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."  

 

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.   

 

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.