TaxTMI 
TaxTMI 
2011 (6) TMI 614
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.... 1860, which claims to be working in the filed of drug related programmes and policies since 2007. It is stated that its constituent members are non-government organisations from different parts of the country that have been supporting efforts to reduce drugrelated harms for the last thirty years. The said petitioner seeks to secure a just, rational and humane response to drug use and dependence. The said petitioner asserts that it works closely with the Government of India, the United Nations and international agencies such as the Global Fund to Fight AIDS, Tuberculosis and Malaria to promote the health and human rights of persons who use drugs. It has challenged the validity of Section 31-A of the NDPS Act, as it is vitally concerned with the issue of meting out of mandatory death penalty for drug offences, which is excessive, unscientific and inhumane. 3. The second petition is filed by the original accused No. 1 in NDPS Special Case No. 60 of 2002, which was tried and ended in finding of guilt recorded by the Special Judge under the NDPS Act. The said petitioner was also prosecuted and convicted in connection with offences under Sections 8(c), 20 (B) read with Section 2....
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....nd for Control of Drugs Abuse to meet the expenditure incurred in connection with the measures for combating illicit traffic and preventing drug abuse; (ii) to bring certain controlled substances which are used for manufacture of Narcotic Drugs and Psychotropic Substances under the ambit of Narcotic Drugs and Psychotropic Substances Act and to provide deterrent punishment for violation thereof; (iii) to provide that no sentence awarded under the Act shall be suspended, remitted or commuted; (iv) to provide for pre-trial disposal of seized drugs; (v) to provide death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs; (vi) to provide for forfeiture of property and a detailed procedure relating to the same; and (vii) to provide that the offences shall be cognizable and non-bailable." (emphasis supplied) 6. As aforesaid, the original Section 31-A has been amended in 2001 by Amendment Act 9 of 2001. The Statement of Objects and Reasons for the said amendment reads thus:- "The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for var....
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....s:- "Death penalty for certain offences after previous conviction:- (1) Notwithstanding anything contained in section 31, if any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under section 19, section 24, section 27-A and for offences involving commercial quantity of any narcotic drug or psychotropic substance, is subsequently convicted of the commission of or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence relating to,- (a) engaging in the production, manufacture, possession, transportation, import into India, export from India or transshipment, of the narcotic drugs or psychotropic substances specified under column (1) of the Table below and involving the quantity which is equal to or more than the quantity indicated against each such drug or substance, as specified in column (2) of the said Table: Particulars of narcotic drugs/ psychotropic substances Quantity (1) (2) (i) Opium 10 kgs (ii) Morphine 1 kg (iii) Heroin 1 kg (iv) Codeine 1 kg (v) Thebaine 1 kg (vi) Cocaine 500....
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....he table or is subsequently convicted for offence of financing, directly or indirectly, with regard to activities specified in clause (a), such person is liable to be sentenced with death. 9. According to the petitioners, neither the first nor the second offence involves intentionally taking of life of any person. Besides, the said offences do not, directly or indirectly, result in killing or lethal consequences, whereas the offending acts in respect of the first and the second offences are those which are carried out without or in contravention of a licence. Further, the first offence under Sections 19, 24 or 27-A is independent of any quantity of drugs. They are distinct and not akin or similar to the second offence. Notwithstanding this, the accused is sentenced to death, as capital punishment is the only penalty specified by Section 31-A, and there is no alternative sentence. It is in this backdrop the petitioners assert that the mandatory death penalty provided in Section 31-A renders the said provision unconstitutional and violative of Articles 14 and 21 of the Constitution of India. 10. The petitioners would also rely on the International Covenants which, acc....
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....ssion or commutation of sentence awarded under the NDPS Act, including the death sentence awarded under Section 31- A, the inevitable effect is that the person sentenced to death by virtue of Section 31-A has no remedy, even if his sentence is not administered within a reasonable time. That would, inevitably, expose such person to Death Row Syndrome on account of prolonged delay in carrying out execution, which is considered worse than execution itself. The Death Row Syndrome, being dehumanising, violates Article 21 of the Constitution. The respondents have failed to discharge the burden to establish that Section 31-A does not infringe Article 21 of the Constitution. It has merely proceeded on denial and on the premise that specifying sentence is essentially a legislative policy. 13. The petitioners have also attacked the validity of Section 31-A on the touchstone of Article 14 of the Constitution of India, which postulates that classification for the purpose of legislation must be reasonable. According to the petitioners, the distinction between persons covered by law and those left out of it should be based on an intelligible differentia; and that differentia must have a ....
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.... when the actual quantity of drugs, such as opium, which can be a mixture, is less than the specified quantity of 10 kg. As a result, the application of Section 31-A would be arbitrary and violative of Article 14 of the Constitution. 15. According to the petitioners, the death penalty for drug crimes is disproportionate, for which reason, it is opposed to the tenets of Articles 14 and 21 of the Constitution. Mandatory death penalty is opposed to the constitutional obligation to protect the right to life of persons accused of drug crimes. According to the petitioners, the narcotic drugs and psychotropic substances are not abhorrent, per se. They serve genuine medical and scientific needs of the community, and, as such, are beneficial to society. Engaging in the production, manufacture, possession, transportation, import and export or transshipment of narcotic drugs and psychotropic substances, even in the quantities specified in the table to Section 31-A, is not, per se, illegal. Those activities are penalised, when they are carried out without a licence, or in contravention of the terms and conditions prescribed in the licence. According to the petitioners, the mere absence....
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....e petitioner. On that day, however, the petitioner/ original accused No. 1 was not convicted of offence specified under Section 19, 24 or 27-A of the NDPS Act, with the result that Section 31-A was clearly inapplicable. In the present judgment, however, we would confine the discussion only on the question of validity of Section 31-A of the NDPS Act and not its application. 20. As constitutional validity of the Central Legislation was put in issue, notice was issued to the Attorney General of India, who is now represented by the learned Additional Solicitor General. These petitions are opposed by the respondents. Although it was argued that the Court should not decide the question pertaining to the constitutionality of Section 31-A of the NDPS Act in a petition filed by the first petitioner- Society, which is in the nature of Public Interest Litigation, however, it is fairly accepted that the said challenge, in any case, will have to be answered in the second petition filed by the original accused No.1 in NDPS Case No. 60 of 2002, who has been convicted and sentenced to death penalty under Section 31-A of the Act. 21. The substance of the argument canvassed on behalf....
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....the same as commercial quantity provided for. 24. It is then contneded that the death sentence in Section 31-A provided for a second conviction is far less stringent than the mandatory death sentence for narcotics in several countries such as Bangladesh, Indonesia, Malaysia, Pakistan, Singapore and Thailand, where death sentence is provided for quantity of narcotics far less than the quantity of drugs specified in Section 31-A of the Act. It was argued that mandatory death penalty provided in Section 31-A is not violative of Articles 21 or 14 of the Constitution, as the same specifies the requirements of procedural due process. The classification made by Section 31-A is between first-time offender and repeat offender engaged in dealing with huge quantity of drugs. It is reasonable and is based on intelligible differentia. It has nexus with the objects of the Act, viz., stricter control and deterrence in relation to narcotic crimes - more heinous than murder and anti-social in nature. The classification between Section 31 and 31-A is also rational, given the nature of repeat offences set out in Section 31-A. It is contended that the proportionality of punishment in cases of ....
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....tute constitutional and the other making it unconstitutional, the former should be preferred. It was submitted that the Court must make every effort to uphold the constitutional validity of a statute, even if that requires giving the statutory provision a strained meaning or narrower or wider meaning than what appears on the face of it. The Court should declare a statute to be unconstitutional only when all efforts to uphold the constitutional validity fails. At the end, alternative argument is addressed that, in the event the Court were to hold that Section 31-A of the Act is unconstitutional, in that case, the expression 'shall' in Section 31-A, which is indicative of death penalty as mandatory, be read as 'may'. In that case, the legislation will be saved, and the Court will retain its sentencing discretion not to award death sentence in appropriate cases, and, instead, award sentence of imprisonment, as provided in Section 31 of the NDPS Act. Discretionary death sentence will preserve the judicial discretion in sentencing. The punishment provided in Section 31 can be read as alternative to death sentence under Section 31-A. It was submitted that, following the analogy, where a ....
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....sion that the Indian Penal Code, particularly those of its provisions which do not have a direct impact on the rights conferred by Article 19(1), is not a law imposing restrictions on those rights, have not been overruled or rendered bad by the subsequent pronouncements of this Court in Bank Nationalisation case or in Maneka Gandhi's case. For instance, the proposition led down by Kania, C.J., Fazl Ali, Patanjali Sastri, and S.R.Das, JJ. that the Indian Penal Code particularly those of its provisions which cannot be justified on the ground of reasonableness with reference to any of the specified heads, such as "public order" in clauses (2), (3) and (4), is not a law imposing restrictions on any of the rights conferred by Article 19(1), still holds the field. Indeed, the reasoning, explicit or implicit, in the judgments of Kania, C.J., Patanjali Sastri and S.R.Das, JJ. that such a construction which treats every section of the Indian Penal Code as a law imposing Restriction' on the rights in Article 19(1), will lead to absurdity is unassailable........." 29. On further analysing the other decisions, the Apex Court proceeded to observe in paragraphs 58 and 60 as follows:- &nb....
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.... validity of Section 302 of the Penal Code which prescribes death or imprisonment for life for murder. In paragraphs 61 and 62, the Court observed thus, which is of some significance to consider the challenge:- "61. Now, let us apply this test to the provisions of the Penal Code, in question. Section 299 defines 'culpable homicide' and Section 300 defines culpable homicide amounting to murder. Section 302 prescribes death or imprisonment for life as penalty for murder. It cannot, reasonably or rationally, be contended that any of the rights mentioned in Article 19(1) of the Constitution confers the freedom to commit murder or, for the matter of that, the freedom to commit any offence whatsoever. therefore, penal laws, that is to say, laws which define offences and prescribe punishment for the commission of offences do not attract the application of Article 19(1). We cannot, of course, say that the object of penal laws is generally such as not to involve any viola-Bon of the rights conferred by Article 19(1) because after the decision of this Court in the Bank Nationalisation case the theory, that the object and form of the State action alone determine the extent of protecti....
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.... established by law and makes a further provision prescribing five years' imprisonment as punishment for such an offence. Such a law (i.e. its provision defining the offence) will directly and inevitably impinge upon the right guaranteed under 'clause' (a) of Article 19(1). Therefore, to be valid, it must pass the test of reasonableness embodied in Clause (2) of the Article. But this cannot be said in regard to the provisions of the Penal Code with which we are concerned." 31. The offences referred to in Section 31-A of the NDPS Act cannot be classified as crimes mala in se. Those offences, however, are crimes mala prohibita, as it embraces things prohibited by statute. Inasmuch as the enactment of the NDPS Act is intended to make provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, which is evident from the Preamble of the Act itself. 32. In paragraph 67 of the same judgment, the Court observed thus:- "67. Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial restraint, a ....
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....ent to say that the very fact that persons of reason, learning and light are rationally and deeply divided in their opinion on this issue, is a ground among others, for rejecting the petitioner's argument that retention of death penalty in the impugned provision, is totally devoid of reason and purpose. If, notwithstanding the view of the Abolitionists to the contrary, a very large segment of people, the world over, including sociologists, legislators, jurists, judges and administrators still firmly believe in the worth and necessity of capital punishment for the protection of society, if in the perspective of prevailing crime conditions in India, contemporary public opinion channelized through the people's representatives in Parliament, has repeatedly in the last three decades, rejected all attempts, including the one made recently, to abolish or specifically restrict the area of death penalty, if death penalty is still a recognised legal sanction for murder or some types of murder in most of the civilised countries in the world, if the framers of the Indian Constitution were fully aware as we shall presently show they were of the existence of death penalty as punishment for murde....
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...., the Court must pay due regard both to the crime and the criminal. Secondly, in paragraph 204 in Bachan Singh's case, the Court noted that it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and Society, public order and the interests of the general public, may provide 'special reasons' to justify the imposition of the extreme penalty on the person convicted of such a heinous murder. But it was not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. 37. In paragraph 209, the majority view in Bachan Singh's case (supra) summed up thus: "209. ............. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of....
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....e ingredients of murder are present and the object is to commit robbery inside the train, they practise social injustice and imperil social security to a degree that death penalty becomes a necessity if the crime is proved beyond doubt. There may be marginal exceptions or special extenuations but none where this kind of dacoity or robbery coupled with murder becomes a contagion and occupation, and social security is so gravely imperilled that the fundamental rights, of the defendant become a deadly instrument whereby many are wiped out and terror strikes community life. Then he 'reasonably' forefeits his fundamental rights and takes leave of life under the law. The style of violence and systematic corruption and deliberately planned economic offences by corporate top echelons are often a terrible technology of knowingly causing death on a macro scale to make a flood of profit. The definition of murder will often apply to them. But because of corporate power such murderous depradations are not charged. If prosecuted and convicted for murder, they may earn the extreme penalty for taking the lives of innocents deliberately for astronomical scales of gain." (emphasis supplied) ....
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....Constitution, the argument is that the said provision is unfair, unjust and unreasonable. Article 21 of the Constitution guarantees that no person shall be deprived of his right to life and personal liberty, except according to procedure established by law. The expression "procedure established by law" pre-supposes that the law must itself be substantively fair, just and reasonable. 42. Reliance has been placed on Article 6 of the ICCPR which, according to the petitioners, grants protection against the arbitrary extinction of the right to life. It provides that every human being has the inherent right to life. That right shall be protected by law. Further, no one shall be arbitrarily deprived of his right. According to the petitioners, the Indian Constitution is ingrained by humanistic values that respect the sanctity and dignity inherent in life, whereas capital punishment puts an end to life, which is final and irreversible. For that reason, the death penalty must be only an exceptional measure, as it is cruel, inhuman and degrading punishment and affronts human dignity. In support of this submission, reliance is placed on the following authorities:- (i) Indian ju....
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.... to observance of procedure such as pre-sentence hearing - giving right to the accused person to be heard on the question of sentence, which is a salutory condition for a fair trial. Further, the sentencing of accused must be individualised and ought to depend on facts of each case. The Courts are obliged to consider the aggravating and mitigating factors associated with the offence as well as the offender. The offenders are of what circumstances, whether young or old, sick or mentally infirm, socially or economically disadvantaged or acting under duress or pressure, are relevant factors for determining the punishment to be imposed. On account of standardised, mandatory death penalty provided by Section 31-A of the NDPS Act, these factors would be rendered irrelevant. In a given case, the person may be a drug carrier, in another, an intermediary or the organiser of the crime. They cannot be pulled together so as to apply the standardised, mandatory death penalty sentence merely because he happens to be a repeat offender of the specified activities and dealing in stated quantity of the drugs. As a result of mandatory death penalty under Section 31-A, the Court is not required to ass....
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....ath penalty, per se, does not violate Article 21 of the Constitution at all. Instead, the said Section 31-A of the NDPS Act specifies the requirement of procedure due process. According to the respondents, the argument of the petitioners regarding non-compliance of certain procedure is essentially in respect of substantive due process, which is not part of our Constitution. Moreover, it has been repeatedly held by the Apex Court that death penalty, per se, under Section 31-A does not inflict a cruel and unusual punishment, nor does it degrade or lower the dignity of the individual. 47. Having given thoughtful consideration, it appears that the abovesaid contention regarding Section 31A of the NDPS Act being violative of Article 21 of the Constitution pressed into service on behalf of the petitioners deserves acceptance. In the case of Mithu, the provision of Penal Code containing similar standardised, mandatory death penalty was put in issue. The validity of Section 303 of the Indian Penal Code was challenged, inter alia, being violative of Article 21 of the Constitution. Even in that case, the argument was that Section 303 creates an absolute liability in ignorance of seve....
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....epriving a person of his life or liberty is fair, just and reasonable..........." 48. In the context of the stand taken by the respondents in that case that the ratio of Bachan Singh would apply; and the question as regards validity of Section 303 must be treated as concluded by that decision, the Court noted that the same suffered from two defects: firstly, because it is founded on misunderstanding of the decision in Bachan Singh, and secondly, there was an essential distinction between the provisions of Sections 302 and 303. The Court went on to observe that the majority decision in Bachan Singh did not lay down any abstract proposition that "death sentence is constitutional", that is to say, that "it is permissible under the Constitution to provide for the (mandatory) sentence of death". Instead, the question which arose for consideration in Bachan Singh was: whether Section 302 of the Indian Penal Code, which provides for the sentence of death as one of the two alternative sentences is valid? While answering the said issue, the Court opined that the majority in Bachan Singh's case concluded that Section 302 of I.P.C. is valid for three main reasons: firstly, that the de....
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....le basis for giving differential treatment to an accused who commits the offence of murder whilst under a sentence of life imprisonment. Can he be put in a special class or category as compared with others who are found guilty of murder and be subjected to hostile treatment by making it obligatory upon the court to sentence him to death? In other words, is there a valid basis for classifying persons who commit murders whilst they are under the sentence of life imprisonment, separately from those who commit murders whilst they are not under the sentence of life imprisonment, for the purpose of making the sentence of death obligatory in the case of the former and optional in the case of the latter? Is there any nexus between such discrimination and the object of the impugned statute? These questions stem principally from the position that Sectio n 303 makes the sentence of death mandatory. That position raises certain side issues which are equally important. Is a law which provides for the sentence of death for the offence of murder, without affording to the accused an opportunity to show cause why that sentence should not be imposed, just and fair? Secondly, is such a law just and f....
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.... determine how grave the offence, without having regard to the circumstances in which it was committed, its motivation and its repercussions. The Court opined that the Legislature cannot make relevant circumstances irrelevant, deprive the Courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death. It also held that equity and good conscience are the hallmarks of justice. This statement of law is still holding the field. At the end of paragraph 12, the Court opined as under:- "12. .............The mandatory sentence of death prescribed by Section 303, with no discretion left to the court to have regard to the circumstances which led to the commission of the crime, is a relic of ancient history. In the times in which we live, that is the lawless law of military regimes. We, the people of India, are pledged to a different set of values. For us, law ceases to have respect and relevance when it compels the dispensers of justice to deliver blind verdicts by ....
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....standardised, mandatory death penalty, without regard to the gravity of the offence or the circumstances in which the offence was committed by the offender. 55. While delivering separate but concurring opinion, Justice Chinnappa Reddy pithily observed as follows:- "23. Sectio n 303 , Indian Penal Code, is an anachronism. It is out of tune with the march of the times. It is out of tune, with the rising tide of human consciousness. It is out of tune with the philosophy of an enlightened Constitution like ours. It particularly offends Article 21 and the new jurisprudence which has sprung around it ever since the Banks Nationalisation case freed it from the confines of Gopalan. After the Banks Nationalisation case, no article of the Constitution guaranteeing a Fundamental Right was to lead an isolated existence. Added nourishment was to be sought and added vigour was to be achieved by companionship. Beg, C.J., said it beautifully in Maneka Gandhi: Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme i....
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....on as he pronounces the accused guilty of the offence. So final, so irrevocable and so irrestitutable is the sentence of death that no law which provides for it without involvement of the judicial mind can be said to be fair, just and reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive. Section 303 is such a law and it must go the way of all bad laws. I agree with my Lord Chief Justice that Section 303, Indian Penal Code, must be struck down as unconstitutional." (emphasis supplied) 56. In the recent decision of the Apex Court in the case of Rameshbhai Rathod (supra), the Apex Court (bench of two Judges) in paragraph 106, re-stated the legal position as follows:- "106. Therefore fairness, justice and reasonableness which constitute the essence of guarantee of life and liberty epitomised in Article 21 of the Constitution also pervades the sentencing policy in Sections 235(2) and 354(3) of the Code. Those two provisions virtually assimilate the concept of "procedure established by law" within the meaning of Article 21 of the Constitution. Thus, a strict compliance with those provisions in the way it was interpreted d in Bachan Singh havi....
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....ating into a bed of procrustean cruelty. Having said this, the Court, even in paragraph 174 of the same judgment on which emphasis was placed by the respondents, went on to observe that it was "sound legislative policy" of the Parliament of not providing for standardised mandatory punishment. This means that judicial discretion in sentencing in the matter of life and death is the hallmark of a just and fair procedure within the meaning of Article 21 of the Constitution. It is, therefore, difficult to agree with the submission of the respondents that the observation in this decision validates the provision providing for mandatory death penalty, such as Section 31-A of the NDPS Act. Suffice it to observe that the opinion in Bachan Singh's case, as understood in Mithu's case, is that equity and good conscience are the hallmarks of justice, and no discretion left to the Court to have regard to the circumstances which led to the commission of the crime, is a relic of ancient history. In other words, the use of wise and beneficent discretion by the Court in a matter of life and death after reckoning the circumstances in which the offence was committed and that of the offender is indispen....
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....onable. 60. As aforesaid, the legal position expounded in the case of Bachan Singh and Mithu is still holding the field. The deficiency regarding the fairness and reasonableness noticed by the Apex Court in the case of Mithu squarely apply to Section 31-A of the NDPS Act. Even in Section 31-A of the NDPS Act, there is no option to the Court, but to award preordained death penalty. The death penalty provided for is not an alternative sentence for the repeat offence of specified type. The sentencing under Section 31-A is standardised, mandatory death penalty, and not individualised sentencing, after giving due weightage to the aggravating and mitigating factors associated with the offence and the offender. Further, even though the sentence provided under Section 31-A is of death penalty, the Court is not required to record special reasons, unlike the other crimes under the ordinary law or, for that matter, other offences under the provisions of the NDPS Act, as is required under Section 354(3) of the Code. Similarly, the pre-sentence hearing as required by Section 235(2) of the Criminal Procedure Code has been rendered irrelevant and an empty formality only in so far as the o....
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....ph 9; Jasbir Singh v. Vipin Kumar Jaggi reported in AIR 2001 SC 2734. It was argued that death sentence under Section 31-A is provided for a second conviction, which is far less stringent than mandatory death sentence for narcotics in several countries such as Bangladesh, Indonesia, Malaysia, Pakistan, Singapore and Thailand. In those countries, mandatory death sentence is provided where the quantity of narcotics is far less than the quantity of narcotics provided for in Section 31-A of the Act. 63. There is no reason to doubt that the offences relating to narcotic drug or psychotropic substances are more heinous than culpable homicide. For, the latter affects only an individual, while the former affects and leaves its deleterious effect on the society, besides crippling the economy of the nation as well. At the same time, we cannot be oblivious of the scheme of the NDPS Act. It was enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from or used in illicit traffic in narcotics drugs and psychotropic substances, to implement the provisions ....
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.... Section 31-A of the NDPS Act cannot be suitably dealt with under the alternative enhanced punishment under Section 31 of the Act, which also applies to repeat offenders. As held in Mithu's case, it is too late in the day to contend that it is for the Legislature to prescribe the procedure and for the Courts to follow it; that it is for the Legislature to provide the punishment and for the Courts to impose it. If the law made by the Legislature divests the Court of the use of its wise and beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and that of the offender, and without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. The fact that Section 31-A deals with specific cases for offences involving quantity which is equal to or more than the quantity indicated against the specified drugs or substances does not make the requirement of weighing the aggravating and mitigating circumstances of the offence and also of the offender, less relevant. 64. Our attention was also invited to mandatory death sentence provided in other statutes such as Section 27(3) of the Arm....
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....the Municipal law, the same shall prevail. 67. It is then contended that even if the Court were to convict and award death penalty, invariably, in India, the execution thereof does not take place within a reasonable time. That results in the accused suffering the agony of Death Row Syndrome. Moreover, in the NDPS Act, the suspension, remission or commutation of sentences awarded under the NDPS Act, including the death sentence awarded under Section 31-A of the Act, is forbidden. Relying on the exposition in Ediga Anamma v. State of Andhra Pradesh, reported in (1974) 4 SCC 443, paragraph 15; T.V. Vatheeswaran v. State of Tamil Nadu, reported in (1983) 2 SCC 68, paragraphs 10, 11 and 20; Triveniben v. State of Gujarat, reported in (1988) 4 SCC 574, paragraph 2; and Catholic Commission for Justice and Peace in Zimbabve v. Attorney General and Ors., reported in (1993) 4 S.A. 2439, paragraphs 34 to 36, 49 to 57 and 120, it was contended that penalty provided in Section 31-A would subject the convicts to cruel and inhuman treatment and encroach upon protection accorded under Article 21 of the Constitution. In the first place, delay in execution of death penalty is essentially on ....
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....on extends to one half of the maximum term of imprisonment and one half of the maximum amount of fine for that offence. Whereas, the penalty under Section 31-A is death. According to the respondents, however, the classification made by Section 31-A between first-time offenders and repeat offenders is reasonable, based on intelligible differentia, and has a nexus with the object of the NDPS Act, viz., stricter control and deterrence in relation to narcotic crime - more heinous than murder and anti-social in nature. Further, the classification is also rational, given the nature of repeat offences covered by Section 31-A of the Act. Besides, the proportionality of punishment is a matter for Parliament to decide as policy, and the Courts cannot sit in substantive judgment over the Parliament's legislative determination of what punishment is appropriate. In that sense, there is no encroachment on the domain of the Judiciary, as is sought to be contended. 70. These arguments will have to be tested in the context of the sweep of Sections 31 and 31-A, respectively. Insofar as Section 31, it deals with persons who have been convicted of the commission of, or abetment to commit or ab....
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....vities referred to in Sections 19, 24 and 27-A of the Act, as the case may be, which are the root cause for the unabated trade in narcotic drugs and psychotropic substances. Suffice it to observe that there is not only intelligible differentia but the differentia has a rational nexus to the object sought to be achieved by the law. It cannot be overlooked that the quantity of drugs specified in column (2) of the table under Section 31-A for the repeat offence is in multiples of the commercial quantity specified by the Act. That pre-supposes that the offender is incorrigible and is unabatedly indulging in the prohibited activities, which would have deleterious effect on the society as a whole. The fact remains that the sweep of Section 31-A of the Act has been limited to the crimes referred to in clauses (a) and (b) of sub-section (1) thereof. 71. It was further argued that the death penalty provided in Section 31-A for crimes in relation to the drugs quantity specified in column (2) of the table in the said section is disproportionate. On the doctrine of proportionality which is implicit in Articles 14 and 21 of the Constitution, it will necessarily follow that Section 31-A ....
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....thebaine and their salts; (e) all preparations containing more than 0.2% of morphine or containing diacetylmorphine 250 gms 1 kg (iii) Heroin 2 (xvi) opium derivative means-(d) diacetylmorphine, alkaloid also known as diamorphine or heroin and its salts; and (e) all preparations containing more than 0.2% of morphine or containing diacetylmorphine 250 gms 1 kg (iv) Codeine 2(xvi) opium derivative means-(c) phenenthrene alkaloids, namely morphine, codeine, thebaine and their salts; 1 kg 1 kg (v) Thebaine 2(xvi) opium derivative means-(c) phenenthrene alkaloids, namely morphine, codeine, thebaine and their salts; 100 gm 1 kg (vi) Cocaine 2 (v) coca derivative means-(c) cocaine, that is, methylester or benzoyl-ecgonine and its salts and (d) all preparations containing more than 0.1% cocaine 100 gm 500 gm (vii) Hashish 2(iii) cannabis hemp means-(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink pre....
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....he table, in particular with regard to drug at serial No. (iv), i.e., Codeine. It is common ground that the commercial quantity of the said drug, Codeine, is specified as 1 kg. Even in Section 31-A of the Act, the quantity specified against the said drug is also 1 kg. To re-assure ourselves that, unlike in other cases, the drug quantity specified in column (2) to the table is in multiples of the commercial quantity, we perused the Government publication of the Act. Even there, the quantity against drug at serial No. (iv) is mentioned as "1 kg.". In this context, it was argued by the counsel for the petitioners that it reflects the casual and negligent approach of the Legislature in drafting and enacting Section 31-A of the Act. Besides, it was argued that, as per the Notification issued by the Ministry of Finance, Department of Revenue, dated 18th November, 2009, it may result in a piquant situation in that, admittedly, the drug Codeine is a mixture. By definition 2(xx), the drugs listed in the table to Section 31-A would include mixture or preparation. As a result of the Notification dated 18th November, 2009, the entire mixture or solution will have to be reckoned, and not just i....
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....s left out, it does not come in the way of proceeding against a person, who has indulged in activities concerning quantity of drugs or substances, which is equal to or more than the quantity indicated against the concerned drugs or substances as specified in column (2) of the table in Section 31-A of the Act. It is also possible that the person has acted against the licence or without the licence. The argument that such activity is not abhorrent, per se, or that the drugs and psychotropic substances serve genuine medical and scientific needs of the community is also totally misplaced. That does not mean that "in a given case" keeping in mind the circumstances in which the offence has been committed and that of the offender, the stated activity should be visited with lighter punishment or only enhanced sentence, particularly when it is a case of repeat offence under the NDPS Act in relation to quantity of drugs equal to or more than the quantity specified in column (2) of the table. 79. The argument that the drugs do not involve taking of life also does not commend to us. We are more than bound by the dictum of the Apex Court that offence relating to narcotic drugs or psycho....
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....ed the challenge to Section 31-A of the NDPS Act, being violative of Article 14 of the Constitution. However, as we find merits in the challenge to the said provision, being violative of Article 21 of the Constitution, as it provides for mandatory death penalty, the appropriate relief would be to declare Section 31-A as unconstitutional and void ab initio. Upon such declaration, the said provision would cease to be on the statute book. As a necessary consequence thereof, the decision of the trial Court of convicting the petitioner in the second petition for offence under Section 31-A of the NDPS Act and awarding death penalty therefor would become non est in the eyes of law, in spite of the finding of guilt recorded by the trial Court against the petitioner for having indulged in activities covered by Section 31-A of the Act. Concededly, the activities of the petitioner-convict would also constitute offence under other provisions of the Act and could be proceeded as per law, including for imposing enhanced punishment for offences after previous conviction. We are conscious of the fact that we should not be concerned about the consequences of the declaration. 82. However, we....
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....position of the Apex Court in Delhi Transport Corporation v. DTC Mazdoor Congress, reported in (1991) Supp (1) SCC 600, paras 120 and 249. According to the petitioners, instead of reading down Section 31-A as suggested by the respondents, the appropriate course would be to remand the cases against the concerned accused convicted and sentenced under Section 31-A to the trial Court for re-hearing only on the question of sentence under Section 31 of the NDPS Act. 84. Having considered the alternative argument, we find merits in the submission of the respondents that the provision contained in Section 31A can be treated as discretionary provision, instead of mandatory death penalty. In that, the expression 'shall' be read as 'may'. That would save the provision from being unconstitutional and such a course would be legitimate. On such interpretation, the Court can exercise its judicial discretion to impose punishment of death penalty depending on the facts and circumstances of each case. Inasmuch as, in spite of finding of guilt with regard to the activities indulged by the concerned accused covered by Section 31-A of the Act, if the Court were to be convinced that the enhanced....
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....alty provided for in Section 31-A by recording special reasons therefor. We have, therefore, no hesitation in accepting the alternative argument of the respondents that the provisions contained in Section 31-A of the NDPS Act providing for mandatory death penalty be, instead, read as directory to save the same from being unconstitutional. 86. The argument of the petitioners is, however, that the language of Section 31-A would not permit such interpretation. There is no merit in this submission. Indeed, the section opens with the phrase "Notwithstanding anything contained in Section 31", which pre-supposes that, if the offence is covered by Section 31-A of the Act, the regime provided in Section 31 will be inapplicable. However, the effect of this non-obstante clause is to empower the Court to impose death penalty in respect of offences specified in Section 31-A, even though the same may be in the nature of repeat offences, and could ordinarily be dealt with under Section 31 of the Act. Thus understood, reading down the expression 'shall' in Section 31-A as aforesaid, it would not and cannot be an impediment to proceed against the accused guilty of offence specified by Secti....