 4.30 PM on February 2. 2021 at Ara-Chhapra More without valid permission or rightful permit?

2. Did accused Nav Kumar Ojha provide truck number-JH 09 J4421 which is under his ownership and control for transport of 909.2 kg of ganja at the above mentioned date, time and place?   

3.  Did accused Bijendra Kumar Rai and Nav Kumar Ojha together with Pritam Lakra and Shankaf Yadav participated in criminal conspiracy to knowingly indulge in smuggling of drugs-illegal ganja?

The court examined first two questions together. It did not find positive answer with regard to the third question.  

The order dwells on Section 8 (c) of NDPS Act which deal with "prohibition of certain operations". This provision reads, "No person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: 1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"

Section 20 (B) deals with the punishment for contravention in relation to cannabis plant and cannabis. Section 20 (B) (ii) (C) reads: Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—where such contravention relates to sub-clause (b),—and involves commercial quantity, 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 rupees 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.]

Section 25 deals with the "Punishment for allowing premises, etc., to be used for commission of an offence". It reads: "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."

The decision of the Additional District and Sessions Judge-VIII, Ara, Bhojpur did not find sufficient evidence of criminal conspiracy against three accused persons. Therefore, he exonerated them of offence under Section 29 of the NDPS Act.  

Section 29 of the Act deal with "Punishment for abetment and criminal conspiracy" It reads:—(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 (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 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.

Granting benefit of doubt with regard to accusations under Section 20 (B) (ii), (C) and Sections 25 and 29 of NDPS Act, he acquitted Bijendra Kumar Rai and released him from judicial custody. 

In the concluding sentence of his 84 page long judgement dated May 9, 2023, Virendra Kumar Choubey, Additional District and Sessions Judge-VIII fixed May 17, 2023 for hearing on the point of sentencing, eight days after his date of posting-May 9, 2023-as Additional District and Sessions Judge-I, Madhepura.  

In the sentencing order dated May 17, 2023, Virendra Kumar Choubey, Additional District and Sessions Judge-VIII has recorded that the lawyer of the accused submitted that this is the first crime of the accused and he was not involved knowingly in the offence. But the judge sentenced Shankar Yadav, Pritam Lakra and Nav Kumar Ojha of 15 years of rigorous imprisonment and fine of Rs 1 lakh. In case the fine is not submitted, the convicts will have to remain in prison for another six months.     


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