In the matter concerning conviction of Shankar Yadav and Pritam Lakra,
Patna High Court's Division Bench of Justices Ashutosh Kumar and A.
Abhishek Reddy admitted the Criminal Appeal (DB)No.629 of 2023 in a case
arising out of PS. Case No.-1 of 2021 in NCB Thana (Government
Official), Bhojpur on February 22, 2024. The case was filed on June 23,
2023 and registered on June 25, 2023. Ravindra Kumar and Dr. Gopal Krishna are counsels for Shankar Yadav and Pritam Lakra respectively.
This appeal is against the judgment of conviction and
order of sentence dated May 9, 2023/May 17, 2023, passed in N.D.P.S.
Case No. 06 of 2021, arising out of N.C.B. Case No. 01 of 2021 by
Virendra Kumar Choubey, the Additional Sessions Judge-VIII, Bhojpur at
Ara, whereby the appellants have been convicted for the offence under
Sections 20(b)(ii)(C) and 25 of the N.D.P.S. Act, 1985. The Court called
for the Trial Court Records.
Notably,
one of the four accused, Bijendra Kumar Rai, the main accused from
Dahiyawa, Chhapra, Saran, Bihar was released by the judgment dated May
9, 2023 authored by the Additional Sessions Judge-VIII, Bhojpur. The
remaining three who are residents of Jharkhand have been convicted. They
are: Nav Kumar Ojha, the owner of the truck from Pundru thana,
Hazaribagh, Shankar Yadav, the driver of the truck from Sarwaha thana,
Hazaribagh, and Pritam Lakra, the helper from Kuddu, Lohardagga. It is
noteworthy that 909.2 kg of Ganja was seized from Truck No. JH09J4421
and 50 kg Ganja from Sumo 407 on February 2, 2021 besides a Scorpio Car
No. JH09M7100 at Koilwar Police Station, Bhojpur.
Significantly,
the written complaint was filed on July 28, 2021 and the F.I.R. was
lodged on July 28, 2021. The charge sheet was filed on July 28, 2021.
The seizure happened pursuant to inputs from Anil Kumar, the informant,
an Intelligence Officer. Out of the six witnesses named in the charge
sheet four are members of the raiding team. They are Ramayodhya Kumar,
Vinod Kumar, Paramhans Kumar, Anil and Kumar. The other two witnesses
are Prince Kumar and Lav Singh who are also named as witnesses in
seizure and complaint. Both have signed as witnesses. It is apparent
that Anil Kumar, the informant who was a member of the raiding team is
also the Investigating Officer in the case. The trial had commenced on
February 4, 2022. The evidence was closed on November 21, 2022. Dinesh
Ram and Ranjit Kumar were examined as witnesses by the defense.
It
is noteworthy that the judgement of the Additional Sessions Judge-VIII,
Bhojpur has not found the three accused, namely, Nav Kumar Ojha, the
owner of the truck from Pundru thana, Hazaribagh, Shankar Yadav, the
driver of the truck from Sarwaha thana, Hazaribagh, and Pritam Lakra,
the helper from Kuddu, Lohardagga to be guilty of offences under Section
29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.
But they have been found guilty of offences under Section 20 (b) (ii)
(C) and Section 25.
Section
20 (b) (ii) (C) of the NDPS Act was substituted by the Narcotic Drugs
And Psychotropic Substances (Amendment) Act, 2001 with effect from
October 2, 2001. There were over 40 amendments made in the original NDPS
Act, supposedly to address certain obligations specially in respect of
the concept of ‘controlled delivery’ arising from the UN Convention
against Illicit Traffic in Narcotic Drugs andPsychotropic Substances
1988 to which India is one of the 87 signatories out of 192 parties
since March 27, 1990. Prior to that India amended the NDPS Act for the
first time in 1989. The UN Convention came into force on November 11,
1990, in accordance with Article 29(1) of the Convention. The NDPS Act
was amended in 2014 as well. Some 25 amendments were made under the 2014
legislation.
Section 20
of the NDPS Act deals with punishment for contravention in relation to
cannabis plants and cannabis. It states that "Whoever, in contravention
of any provision of this Act or any rule or order made or condition of
licence granted thereunder,—(a) cultivates any cannabis plant; or (b)
produces, manufactures, possesses, sells, purchases, transports, imports
inter-State, exports inter-State or uses cannabis, shall be
punishable..." Section 20 (ii) B of the NDPS Act states that where such
contravention relates to sub-clause (b) and involves quantity lesser
than commercial quantity but greater than small quantity, with rigorous
imprisonment for a term which may extend to ten years, and with fine
which may extend to one lakh rupees. Section 20 (ii) (C) states that
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.
A careful perusal of the
judgement of the reveals that Pritam Lakra, the helper of the truck is
not covered under the ambit of Section 20 (ii) (b) and (C) of the NDPS Act
because there is nothing on record to show that he is a cultivator of
any cannabis plant or producer, manufacturer, possessor, seller,
purchaser, transporter, inter-State importer, inter-State exporter or
user of cannabis. It is apparent that the Additional Sessions
Judge-VIII, Bhojpur committed an error in convicting him under Section
20 (ii) (b) and (C) of the NDPS Act.
Section
25 of NDPS Act deals with the punishment for allowing premises, etc.,
to be used for commission of an offence. It states that "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." This provision too was substituted by the
Narcotic Drugs And Psychotropic Substances (Amendment) Act, 2001 with
effect from October 2, 2001.
A
bare reading of Section 25 of NDPS Act shows that Pritam Lakra,
the helper of the truck in question is not covered under the ambit of
Section 25. It seems that the Additional Sessions Judge-VIII, Bhojpur
committed an error in convicting him under Section 25.
The
judgement of Virendra Kumar Choubey, the Additional Sessions
Judge-VIII, Bhojpur does not find that he deserved punishment for
abetment and criminal conspiracy under Section 29 of the NDPS Act.
Section 29 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."
Admittedly,
Pritam Lakra was not involved in any conspiracy. If he was not involved
in conspiracy, he has no role in the offence in question and he is not a
beneficiary of any sort, how can he be deemed guilty under Section 20 (ii)
(b) and (C) and Section 25 of the NDPS Act.
In
this backdrop, the High Court's order of February 22, 2024 assumes huge
significance. It reads: "Since a prayer for suspension of has sentence
been made in the memo of appeal, Mr. Sujit Kumar Singh, the learned APP
shall put in the written objection by the next date. Re-notify this
appeal on receipt of the Trial Court Records on 4th of April, 2024." The
order was authored by Justice Ashutosh Kumar. The next listing date for
hearing is April 4, 2024.
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