Criminal appeal of Jharkhand residents in NDPS case related to 9 quintals of ganja is before the High Court

A criminal appeal filed on June 23, 2023 related to the conviction of two out of the three residents of Jharkhand, namely, Shankar Yadav, driver of a truck and Pritam Lakra, the Khalasi (helper) who have been found guilty of offences under Section 20 (b) (ii) (C) and Section 25 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 came up for hearing before Patna High Court's bench of Justices Ashutosh Kumar and Khatim Reza. on April 4, 2024. Shankar Yadav and Pritam Lakra are incarcerated in Buxar jail. 

The owner of the truck which carried the ganja, Nav Kumar Ojha, the third convict is languishing in the Buxer jail without the benefit of legal representation due to extreme poverty. 

Notably, there were four accused in this NDPS case. Bijendra Kumar Rai (26), Dahiyawa, Chhapra city, Saran, Bihar, fourth one, was acquitted by Virendra Kumar Choubey, Additional District Sessions Judge-VIII, Ara on May 09, 2023 in NDPS Case No. 06 of 2021. 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, a resident of Bihar and released him from judicial custody.

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

Notably, Bijendra Kumar Rai was given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021. In his statement, he had 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 who 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. The story of 9 quintal of ganja will remain incomplete without factoring in the role of Bijendra Kumar Rai .            

Prior to this on February 22, 2024 the Court had passed an order saying, "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. 

Meanwhile, Trial Court Record was received by the High Court on April 2, 2024 via letter dated March 30, 2024 from Additional Session Judge VIII in compliance with the Court's order dated February 22, 2024. The counsels for petitioners are: Ravindar Kumar, Rajesh Roy and Gopal Krishna. The counsels for the respondents are: Sujit Kumar Singh, Krishna Nandan Singh, Kumar Sachin and Bindhyachal Rai. 

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

When the matter came before the bench on April 4, 2024, Bindhyachal Rai, the counsel for the Union of India through the Intelligence Officer sought "three weeks’ time to put in the written response against the prayer for suspension of sentence of the appellants during the pendency of this appeal." The Order reads: "Let that be done positively by the next date. Re-notify this appeal on 25th of April, 2024." The order was authored by Justice Ashutosh Kumar. 

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 Additional Sessions Judge-VIII, Bhojpur 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 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.