Justice Ahutosh Kumar bench aquits Brind Manjhi of murder charges

Upon hearing the counsel for the appellant and the respondent in Brind Manjhi v. State of Bihar, Justices Ashutosh Kumar and Khatim Reza bench of Patna High Court gave the benefit of doubt to the appellant and set aside the judgment of conviction and the order of sentence by Additional Session Judge XIII, Patna. The appellant was acquitted of the charges raised against him. He was in custody for about twelve and half years by now. The Court directed him to be released forthwith from jail, if not required or detained in any other case. A copy of the judgment is required to be dispatched to the Superintendent of the concerned Jail for compliance and record. The appellant was convicted under Sections 302 and 201 of the Indian Penal Code (IPC) vide judgment dated October 21, 2019. By this order he was sentenced to undergo rigorous imprisonment for life, to pay a fine of Rs. 20,000/- under Section 302 IPC and RI for three years, to pay a fine of Rs. 5,000/-under Section 201 IPC. The case arose out of PS. Case No.-123 Year-2011, Thana: Patliputra, Patna.

The sentences were ordered to run concurrently. The appellant is the sole person put on trial for having murdered a ten year old boy. The mother of the deceased, viz., Manju Devi had lodged the FIR on June 25, 2011 at about 11:15 AM, alleging that on the previous day, at about 6 O'clock in the evening the deceased had brought some articles from the Kirana shop and had thereafter gone out to the house to play as also to pick up rags. When the child did not return after two hours, a search was made for him but to no avail. 

On June 25, 2011, she learnt that the dead body of a boy is lying near Rajapur Bridge near the brick-kiln of one Puneshwar Singh. The young boys of the village and her father-in-law/Sidheshwar Manjhi went to see the dead body and finding it to be the dead body of her son, brought it back. About 15 days prior to the occurrence, the appellant, her neighbour, had fought with the family and had also threatened that he shall decimate the entire family. Therefore, she suspected that the appellant along with his associates had killed the deceased by puncturing him with sharp/ pointed weapon.

The mother of the deceased found that he had been attacked at many places on his neck by a pointed object. She had also participated in the blockade of the road. She was told that the appellant had called the deceased and had lured him for giving tomatoes and biscuits. She was candid enough to tell the Court that neither she nor anyone of the grass-scrapers, who had first seen the dead-body lying on the sands, had seen the act of killing.

From the deposition of the investigator, it became very clear to the Court that while the dead-body was kept on the road and the traffic was blockaded, there was no reference of the appellant as the possible perpetrator of the crime. All that the crowd was asking for was compensation for the family of the deceased. 

The Court noted that the mother of the deceased did not have any suspicion on the appellant when at 10 O’clock in the morning of June 25, 2011, when she had submitted the missing report. It appears that it was only later that the family of the deceased realised that there had been some dispute in the past, a fortnight ago, when the appellant had threatened to decimate the family.

The Court observed: "It could only be a bluster or a brutum fulmen and nothing more." The judgement concluded that "We find that beyond suspicion, there is no other material to justify the conviction of the  appellant." The judgement was authored by Justice Ashutosh Kumar.

Patna High Court publishes Action Plan to reduce cases pending for two- three decades in district courts

Worried about the potential erosion of public confidence in the judiciary that can arise from delays in delivery of justice, Supreme Court Committee for "Model Case Flow Management Rules for Trial Courts, District Appellate Courts , High Courts and to suggest a Plan for Reduction of Arrears in the High Courts and District Courts" has expressed concern regarding huge number of cases "which have been pending for long periods, some for over two and even three decades."

The Action Plan for managing and reducing case arrears in district judiciary incorporates the following principles:

a) Prioritization of Long-Standing Cases: Special emphasis on identifying and resolving cases that have been pending for excessively long periods, such as over 10, 20 or 30 years. 

b) Accelerating the Progression of Cases to Finalization: This principle emphasizes the urgency of moving cases towards a timely conclusion. [It involves not only prioritizing the resolution of long-standing cases,
particularly those over I 0, 20 or 30 years old, but also ensuring that newer cases do not age into these categories.

c) Equitable Case Distribution: Ensure a balanced distribution of cases among judges, taking into consideration the complexity and nature of cases, to prevent overburdening and promote efficient resolution.

d) Effective Handling of Unready and Stayed Cases: Implement strategies for expediting and managing cases that are unready or are stayed by Higher Courts.

e) Effective Utilization of Alternative Dispute Resolution: Encourage the use of mediation and Lok Adalat to resolve disputes with more effective pre-Lok Adalat sittings in old cases.

f) Use of Technology: Leverage NJDG and related tools for better case management, including case tracking systems, to enhance efficiency.

g) Managing Undated Cases: Address the issue of 'undated' cases. Implement measures to ensure that cases do not remain without a scheduled date, facilitating their timely progression and resolution.

h) Adequate Human Resources Support to Judicial Officers: Strengthen the district judiciary by providing sufficient ministerial staff support to judicial officers. This includes ensuring that courts have stenographers, and other essential staff who can assist m case management and other administrative duties.

i) Regular Monitoring and Review: Implement a system for the continuous monitoring of case progress and regular review meetings to assess the effectiveness of action plan.

j) Stakeholder Engagement: Involve bar association and agencies to address procedural delays.

k) Responsive Adaptation: Tailor strategies to meet the specific circumstances of each district, allowing for flexibility and adaptation of the action plan to local scenarios.

The 17 page long Action Plan for Arrears Reduction in District Judiciary (APAaR-DJ) states that "this situation calls for an effective approach to address the issue of delays. lt also noticed that a substantial number of cases are currently in 'unready' state for various procedural reasons, thereby delaying their resolution. Additionally, the prevalence of cases that are stayed by higher courts adds another layer of complexity to the challenge of reducing pendency."

Supreme Court's anger, Bihar Governor and Public Premises (Eviction of Unauthorised Occupants) Amendment Act

Bihar Governor Buta Singh vacated the bungalow in New Delhi after the rebuke from the Supreme Court's bench of Justices B. N. Agarwal and A. K. Mathur on October 24, 2005. The court had asked the government to “throw out” illegal occupants from the government's bungalows while hearing a case related to overstaying by several politicians on government premises in violation of rules and regulations. Buta Singh vacated the 9 Lodhi Estate house and formally handed it over to authorities. Justice Agarwal had observed: “Buta Singh is Governor of Bihar. What is he doing here? How can he be occupying a house here. Throw him out.” 

The government had submitted two lists with 465 names of VIP defaulters to the Court. The first list included those who were staying illegally and the other gave names of dignitaries who were living in houses bigger than their entitlement. 

Buta Singh got singled out as his name figured on top of the list which was submitted to the Court. The controversial Governor was facing criticism from the Opposition parties over his recommendation to dissolve the hung Bihar Assembly. Notably, Prime Minister had expressed displeasure in public about Bihar Governor’s role. 

Notably, the government was not able to file its detailed affidavit on the issue of making the offence of trespassing under Section 441 of the IPC cognisable and non-bailable to give more teeth to the government agency in dealing with the problem. Justice Agarwal headed bench had earlier asked the central and state governments to make their stand clear on making Section 441 a cognisable and non-bailable offence – as Orissa and Uttar Pradesh have done.

In July 2023, Bihar government imposed penalties on several MLAs, who held ministerial berths for “overstaying” at bungalows meant for ministers, even after allotment of houses to them as legislators. 

Significantly, Parliament has cleared a legislation—Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 2019 has been enacted for speedy eviction of unauthorised occupants of government accommodation. It came into effect from September 16, 2019. The Public Premises (Eviction of Unauthorised Occupants) Amendment Rules, 2019 were notified on September 25, 2019. The Ministry of Housing and Urban Affairs has been allocated the task of its implementation of this law under the First Schedule of the Government of India (Allocation of Business) Rules, 1961 as amended up to January 5, 2022. 

Justice Agarwal retired in October 2009 after a nine-year tenure. Fourteen years after his rebuke, this law was enacted to deal with the eviction of unauthorised occupants. It is not clear as to whether this law has been effective on the ground. There is a need for a White Paper on the implementation of this law to ascertain whether it is being implemented without discrimination based on party affiliations.

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. 

Criminal appeal of Jharkhand residents in NDPS case related to 9 quintal of ganja, listed for hearing on April 25

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 Ara 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 reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section (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 (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.    

 

Chief Justice appoints Shweta Kumari Singh as the first editor of Patna High Court

Shweta Kumari Singh has been appointed editor, Patna High Court by the outgoing Chief Justice of the High Court. The editor is supposed to monitor all machine translation related activities with effect from the date she assumes charge of her office. She is the first editor of the High Court.

This appointment has been made subsequent to creation of one post of the Editor by the General Administration Department, Government of Bihar. A notification dated April 4, 2024 was issued by P. K. Malik, Registrar General, High Court in this regard. The editor has taken charge with effect from April 4, 2024.

Prior to her current appointment, she was Principal Judge, Family Court, Ara from August 2, 2023 till April 3, 2024. Before that she was Additional District and Sessions Judge Motihari  from May 11, 2022 to August 1, 2023. She was also Additional District and Sessions Judge, Ara from October 8, 2018 till May 10, 2022. She was recruited directly from the Bar. She was born on May 20, 1976. She is a law graduate. She is due to retire on May 31, 2036. 

Notably, Brajesh Kumar Singh, Additional District and Session Judge, Aurangabad and Mukesh Kumar, Additional Principal Judge, Katihar have been appointed as Sub-editors of the High Court by the Chief Justice with effect from April 4, 2024.