Judgements of Patna High Court in NDPS cases

In Guddu Singh v. State of Bihar (2018), Justice Ashutosh Kumar set aside the judgment and order of conviction dated February 13, 2017 and February 15, 2017 respectively, passed by the 7th Additional Sessions Judge-Cum-Special Judge, Motihari, East Champaran, in N.D.P.S. Case No. 01 of 2015/30 of 2016, arising out of Chhauradano P.S. Case No. 150 of 2014.  

Guddu Singh, the appellant was convicted for the offence punishable under Section 20(b)ii(B) of the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 by the 7th Additional Sessions Judge-Cum-Special Judge, Motihari, East Champaran. He was directed to undergo rigorous imprisonment for five years, to pay a fine of Rs. 50,000/- for such offence and in default of payment of fine to further suffer  simple imprisonment for one year. The appellant was found to be in possession of two kilograms of Ganja. The police submitted charge-sheet after investigation, whereupon the cognizance was taken and the appellant was tried for the offences.

Justice Kumar observed that "it is clearly revealed that there has been violation of Sections 41, 42, 52 and 55 of the N.D.P.S. Act and standing instructions of the N.C.B. with respect to search, seizure and sampling. For the aforesaid reasons, this Court is of the view that the prosecution has not been able to bring home the charges against the appellant for the offence in which he has been convicted, beyond all reasonable doubts."

He concluded that "the appellant/Guddu Singh has remained in jail since 29.12.2014, i.e. for more than three years. This Court, therefore, has no option but to accord the benefit of doubt to the appellant. The appeal succeeds. The appellant/Guddu Singh is acquitted of all charges. He is in jail. He is directed to be released forthwith, if not wanted in any other criminal case. Let a copy of this judgment be transmitted to the Superintendent of concerned jail for necessary compliance." The judgement was delivered by Justice Ashutosh Kumar on March 30, 2018 

In Shiv Shankar Dixit vs. Union of India 2017 (1) PLJR 671, seized articles were placed before the Magistrate after three months from the occurrence. No cogent evidence was produced that alleged quantity of Ganja was seized from the conscious presence of the appellant. There was noncompliance of Section 52A of the NDPS act The Prosecution relied on the confession of the accused recorded under Section 67 of the NDPS act. The accused in his confession statement has only said that he did not know that there was Ganja in the vehicle and indicated that Devi sau told him that there was bearing in the vehicle which was to be handed over to one Khan at Barh. He also said in his confession statement that Devi Sau was actual driver who had handed over the steering of the vehicle to the accused and had left the vehicle on the pretext of clearing the Jam. The confession statement was found to be exculpatory in nature and was not found admissible. The accused was accordingly acquitted by the High Court.

In Parmanand Choubey vs. State of Bihar 2017 (2) PLJR 540, a petition for release of vehicle was rejected by the District Judge on the ground that any conveyance used to carry any Narcotic Drug or Psychotropic substance is liable for confiscation under sub section 1 or sub section 2 of the NDPS act and also on the ground that since investigation was still pending, it will not be proper to release the vehicle. It was held that section 60(3) of NDPS act does not put a bar for release of vehicle during the pendency of investigation or trial by the court.

In Muneshwar Pandit vs. State of Bihar 2018 (1) PLJR 494, the Patna High reiterated the law laid down in State of Rajasthan vs. Ram Chandra AIR 2005 SC 2221 and observed that when a person is about to be searched the requirement of section 50 would be that the officer proposing to effect the search cannot act in a dual capacity: first as an officer authorized under section 42 to search a person and second as the Gazetted officer in whose presence the option of search is given to the accused. Officer conducting the search cannot discharge the dualfunction both under section 42 and section 50 of the NDPS Act. The informant has said in his testimony that the SDM was leading the raiding partyand it was in his presence that the seizure and sampling was done but the SDM wasnot examined and even his signature was not available on the seizure list. Moreover,the seized Ganaja was kept in 9 packets but the seal was available only on 6 packets.There was unexplained delay of 20 days in sending the samples to the FSL. The seizure witnesses also denied having any knowledge of the seizure. All these circumstances were found to be fatal to the prosecution case and led to the acquittal of the accused.

In Ram Narayan Shah vs. Union of India 2018 (1) PLJR 386, 200 grams of Heroin was found hidden between the speedometer and visor of the bike from which two samples of 5-5 grams each (S1 and S2) were drawn and sealed with the department seal at the spot. The rest 190 grams were of the recovered substance was heat sealed in transparent polythene packet and was put in a paper envelope and sealed by the department seal which was signed by the seizing officer, independent witnesses and the owner of the goods. Even though the samples were produced before the court but the original seized articles were not produced. The sample taken from the seized bulk was on record and the report of the FSL on the sample taken stated that the sample was that of Heroin and Morphine and the certificate of the articles seized was also proved. These facts coupled with the confessional certificate of the accused under section 67 was found sufficient for conviction of the accused even though the original contrabands that were seized were not produced before the Court.

In Tuntun Gope vs State of Bihar 2018 (1) PLJR 777, charas was alleged to have been recovered from the possession of the accused in presence of BDO. The statement of the BDO showed that he reached the place of occurrence after the seizure. The informant has not said anything in his report about asking the accused for taking his search and about consent by the accused for his search before the magistrate/gazetted officer. There is nothing on record to indicate that the informant made the accused aware that B.D.O. Fatuha is present before him. There is nothing on record to indicate that the informant informed the accused about his right of being searched before a gazatted officer or a magistrate. The seized contraband was sent to F.S.L. for examination on 16.11.2013 while the same wa seized from the possession of the accused on 9.11.2013. The whereabout of the contraband for these seven days was not explained. The seizure and arrest were not reported by the Informant to the Senior Police Officers within 48 hours and thereby Section 57 of the NDPS Act was not complied. The seized contraband was not produced before the trial court and no explanation was given. Benefit of Doubt was given to the accused.

In Raj Kumar vs. State of Bihar 2018 (2) PLJR 214, seized Charas was not kept in Malkhana, the sample was not sealed, sample was not prepared in presence of the Magistrate even after appointment of Magistrate and the seized material was sent to laboratory examination after about one and half years of its seizure. The independent witnesses were not examined and the remaining witnesses were all police officers. No explanation was provided by the prosecution for non-production of the Charas as an exhibit in the trial. The contention of the prosecution that the confession of the accused recorded under section 67 of the Act is sufficient for awarding punishment also did not find favour with the Court since the accused was kept at SSB camp for 24 hours and therefore presumption can be drawn that the confession was not voluntary. Hence the accused was acquitted.

In Bhulan Das vs. State of Bihar 2018(2) PLJR 361, seizure list witnesses were not examined by the prosecution. Instead, defence has examined one of them as defence witness. The said witness has not supported the prosecution case of raid of the houses of the appellants by the police personnel and recovery and seizure of the contrabands from their house. There is nothing on record to show that on receiving the secret information and making the sanha entry, the informant had sent either the information or the copy of the sanha entry to the immediate superior officer. Thus, there was utter violation of Section 42 (2) of NDPS act. There was nothing on record to show that the seized Ganja was either sealed at the place of occurrence by the informant or at the police station by SHO as none of the witnesses examined by the prosecution has stated so. This aspect creates serious doubt about the seizure of the contraband, its quantity and taking of the sample and sending the same to FSL. The samples were not collected from each packet of the seized Ganja separately nor by mixing the contents of each packets together. All these aspects were found to be fatal to the prosecution case and accordingly the case was found fit for acquittal of the accused.

In Sharawan Prasad vs. State of Bihar 2018 (3) PLJR 93, no evidence was offered to show the search and seizure was made in front of any gazatted officer or magistrate. Sampling was also not done as per standing order no:01/98 or 01/89 issued under the section 52A. The seized article was sent for examination after a month of seizure. There was violation of section 57 of NDPS act. The informant himself was the investigating officer of the case. All these circumstances were found sufficient for the acquittal of the accused, the case.

In Amit Kumar vs. State of Bihar 2018 (3) PLJR 90,, possession of any of the drugs covered under the schedule H & H1 without any, license attracts the offence punishable under the NDPS act. Huge quantities of Corex Cough Syrup, Fortwin Inj. & Ativan Tabs. were recovered from the shop of the accused. These drugs contained ingredients specified in schedule H & H1. The accused had license only to sell schedule C & C/1 drugs. Therefore, the order rejecting discharge petition of the accused was affirmed by the Court.  

In Md. Samsul vs. Union of India 2018 (4) PLJR 261, the seizure list witnesses were not examined. The search was carried on information received but this information was not recorded in writing. Inventory of seized Ganja was not proved and entry register of Malkhana where the seized Ganja was kept and from where it was set to have been taken out for destruction was not proved, as such there was no compliance of section 52(A)(2) and of section 50 of the NDPS act. None of the provision regarding search, seizure, preparation of inventory and destruction of contraband articles, certification etc. were followed. Hence conviction and sentence were set aside.

Justice Ashwani Kumar Singh sets aside conviction judgement under NDPS Act by 4th Additional District and Sessions Judge, West Champaran

In Pintu Bhagat vs. State of Bihar, Justice Ashwani Kumar Singh of Patna High Court set aside the judgment of conviction dated June 15, 2010 and the order of sentence dated June 23, 2010 passed by the 4th Additional District and Sessions Judge, West Champaran at Bettiah in Tr. No. 15 of 2008, arising out of Kangli P.S. Case No. 25 of 2007. The judgement of the High Court was passed on July 27, 2015. 

The appellant was convicted for the offences punishable under Sections 20(b)(ii) (C), 22(b) and 23(b) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh for each of the offences and in default thereof to undergo simple imprisonment for two years for each of the offences. The sentences awarded against the appellant were ordered to run concurrently.

The Court noted that the seized drugs were neither sealed nor sample taken on the date of seizure. 25 packets were alleged to have been seized while sample was taken from only 01 packet. Seized articles were not weighed and there was discrepancy in the statement of the witnesses regarding sending of sealed articles to the Police station. Photograph of the drugs were not taken nor representative sample was drawn in presence of any magistrate. Keeping the seized articles in unsealed condition for over a month, taking substances out of it in absence of accused or any independent witness for sampling and sealing of the sample by general seal create suspicion of tampering. The procedure laid down under Sections 52, 55 and 57 were not followed. 

Justice Singh concluded: "I am constrained to say that the investigation in this case is perfunctory and on important aspects of the matter the evidence is highly discrepant and unconvincing. Therefore, the evidence adduced is wholly insufficient to believe that any article was ever seized from the possession of the appellant and, if seized, the same were charas."

The case was registered on December 28, 2007 in respect of an occurrence which took place in the night intervening between 27.12.2007 and 28.12.2007 on the basis of a written report submitted by one Raghunath Bori to the Officer-in-charge of Kangli Police Station. In the night on December 27, 2007 at Sikta Indo-Nepal Border near the old canal, which is 1.5 km away from Border Pillar No. 407 of village-Kathiya Mathiya, at about 11 p.m. in the night, seven persons were seen coming from the Nepal side carrying hand bags. On suspicion, when he asked to stop, they started running away. While running away, four of them fell down. It is further stated that the miscreants started firing on SSB Personnel. The SSB Personnel also took position and overpowered one of the miscreants, but other miscreants managed to escape taking advantage of dense fog and darkness of night. On inquiry, he disclosed his name as PintuBhagat, the appellant. On search of the bag recovered from the appellant, 25 packets of charas, each containing about 500 gm, wrapped in plastic covers, which were further kept in a gunny bag and further in a hand bag were recovered. 

On receipt of the written report of the informant, Kangli P.S. Case No. 25 of 2007 was registered on December 28, 2007 at 1.10 p.m. under Sections 21, 22, 23 of the NDPS Act and 27 of the Arms Act by the Station House Officer, Surendra Ram, who took up investigation of the case himself.

After holding the trial and hearing the parties, the trial Judge convicted and sentenced the appellant. The counsel for the appellant submitted that the trial Court did not appreciate the evidences led on behalf of the prosecution in correct perspective. The contraband articles seized in the case were never produced before the Court. Even the Malkhana register was not produced during trial in order to prove safe custody of the contraband alleged to have been seized from the possession of the appellant. The chemical examiner, who issued the FSL report, was not examined during trial. The seizure list was neither prepared
at the spot nor the articles recovered were ever sealed in presence of the appellant. Even according to the prosecution case, sample was taken from only from one packet out of the 25 packets of contraband said to have been seized from possession of the appellant. It is not known from which packet the sample was taken. Hence, it cannot be said what were the contents of the other 24 packets which were neither produced before the court during trial nor any sample was drawn from them. There is no evidence that the contraband seized was ever weighed. The trial of the appellant was vitiated for total non-compliance of Sections 42, 52-A, 55 and 57 of the Act.

The Court observed that "From the record, it is clear that the seized articles were neither sealed nor sample was drawn on the date of seizure i.e. 27.12.2007. Even on 28.12.2007 when the seized articles were produced before the Surendra Ram, they were neither sealed nor were sample drawn in presence of the accused. The S.H.O., Surendra Ram (P.W. 9), has deposed that he kept the seized articles in the Malkhana of the police station but he has not stated that they were kept in the Malkhana in sealed condition. The Malkhana register was not produced in court in order to show the date of entry of the seized contraband in the Malkhana. The S.H.O., Kangli deposed that sample was drawn from one of the packets and it was properly sealed before sending it to the Forensic Science Laboratory, but it would appear from the record that the production-cum-seizure memo did not carry any seal impression."

The Court noted that "according to the prosecution case, 25 packets were recovered. It is an admitted case of prosecution that sample was taken from only one packet. Why the sample could not be taken from the other packets alleged to be seized has neither been stated nor been explained by the prosecution during trial."

The Court found that from the record that the charge sheet in the case was submitted on February 25, 2008 and the FSL report was received in the court almost two years thereafter on February 8, 2010. It was taken into evidence by the trial court under Section 293 of the Code. A copy of the FSL report was never supplied to the accused. A perusal of the report would demonstrate that the tin dibba sent to the FSL contained pieces of dark brown solid rectangular shaped substances. The dark brown solid rectangular substances contained in tin dibba were found to be charas containing Tetra Hydro Cannabin (T.H.C.). The report further describes that Tetra Hydro Cannabin is chief intoxicating ingredient of charas.

The order record that "There is no cogent evidence that the seized articles were ever weighed, as no balance and weight were used to weigh the articles. Even the weight of the sample sent to the FSL has not been disclosed by the informant in the deposition. The FSL report (Ext. 6) does not indicate the weight of the sample sent to the FSL. The remnants of the sample were not sent back. What happened to the 24 packets seized from the appellant is not known; what happened to the packet from which sample was drawn is also a mystery." The Court doubted the veracity of the prosecution case.

Justice Singh observed that "I find substance in the argument advanced by the learned counsel for the appellant that the provisions prescribed under Sections 52, 55 and 57 of the NDPS Act have not been followed by the investigating agency in the present case. It would be evident from a reading of Section 55 of the NDPS Act together with Section 52(3) of the NDPS Act that it is the officer-in-charge of the police station who takes charge of the person arrested as also the article seized and supervise the proceedings. He has to seal the contraband articles with his own seal, and then get them deposited at the police station for the safe custody either himself or through some officer, and in that event allow that officer to put his seal also on the packets sealed with his seal. There is no evidence that the S.H.O. of Kangli Police Station had ever put his seal on the seized articles or on the sample sent to the FSL. Though the S.H.O. has stated in his deposition that the same was sealed, there is no evidence whose seal was put on the sample."

He further observed that "In my opinion, the legislature had never contemplated that articles or samples recovered under the provisions of the NDPS Act would be kept unsealed, or they would be sealed with general seal. It would be evident from the record that the sample alleged to have been sent to the FSL had not been sent with any special seal."

The Court noted that Section 52-A of the NDPS Act comes into play after recovery of the contraband item. Justice Singh found that "photographs of the drugs or substances so seized were never taken. Even, the representative sample was not drawn in presence of any Magistrate. The seized charas was never produced in the court. There is no evidence to show that seized articles were kept in safe custody in the police station. In absence of any inventory, the photographs of the charas and any list of samples drawn under Sub-section (2) of Section 52-A and certified by the Magistrate, it would be difficult for the court to place reliance on the prosecution case regarding recovery of charas. The entire action of the prosecution in conducting the search, seizure, sampling etc. is contrary to the mandate of law. What is curious to note in the present case is that the guidelines given in the Act under Sections 52(3), 52(4) and 55 of the NDPS Act have been given a complete go-bye by the investigating agency. Further, Section 57 of the NDPS Act relates to reporting of arrest and seizure to immediate superior officer. The evidence shows that the same has not been done."

It emerges that the procedural errors on the part of the prosecution proved fatal to their case. 

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

“So true it is that, in every condition of life, the strong man who is guilty saves himself at the expense of the innocent who is weak.”

–Rousseau's Autobiography, Confessions (1782)

In Shankar Yadav and Pritam Lakra v. Union of India through Narcotics Control Bureau, Patna, Bihar  (Criminal Appeal (DB) No.629/2023) against conviction, AO No. 697862/ 2023 was filed on June 23, 2023. It was registered on June 25, 2023.

The petitioner's counsel is Ravindra Kumar. The respondent's counsel is Sujit Kumar Singh. Prior to this, supplementary affidavit was filed by Ravindra Kumar on August 8, 2023. This appeal arises out of NDPS Case No. 06 of 2021. 

In his order dated May 09, 2023 in NDPS Case No. 06 of 2021, Virendra Kumar Choubey, Additional District Sessions Judge-VIII, Ara, Bhojpur dealt with the case against four acuused, namely, 1. Shankar Yadav (25)-Sarwaha, Charhi, Hazaribagh, Jharkhand,  2. Pritam Lakra (22)-Taku, Kuddu, Lohardagga, Jharkhand, 3. Nav Kumar Ojha (53)-Pundru, Pindrajora, Bokaro, Jharkhand and  4. Bijendra Kumar Rai (26), Dahiyawa, Chhapra city, Saran, Bihar.

(Notably, the order was passed on the date on which the judge was joining as Additional District and Sessions Judge at Madhepura with Posting Date 09 May, 2023.)

Shankar Yadav, Pritam Lakra and Nav Kumar Ojha were found guilty under Section 20 (B) (ii) (C) and Section 25 of Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. 

The 84-page long decision of Additional District and Sessions Judge-VIII, Ara, Bhojpur narrates the sequence of events and submissions. 

The above mentioned four accused faced the charge of offences under Section 20 (B) (ii) (C) and Sections 25 and 29 of NDPS Act. The summary of the charges against the accused were narrated and explained. They pleaded not guilty and sought redress.  

At 6 PM, on January 30, 2021, Ram Ayodhya Kumar of NCB, Patna was informed by a reliable source that one truck bearing registration no. JH 09 J 4421 was carrying huge quantity of ganja from Odisha is coming via Ranchi, Daltenganj, Aurangabad, Ara-Chhpara More. Nav Kumar Ojha alias Sadhu, a resident of Bokaro, Jharkhand was accompanying the truck with a white color Scorpio with registration no. JH 09 M 7100. The said drugs was to be delivered to Bijendra Kumar Rai (26), Dahiyawa, Chhapra city, Saran, Bihar on February 2, 2021. This information was written on a note sheet and filed on January 30, 2021 and Rajan Kumar, S,P., N.C.B, Patna was apprised. Following this it was converted into NCB (i) on January 30, 2021. (The seized truck is registered in the name of Bablu Mahto, Bokaro)

Acting on to this unique information, a team was constituted on January 30, 2021. The team comprised of  Ram Ayodhya Kumar, Paramhans Kumar, Raviranjan Kumar, Rakesh Kumar Singh, Sikandar Kumar Singh and Dinesh Kumar, the driver. This team was sent from NCB Office, Patna at 11 AM on January 30, 2021 to Aurangabad. It reached Aurangabad on the same say at 4 PM. NCB team waited for the said truck and the said scorpio all through the night. Following which the team left Aurangbad and started searching for it on the route. The team reached Ara-Chhapra More on February 1, 2021 around 7 PM and started waiting for these vehicles. The said truck was sighted at 4.30 on February 2, 2021. It was stopped in the presence of two independent witnesses, namely, Prince Kumar and Luv Singh. The driver identified himself as Shankar Yadav. The other person sitting in the truck was identified as Pritam Lakra. Both admitted that ganja is hidden in the truck. Shankar Yadav disclosed that the consignment was meant to be delivered to Bijendra Kumar Rai. They also disclosed that Nav Kumar Ojha accompanied the truck from Ranch till Aurangabad after which he left for Chhapra. Bijendra Kumar Rai was nabbed at his home in Dahiyawa on February 2, 2021 and Nav Kumar Ojha was caught with his scorpio from Lalita Hotel, Chhapra. Shankar Yadav was given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and admitted that he is involved in the smuggling of ganja. He revealed that acting on the instructions of Nav Kumar Ojha, he and Pritam Lakra went to Koraput, Odisha and from there they brought the ganja to Bihar. At the conclusion of this work, Shankar Yadav was to get Rs 15, 000.

Pritam Lakra was given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and admitted that he is involved in the smuggling of ganja. He revealed that acting on the instructions of Nav Kumar Ojha, he and Shankar Yadav went to Koraput, Odisha and from there they brought the ganja to Bihar.  

From the perusal of the decision of Additional District and Sessions Judge-VIII, Ara, Bhojpur, it emerges that Pritam Lakra was working pro bono.         

Bijendra Kumar Rai was also given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and 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 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.      

Nav Kumar Ojha was given notice under Section 67 of the NDPS Act. He gave his statement on February 2, 2021 and admitted that he is involved in the smuggling of ganja. He informed that he had 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. He informed that he accompanied the ganja laden vehicle from Ranchi to Aurangabad. After that he left for Chhapra on February 1, 2021 where he stayed in Lalita Hotel.   

It is written in the Pariwaad Patra that on the basis of the statement of these four persons, the investigating officer believed that under Section 20 (B) (ii) (C) and Sections 25 and 29 of NDPS Act read with Section 8 (C) of the NDPS Act, they have committed the offence of violating these provisions of the law. Therefore, Shankar Yadav (25) was arrested at 6 PM on February 2, 2021. Pritam Lakra (22) was arrested at 6.30 PM on February 2, 2021. Bijendra Kumar Rai (26) was arrested at 10 PM on February 2, 2021. Nav Kumar Ojha (53) was arrested at 7 PM on February 2, 2021. Their Jama Talashi (the report about the recovery of any belongings) was done on February 2, 2021 at 6.10 PM, 6.40 PM, 10.10 PM and 7.10 PM respectively. 

On February 3, 2021, these four accused persons were subjected to medical examination at primar health centre, Ara, Bhojpur. No injury was found on their body and they were found physically and mentally fit. 

On February 3, 2021, an application was given to District and Sessions Judge, Ara, Bhojpur for praying for the judicial custody of the accused Shankar Yadav and Pritam Lakra. Following which they were taken into judicial custody and sent to sub-prison Daudnagar, Aurangabad.   

On February 3, 2021 itself, an application was given to District and Sessions Judge, Ara, Bhojpur praying for the remand of Bijendra Kumar Rai and Nav Kumar Ojha by NCB for two days. This was accepted by the court. 

On February 4, 2021, Bijendra Kumar Rai informed in his statement that out of the 909.2 quintal, five quintal belonged to Sundar Rao and 4 quintal belonged to Damu. 

On February 5, 2021, a letter was sent to NCB, Ranchi Sub-zone for the inspection of the houses of Shankar Yadav, Pritam Lakra and Nav Kumar Ojha. The latter responded by their letter dated February 16, 2021, February 19, 2021 and April 5, 2021 with regard to house inspection of Nav Kumar Ojha, Pritam Lakra and Shankar Yadav respectively. During inspection soem documents were recovered from the houses of Nav Kumar Ojha and Shankar Yadav.      

On February 5, 2021, Bijendra Kumar Rai and Nav Kumar Ojha were subjected to medical examination at primar health centre, Koilwar, Bhojpur. No injury was found on their body and they were found physically and mentally fit.   

It is written in the Pariwaad Patra that on February 5, 2021, an application was given to District and Sessions Judge, Ara, Bhojpur praying for the judicial custody of Bijendra Kumar Rai and Nav Kumar Ojha. Following which they were taken into judicial custody and sent to sub-prison Daudnagar, Aurangabad.   

It is written in the Pariwaad Patra that on February 5, 2021, District and Sessions Judge, Ara, Bhojpur granted permission for taking nine samples of the confiscated drugs and for depositing the seized vehicles at Koilwar police station on an application in ths regard and Ranjita Kumari, first class judicial magistrate  was appointed to certify the veracity of the inventory of the seized goods. She certified it on March 10, 2021.

It is written in the Pariwaad Patra that Nav Kumar Ojha has a case against him under Sections 324, 325 and 34 of Indian Penal Code since October 23, 1990 in Pindrajora thana. 

It is written in the Pariwaad Patra that Poonam Lakra, w/o James Lakra was sent a notice but no reply was recieved. The mobile number -9155476621 which Nav Kumar Ojha was using was registered in the name of Poonam Lakra. Bijendra Kumar Rai was using mobile number 8340293420, registered in his own name. The mobile number 8480462693 which Shankar Yadav was using was registered in the name of Ravindra Kumar Sethi, resident of Suwarnapur, Ganjam, Odisha. Bijendra Kumar Rai was using amobile number 8797118261 was registered in the name of Kanti Devi, Doriganj, Saran, Bihar. Damu was using amobile number 8480332458 which was registered in the name of Dhanpat Visoi, Koraput, Odisha. Sundar Rao was using a mobil enumber-7846987733 which was registered in the name of Duryodhan Nayak, Koraput, Odisha. Pritam Lakra was using a mobile number 7326823429 which was registered in the name of Nav Kumar Ojha....Sundar Rao was connected only with Bijendra Kumar Rai.  

The accused persons disputed the evidence given by seven witnesses-Paramhans Kumar, Prine Kumar, Luv Singh, Vinod Kumar, Ram Ayodhya Singh, Anil Kumaraand Rajan Kumar-against them. The accused claimed to be innocent. No evidence was produced on behalf of the accused.  

The court considered three questions:

1. Did all the accused together with co-accused indulge in sale-purchase-transport of commercial amount of 909.2 kg of ganja on truck number-JH 09 J4421 under their possession at 4.30 PM on February 2. 2021 at Ara-Chhapra More without valid permission or rightful permit?

2. Did accused Nav Kumar Ojha provide truck number-JH 09 J4421 which is under his ownership and control for transport of 909.2 kg of ganja at the above mentioned date, time and place?   

3.  Did accused Bijendra Kumar Rai and Nav Kumar Ojha together with Pritam Lakra and Shankaf Yadav participated in criminal conspiracy to knowingly indulge in smuggling of drugs-illegal ganja?

The court examined first two questions together. It did not find positive answer with regard to the third question.  

The order dwells on Section 8 (c) of NDPS Act which deal with "prohibition of certain operations". This provision reads, "No person shall produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance,except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: 1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]"

Section 20 (B) deals with the punishment for contravention in relation to cannabis plant and cannabis. Section 20 (B) (ii) (C) reads: Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable,—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.]

Section 25 deals with the "Punishment for allowing premises, etc., to be used for commission of an offence". It reads: "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 decision of the Additional District and Sessions Judge-VIII, Ara, Bhojpur did not find sufficient evidence of criminal conspiracy against three accused persons. Therefore, he exonerated them of offence under Section 29 of the NDPS Act.  

Section 29 of the Act deal with "Punishment for abetment and criminal conspiracy" It 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.

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 and released him from judicial custody. 

In the concluding sentence of his 84 page long judgement dated May 9, 2023, Virendra Kumar Choubey, Additional District and Sessions Judge-VIII fixed May 17, 2023 for hearing on the point of sentencing, eight days after his date of posting-May 9, 2023-as Additional District and Sessions Judge-I, Madhepura.  

In the sentencing order dated May 17, 2023, Virendra Kumar Choubey, Additional District and Sessions Judge-VIII has recorded that the lawyer of the accused submitted that this is the first crime of the accused and he was not involved knowingly in the offence. But the judge sentenced Shankar Yadav, Pritam Lakra and Nav Kumar Ojha of 15 years of rigorous imprisonment and fine of Rs 1 lakh. In case the fine is not submitted, the convicts will have to remain in prison for another six months.