Jharkhand residents languising in Buxer jail after conviction in NDPS case, High Court to hear them on May 9

The matter related to suspension of conviction over nine quintals of ganja came up for hearing before the division bench of Justices Ashutosh Kumar and Khatim Reza. The counsel for Shankar Yadav, the second convict and the first appellant sought adjournment. The first appellant, a resident of Jharkhand is in Ara jail. Dr. Gopal Krishna, the counsel for Pritam Lakra (22), the second convict and the second appellant made a brief submission about how Lakra is not covered under offences under Section 20 (b) (ii) (C) and Section 25 of Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985 because Lakra, the resident of Jhrakhand is not a cultivator, producer, manufacturer, possessor, seller, purchaser, transporter, importer,  exporter or user of ganja. He is not the owner or occupier or controller or user of any house, room, enclosure, space, place, animal or conveyance. Therefore, he does not have the agency to knowingly permits it to be used for the commission of offence under NDPS Act by any other person.

The counsel for Pritam Lakra informed the High Court about Nav Kumar Ojha, the third convict in the case who is languishing in Buxer jail without any legal assistance because of extreme poverty and unsound mental health of his wife. He submitted that the Court may direct the Legal Services Authority to provide legal aid to Ojha, the resident of Jhrakhand. Justice Ashutosh Kumar led bench asked Dr. Krishna, the counsel to get vakalatnama from Ojha and provide free assistance. The counsel agreed to do so. The case is listed for hearing on May 9, 2024.       

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. 

 

The judgement of the 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) (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) (C) of the NDPS Act.

As to Section 25 of NDPS Act which 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 careful reading of Section 25 of NDPS Act shows that 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.

 

Notably, 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.