Withdraw all judicial work from Justice Gangopadhyay: Calcutta High Court Bar Association, High Court stays order of Justice Gangopadhyay

A Division Bench of Justices Harish Tandon and Hiranmay Bhattacharyya of Calcutta High Court was constituted to assemble beyond the judicial hour at 8,30 PM because of the unprecedented events happened in Court on December 18, 2023. In its 4 page long order, the Court stayed the "operation of the order dated 18th December 2023 (of Justice Abhijit Gangopadhyay) by which the appellant has been directed to undergo a period of three days civil imprisonment until further order of this Court" by its order dated December 18, 2023. 

Prior to this, the Calcutta High Court Bar Association passed a resolution whereby the members of the Bar Association have decided to unanimously refrain from entering the courtroom of Justice Abhijit Gangopadhyay unless the latter apologises for holding Advocate Prosenjit Mukherjee. The Association responded in this manner after the judge ordered the arrest of Advocate Mukherjee in the courtroom on charges of contempt of court citing the “extreme insult” meted out to the lawyer.

In a letter to the Chief Justice of Calcutta High Court, the Calcutta High Court Bar Association expressed its disapproval of Justice Gangopadhyay’s actions, stating that the lawyer was taken into custody without being given an opportunity to be heard. The association also announced that none of its members would appear in Justice Gangopadhyay’s court unless he apologised. The association has made an unanimous request to the Chief Justice T.S. Sivagnanam to withdraw all judicial work from Justice Abhijit Gangopadhyay.

The Division Bench's order records that the background of the case. The instant Mandamus Appeal has been registered on the basis of a letter written by Prosenjit Mukherjee, a practicing Advocate of this Court, assailing an order passed in CPAN 9 of 2023 by which he was directed to be taken into custody and undergo for three days civil imprisonment. The letter would disclose that the custody of the appellant was taken by the Sheriff/Deputy Sheriff despite repeated unconditional apology having tendered before the learned Single Judge. It is revealed from the said letter that the appellant was representing the West Bengal Madrasah Service Commission in the writ petition being WPA 2504 of 2021 wherein an order was passed to give the respondent no. 1 appointment on compassionate ground in an aided Madrasah. The said order was assailed by the said Commission before the Division Bench in MAT 194 of 2023 and by an order dated 23rd November 2023 the said order passed by the Single Bench was modified on the prayer of the beneficiary of the said order that her appointment shall be made in an unaided Madrasah but near to her residence as she is a widow having eight year old child. According to the appellant, when the contempt application was appearing before the Single Bench the order of the Division Bench was handed over, but in spurt of the moment without any reasonable cause or the ground having shown, he was sent and taken into custody for a period of three days.

It has been reported that a similar incident had occurred on November 30, 2023, when Justice Gangopadhyay ordered the Bar Council of West Bengal to take action against a lawyer who requested an adjournment. That he order too was stayed by a Division Bench of the High Court.

 

Make Audit Report of Bihar Bar Council, Bihar State Advocate Welfare Trust Committee online: Ram Jiban Prasad Singh, Candidate, Bihar State Bar Council

The voting for the election of the members of the Bihar State Bar Council (BSBC) will happen on December 20, 2023. The counting will be done on December 27, 2023. There are 157 candidates in the fray for the election of 25 Members of BSBC.

One of the candidates for the election to the 25 members of Bihar State Bar Council, Ram Jiban Prasad Singh (Serial No. 34) has highlighted the following issues as necessary for the protection and welfare of advocates:

1. Enactment of exhaustive Advocate Protection Act, immediately issue Advocate Protection Ordinance. 

2. Payment of Rs.5000-/ honorarium per month for five years for newly enrolled advocates according to Kerala model.

3. Enhancement of death claim and retirement claim to the extent of Rs.15 Lac from 7 Lac given by the Bihar State Advocates Welfare Trust Committee to every practicing advocate ensuring the payment within one month from the date of application. 

4. Providing Rs.25 Crore each year by the Governments in Bihar State Advocate Welfare Pension Scheme Fund for starting payment of pension to eligible Advocates of Bihar. 

5. Appointment of competent advocate in Tribunal, Forum and commission in place of retired judge.

6. Designation of Senior Advocate among the advocates practicing in the Civil Courts and Tribunals etc. 

7. Formation of All India Judicial Service Commission in the light of Article 312 of the Constitution of India.

8. Filling up all vacant post of Judicial Officers immediately and as per Reports of different Law Commissions the number of Judicial Officers for extension to 6500 in Bihar and 75 in Patna High Court. 

9. Formation of Advocate M.L.C Constituencies for the State of Bihar.

10. Arrangement for budgetary allocation of at least Rs. 500-/ Crore every financial year for implementation of welfare schemes for advocates, providing infrastructure for sitting arrangement with Construction of new building, Lady advocates' common hall with all amenities, repairing existing building, equipping them with all modern technological facilities, Libraries with computers, Scanners, video conferencing etc.

11. Supplying the electric in every Bar Association including Advocate Association (Shatabadi) Bhawan, Patna High Court on the cost of the Government.

12. Establishment of Primary Health Centre with MBBS Doctor in Court premises. 

13. Extending the benefits of Ayushman Bharat and insurance scheme for Advocates.

14. On line availability of early Audit Report of the Bihar State Bar Council and the Bihar State Advocate Welfare Trust Committee, Patna.

After scrutiny of nomination papers for the election of 25 members of Bihar State Bar Council, the list of 157 candidates has been released. The provisional approval has been given to the candidates to contest the elections. But after the final decision of the Election Tribunal of BCI, it will be known whether all of them are eligible to contest the elections or not. This time a maximum of 78 lawyers have presented their claim from the High Court. Ramakant Sharma, the chairman of Bihar State Bar Council since May 19, 2021 is in the fray. Its vice-chairman, Dharmnath Prasad Yadav and other members, namely, Manan Kumar Mishra, Yogesh Chandra Verma, Vindhyakeshri Kumar, Prem Kumar Jha, Prem Nath Ojha, Sachidanand Singh, Rajeev Kumar Singh, Sudama Roy, Mohammad Saidullah, Rajeeva Kumar Dwivedi @ Pappu Dubey, Rajiv Sharan are Ranjan Kumar Jha​ are also in the fray. Its other current members are: Sharma Chandreshwar Upadhyay, Ram Charitra Prasad, Dinanath Yadav, Jai Prakash Singh, Arun kumar Pandey, Jitendra Narain Sinha, Sanjeev Kumar, Murari Kumar Himanshu, Pankaj Kumar and Neetu Jha.

Manan Kumar Mishra, the current chairman of Bar Council of India (BCI) has won the BSBC elections on six occasions and have become chairman of BCI for six times. Notably, elections to Bihar State Bar Council (BSBC) were conducted in 2018 although the term of the council had ended in 2015, fresh elections were not held. 38,920 valid votes were cast, out of more than 65,000 advocates eligible for voting in the state. 243 candidates were in the fray in 2018. The election was held after a gap of eight years. Prior to that BSBC elections were held in 2010.

Notably, for the 2023 BSBC election, Justice Chandra Mohan Prasad is the Observer along with some six co-observers, Arvind Ujjwal, Mukesh Kumar, Shambhu Sharan Singh, Manoj Kumar, Dhananjay Kumar, Dwiwedi Surendra (Bar Council of India) for the election. A total of 155 booths have been set up across the State. 

Bihar State Bar Council is a regulatory Body constituted under Section 3, Advocate’s Act, 1961. Section 3 deals with the State Bar Councils. Its sub-section (1) mentions Bihar. It provides for the Bar Council of that State. As per Section 3 (2) (b) in the case of a State Bar Council with an electorate exceeding ten thousand, twenty-five members are elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council. The State Bar Council includes the Advocate-General of the State as its ex officio member. 

The Bihar State Bar Council has framed Election Rules with comprehensive provisions for the purpose of election of the Members to the Bihar State Bar Council. The Rules framed by the State Bar Council are subject to the approval by the Bar Council of India for its operational validity.

The election is held every five years in the State of Bihar to elect 25 Members in accordance with the Rules of proportional representation by means of single transferable votes in which each voter has to cast as much votes as the members to be elected to the Council and the preference given by the voters is counted in accordance with the Rules. 

In the process of counting, elimination of the candidates seeking election is the key. The candidate having got the lowest first preference vote is eliminated and the vote is transferred to the candidate getting second preference vote and so on. Although a candidate may not get quota votes but not eliminated up to 25 the strength of the Council is deemed to be elected. 

The Bihar State Bar Council has framed Rules for the welfare of the Advocates and Model Rules for smooth and peaceful election to the Office Bearer of the Bar Association affiliated to the Bihar State Bar Council. 

The names of the person elected is published in official Gazette and from the date of publication the tenure is of five years. The elected Members from amongst them elect a Chairman, Vice Chairman and delegate member for Bar Council of India. 

The Bar Council also elects and constitute different committees to carry out the function under the Advocates Act and the Rules.

Section 6 (1) of the Advocate Act provides the list of the functions of State Bar Council. The  State Bar Council has 13 functions, which are:

(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub-section (2) of section 7 which provides for giving financial assistance to organise welfare schemes for indigent, disabled or other advocates;
(e) to promote and support law reform;
(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;
(eee) to organise legal aid to the poor in the prescribed manner;
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
(gg) to visit and inspect Universities in accordance with the directions given under clause (i) of sub-section (1) of section 7 to recognise Universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf;
(h) to perform all other functions conferred on it by or under this Act;
(i) to do all other things necessary for discharging the aforesaid functions.

Section 6 (2) of the Advocate Act states that a State Bar Council may constitute one or more funds in the prescribed manner for the purpose of—(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates; (b) giving legal aid or advice in accordance with the rules made in this behalf; c) establishing law libraries.

Section 6 (3) of the Advocate Act states that a State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section.

Notably, Section 3 of the Advocates Act provides that "as nearly as possible one-half of such elected members shall, subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State roll, and in computing the said period of ten years in relation to any such person, there shall be included any period during which the person has been an advocate enrolled under the Indian Bar Councils Act, 1926." The State Bar Council has a a Chairman and a Vice-Chairman elected by the Council.

Patna High Courts must ensure earliest listing of bail applications/ anticipatory bail applications: Supreme Court

In order to safeguard judicial practices which are "detrimental to the liberty of a person", on December 11, 2023, in it order, Supreme Court's Bench of Justices C.T. Ravikumar and Sanjay Kumar "held and reiterated that decisions on anticipatory bail applications / bail applications, are concerned with the liberty and therefore, shall be taken up and disposed of, expeditiously. On 21.02.2022 in SLP (Crl) No.1247/2022, a Bench of three Judges of this Court reiterated the same view. Virtually, this Court deprecated the practice of admitting the bail applications and thereafter deferring decisions on it unduly. The case on hand reveals recurrence of such a situation despite the repeated pronouncements of this Court on very issue." 

 

It observed that "We have no hesitation to hold that such an order sans definiteness in the matter relating to anticipatory bail/regular bail, that too after admitting the matter, would definitely delay due consideration of the application and such an eventuality will be detrimental to the liberty of a person. It is taking into account such aspects that this Court held that such matters pertaining to personal liberty shall be taken up and decided at the earliest. It is a matter of concern that despite repeated orders, the same situation continues."

The order reads: "we request the learned Single Judge of the High Court to dispose of the pending anticipatory bail application, pending adjudication before him, on its own merits and in accordance with law, expeditiously and preferably within a period of four weeks from the receipt/ production of this Order. Till such time, we grant interim production from arrest to the petitioner. We also make it clear that the grant of interim protection shall not influence the consideration of the bail application moved by the petitioner and it shall be considered on its own merits. In view of the recurrence of the said situation in different courts, the Registry shall send a copy of this order to the Ld. Registrar General and all concerned of all High Courts so as to ensure listing of bail applications/ anticipatory bail applications at the earliest.

The case arose out of impugned final judgment and order dated 05-12-2023 in MCRCA No. 1434/2023 passed by the High Court of Chhatisgarh at Bilaspur.

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.     

Justice Satyavrat Verma quashes order of Excise Court No.1, Gaya under Bihar Prohibition & Excise Act, grants relief to Aditya Kumar

Taking note of the submissions made by the suspended IPS officer, Aditya Kumar, the petitioner and the fact that the police submitted final form exonerating him of the charges, Justice Satyavrat Verma of Patna High Court quashed the order of Court of Exclusive Excise Court No. 1, Gaya in Fatehpur dated April 20, 2023 in P.S. Case No. 312 of 2022  whereby cognizance of the offences under Sections 51 and 52 of the Bihar Prohibition and Excise Act, 2016 was taken. He found that prima facie, no offence under Sections 51 and 52 of the Excise Act is made out and the reason assigned by the trial court in taking cognizance are erroneous. The 6-page long High Court's order was passed on September 8, 2023. 

The allegations as made in the FIR was that on March 26, 2021, 170 litres of country-made liquor was recovered from a Santro car but no FIR was lodged by Sanjay Kumar, S.H.O., Fatehpur Police station and the petitioner did not take any step to get the FIR instituted, further on instruction of the senior police officer, the FIR being Fatehpur P.S. Case No. 112 of 2021 dated 13.04.2021 was registered. 

It also came to light that the petitioner had initiated disciplinary proceedings against Sanjay Kumar, the then SHO, Fatehpur for lodging the FIR with delay and punished him with censure, further that the aforesaid facts indicated towards the illegal activities of Sanjay Kumar, the then SHO, Fatehpur and the action taken by the petitioner against him. This indicates illegality and irregularity of the SHO. But he ended up implicating the petitioner. 

From the perusal of the allegations as made in the FIR, it is manifest that even if the allegations are accepted on its face value, even then no criminal offence is made out against the petitioner or any offence under Sections 51 and 52 of the Bihar Prohibition and Excise Act, 2016. 

Notably, in his order, the Additional Sessions Judge-cum- Exclusive Special Judge, Excise Court No.1, Gaya wrote, "Acording to legal maxim 'Ignorantia facti doth excusant, Ignorantia juris non-excusant' and it is found in section 76 and 79 of the Indian Penal Code, and it states that a person who commits an offence in the view of a mistake of fact and in good faith that he was bound by law, will not be considered as an offence but "mistake of law" is nothing but misunderstanding the law, which is not valid defence, except for kids, lunatics and mad persons. It is assumed that everyone knows and understands the law of nation. Hence final form submitted under mistake of law is not acceptable."

The petitioner pointed out that the reason assigned by the Additional Sessions Judge-cum- Exclusive Special Judge, Excise Court No.1, Gaya is completely erroneous. He submitted that what escaped the attention of the Additional Sessions Judge is that the police, after investigation, submitted final form by recording that the institution of the case was a mistake of law and it is not the case of the police that the petitioner committed any act on account mistake of law. It made the reasoning given by the trial court in his order vulnerable.

Justice Verma relied on the submission of the State made in the counter affidavit filed by the Additional Director General of Police (Prohibition), Head Quarter, Bihar. The State could not rebut the submissions of S.D. Sanjay, the senior counsel for the petitioner who contended that the police after investigation submitted final form in the case after threadbare investigation and that offence under Sections 51 and 52 of the Excise Act, 2016 in the nature of allegation as alleged in the FIR is not made out as it is not the case of the prosecution that the petitioner deliberately did not act.

57,537 undertrials in prisons without conviction in Bihar

Bihar has 57,537 undertrials at the end of 2022, which is 13.2% of all the undertrial prisoners in India, according to Prison Statistics India–2022 released by the National Crime Records Bureau (NCRB). Its Prison Statistics India (2022) Report (PSI). The PSI is based on the data furnished by the Prison Department of all 36 States/UTs for a calendar year i.e. January 01 to December 31, 2022, as per the NCRB prescribed proformae through an Application developed by NCRB. It reveals that above 75% prisoners are under- trials, The actual occupancy of prisons is 131%. There are 1.9% incidence of recidivism, the percentage of former prisoners who are rearrested for a similar offense. The report discloses that reasons of unnatural deaths of 63 prisoners in prisons is unknown. 

The number of undertrial prisoners in Bihar was 44,187 at the end of 2020. It constituted 11.9% of all the undertrial prisoners in India, according to Prison Statistics India–2020 released by NCRB. 

Most of these prisoners belong to SC, ST and OBC communities. 

In Re: Policy Strategy for Grant of Bail (2022), the Supreme Court recommended the release of undertrial prisoners by upholding the principle of presumption of innocence and the right to a speedy trial. 

An under-trial prisoner is one who has been remanded to judicial custody and lodged in prison upon an allegation of having committed some offence defined and made punishable under some penal law in force with a view to remaining available to meet the charges and face trial. When the trial concludes and the accused is held guilty, the accused becomes a convict lodged in the jail serving the sentence. He ceases to be an under-trial prisoner in the case in which he has been convicted. It may be that convict lodged in prison is taken on remand in another case. He then becomes an under-trial prisoner for the said another case.  

The Supreme Court’s judgment in 2014 held that undertrials can be released on bail on personal bonds provided half of the maximum period of sentence has already been spent inside the jail. 

Earlier, a report titled "Prisons of Bihar: Status Report-2015" by Smita Chakravarty, a researcher studied living conditions of all the 58 prisons of Bihar. She was assigned this study project by Justice V.N. Sinha, Judge of Patna High Court and Executive Chairman, Bihar State Legal Services Authority. It disclosed gross violation of human rights of the prisoners that are under the care and custody of the State. 

Notably, National Human Rights Commission had issued notices to the Chief Secretary and Director General of Prisons, Government of Bihar for factual reports.

The study is based on interview of 30070 inmates. The study highlighted the following issues:

" Complete absence of medical facilities in prisons, particularly for women;

" Bias against terror accused and undertrials by denying them even the copy of chargesheet in cases against them;

" Forced Labour by undertrials which is punishable under Indian Penal Code;

" Punishment of prisoners, under the discretionary powers provided by the Prison Manual Rules without supervision by an appellate body;

" Denial of free legal aid counsel to undertrials, as very few advocates meet the undertrials in the court and they are not represented when produced before the Magistrate;

" Condition of women prisoners and need of medical and psychiatric help etc. 

Aditya Kumar, ex-IPS officer, Krishna Gopal and Namita Singh, the judicial officers under Supreme Court's gaze

Supreme Court declined to alter the decision of Justice Anjani Kumar Sharan of Patna High Court dated March 21, 2023 in Aditya Kumar v. State of Bihar (Criminal Miscellaneous No.74217 of 2022) and compelled the suspended IPS officer to surrender. The 3-judge bench of Supreme Court is seized with the issue of unbecoming conduct of the two judicial officers, namely Krishna Gopal, A.D.J.-II, Benipur, Darbhanga and Namita Singh, O.S.D., Patna High Court and the "appropriate decision on the administrative side" by Chief Justice, Patna High Court. The matter was listed for hearing on December 12, 2023.

In its order dated November 22, 2023, the the 3-judge bench listed the matter for further hearing on December 12, 2023. It orered that the Supreme Court Registry shall add ‘Patna High Court through its Registrar General’ as Respondent No.3 and send requisite intimation forthwith. The counsel for the State may also inform the Registrar General, Patna High Court about this order for compliance. The Supreme Court observed, "Having considered the matter, this Court is of the opinion that the petitioner is not entitled to the benefit of anticipatory bail, majorly on account of the seriousness and gravity of the alleged offences and apparent non-cooperation....we affirm and uphold the Impugned Judgment. However, as there was an interim order in favour of the petitioner, it is ordered that he surrender before the Court concerned within a period of two weeks from today." It upheld the "Impugned Judgment' of Justice Sharan.

Prior to this, in his 18 page long order, Justice Sharan wrote, "Considering the facts and circumstances of case as well as the fact that there are ample evidence against the petitioner in the form of electronic evidence also, which not only discloses but also establishes the connivance, collusion and active participation of the petitioner as a mastermind, who got the plan executed through co-accused Abhishek Agrawal alias Abhishek Bhopalaka, I am not inclined to enlarge the petitioner on anticipatory bail. The prayer for anticipatory bail of the petitioner is hereby rejected."

Aditya Kumar, the petitioner had approached the High Court apprehending his arrest in Economic Offences P.S. (Patna) Case No. 33 of 2022 registered for the offences punishable under Sections 353, 387, 419, 420, 467, 468 and 120B of the Indian Penal Code and Section 66 (C) and 66 (D) of the Information Technology Act.

The order records that on the basis of a written information dated October 15, 2022 by the informant, Dy. S.P., Shri Bhaskar Ranjan, Economic Offences Unit (EOU), the case was registered. It has been alleged that on the basis of confidential information that while using the mobile number 9709303397 the user had called the then Director General of Police (DGP), Bihar, Patna and other senior officers on mobile phone and Whatsapp call to pressurize for doing an administrative act/taking administrative decision in favour of one senior officer. On verification of such fact, a team was constituted for which written intimation was also received from the DGP in which he informed that the user of mobile number 9709303397 was claiming himself to be Justice Sanjay Karol, the then Chief Justice of Patna High Court, on his D.P. the photograph of the then Hon’ble Chief Justice was fixed and he used to talk on his official mobile number 9431602303 on Whatsapp and was asking to do some work on which he doubted from the tone and, accordingly, directed to take necessary action.

Noatbly, the order records the involvement of two Judicial Officers in the murky transactions is also transpired as they unsuccessfully tried to make pairvi for listing the case of the petitioner in a particular Bench. It draws on whatsapp chatts between Krishna Gopal (Krishna Gopal, A.D.J.-II, Benipur, Darbhanga) and Abhishek Bholpalaka with regard to talk to Namita (Namita Singh, O.S.D., Patna High Court). It also draws on whatsapp chatts extraction report and chatt relating image in three pages, made on 11th June, 2nd July and 19th of July, 2022 relates to listing of the case of the petitioner, being Criminal Misc. No.41872 of 2022, in a particular Bench. Krishna Gopal was interrogated in question-answer format, in which, he has clearly admitted that during the  birthday party of son of the Abhishek Agrawal at Maurya Hotel, he was made acquainted with the petitioner, while Namita Singh has stated that she is not acquainted with the petitioner but the electronic evidence and extracted whatsapp chatts of Namita Singh with Abhishek Bholpalaka, the co-accused, clearly establishes that she gave assurance to get the case listed before the particular Bench. Whatsapp chatts between her and the co-accused is explicit example of her active role in the nefarious game. Besides the above, there are much more credible and clinching evidence in the form of electronic evidence, which shows their participation in the alleged crime.

Justice Sharan observes, "When this has been happening right under the very nose of the High Court, I cannot afford to turn a Nelson’s eye to these activities and conveniently ignore it. It is high time for this Court to take serious view of this matter on administrative side about the conduct of these two officers, which conduct is unbecoming of Judicial Officers."

The order records that petitioner has served as Superintendent of Police at Jehanabad and Begusarai and Senior Superintendent of Police, Gaya. During his posting in Gaya, he was accused of intervening to release a seized liquor consignment and a criminal case was later lodged against him. It was in connection with this case that the petitioner was accused of hiring a conman, who tried to influence the probe by calling up Director General of Police, S.K. Singhal while posing as Justice Sanjay Karol, the then he Chief Justice of the High Court.

A Special Leave to Appeal (Criminal) No. 4496/2023 was filed in the Supreme Court arising out of impugned final judgment and order dated March 21, 2023 passed by the High Court. It came for hearing on April 21, 2023 before the bench of Justices Krishna Murari and Sanjay Karol. Uupon hearing, the court passed an order saying, "List before a Bench of which one of us (Sanjay Karol, J.) is not a member after obtaining suitable orders from Hon’ble the Chief Justice of India."

On May 9, 2023, this petition came up before Justices Krishna Murari and Bela M. Trivedi which listed it for hearing on May 12, 2023.

On May 12, 2023, the petition came up before Justices Krishna Murari and Sanjay Kumar. The Bench passed an order saying, "Considering the facts and circumstances, no coercive action shall be taken against the petitioner, in the meantime."

On August 10, 2023, the petition came up before Justices Aniruddha Bose, Sanjay Kumar and S.V.N. Bhatti bench. Its order reads: "Let rejoinder affidavit thereto be filed within two weeks. In the rejoinder affidavit, the petitioner shall file full particulars as regards the mobile phone bearing no.7783862271 including the handset thereof. Learned counsel for the State is also directed to produce the entire call detail records for the relevant period in respect of the said mobile phone....The interim order granted by this Court shall continue till the next date of hearing."

On September 20, 2023, the petition came up before Justices Aniruddha Bose and Bela M. Trivedi. Its order reads: "List on 03.10.2023. On that date learned counsel for the State shall apprise this Court as to whether the investigating agency has the mobile phone of the petitioner in their possession or custody. The interim order granted by this Court shall continue until the next date of hearing"

In compliance with the Court's order Aditya Kumar surrendered in a court in Patna on December 5, 2023 one day ahead of the deadline of December, 2023. He was sent to jail. He had been absconding after being suspended from service. Kumar is a suspended Indian Police Services (IPS) officer of the 2011 batch. The Bihar police had been searching for the absconding IPS officer after registration of a case against him by the Economic Offences Unit, Patna in October 2022. In 2022, a case of disproportionate assets of ₹1.37 crore was registered against him and four others by the State’s Economic Offences Unit on the charges of cheating, impersonation, extortion and other offences. 

On November 22, 2023, the petition came up before Justices Aniruddha Bose, Ahsanuddin Amanullah and Augustine George Masih. The 10-page long order of Supreme Court reads: "the Registrar General, Patna High Court is directed to submit, in a sealed cover, complete details of what action the High Court has taken, along with copies of relevant documents, pursuant to the reference made to ‘Hon’ble the Chief Justice for taking appropriate decision on the administrative side’ apropos all such facts which have been noted in the Impugned Judgment. Learned counsel for the investigating agency/Respondent No.2 shall also make available the entire up-to-date Case Diary, with the relevant portions, flagged, in a sealed cover, on the next date. The Report called for supra be submitted on/before 09.12.2023 by the Registrar General, Patna High Court. 13. As we have heard the matter in extenso, and after due deliberation, in the fitness of things, this case shall be treated as part-heard."  

Significantly, Supreme Court has sought the report of Chief Justice, High Court with regard to the administrative action against two judicial officers in question.