Post conviction in NDPS case, Jharkhand residents are in Buxer and Ara jails, High Court to hear their appeal in August

The 84 page long judgement of the trial court by Additional Sessions Judge-VIII, Bhojpur refers to four accused persons namely, 1) Bijendra Kumar Rai (Bihar), Nav Kumar Ojha (Jharkhand), Shankar Yadav  (Jharkhand) and Pritam Lakda (Jharkhand). Notably, all the four accused persons were acquitted of conspiracy charges (Section 29 of  Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985) by the trial court. But Bijendra Kumar Rai (Bihar), the kingpin was given the benefit of doubt, and acquitted by the trial court, and the remaining three-truck owner, driver and Khalasi, the cleaner were convicted under Sections 20(b) (ii) (C) and 25 of NDPS Act, 1985. The appeal related to conviction over nine quintals of ganja came up for hearing before Patna High Court's division bench of Justices Ashutosh Kumar and Jitendra Kumar on May 9, 2024. 

 

The order records that the Advocates for Shankar Yadav, Pritam Lakra and Nav Kumar Ojha, the Appellants submitted that "the informant is the Investigator of this case which vitiates the entire prosecution case. It has further been submitted that none of the mandatory provisions of the NDPS Act has been complied with." The argument was submitted by the counsel for the second appellant. 

 

The High Court's order reads: "We have also been informed that the wife of another co-convict is mentally ill and, therefore, no appeal has been preferred on his behalf as yet. Apart from this, this Court has been informed that the main accused of this case has been acquitted on a specious plea which is not sustainable in the eyes of law. Though, taking into account the quantity of narcotics recovered from a vehicle of which the appellants are driver and cleaner respectively, we are not inclined to suspend their sentence presently. The prayer is rejected. However, we direct the registry to prepare the paper book urgently and get this case listed for final hearing in the second week of August commencing from 5th of August, 2024. We have said so for the reason that one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens." 

 

The second appellant, a resident of Jharkhand is in Buxer jail. The first appellant is in Ara jail and is represented by Advocate Ravindra Kumar. Advocate Dr. Gopal Krishna  represents the second appellant. He also represents Nav Kumar Ojha, the third convict on humanitarian ground because he is without any legal assistance due to extreme poverty and unsound mental health of his wife. The third convict, a resident of Jharkhand is in Buxer jail as well.

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."

The High Court will hear the appeal urgently in the second week of August 2024 because "one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens."