Wednesday, February 28, 2024

Prayer for suspension of conviction of Shankar Yadav, Pritam Lakra admitted in Patna High Court

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 was 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 (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 (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 (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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