TaxTMI 
TaxTMI 
2011 (6) TMI 614
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....egistered under the Societies Registration Act, 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 offence....
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....for the following:- (i) to constitute a National Fund 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 Drug....
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....001, as is applicable to the case of the petitioner in the second petition, reads thus:- "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....
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....xport from India or transshipment, of narcotic drugs and psychotropic substances specified in column (1) of the table in quantity equal to or more than the specified quantity in column (2) of the 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 ....
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....nt, is substantively unfair, unjust and unreasonable. Further, the mandatory death penalty constitutes cruel, inhumane and degrading punishment. As Section 32-A of the NDPS Act forbids suspension, remission 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 ....
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....it would contradict the legislative intent of imposing penalties according to the quantity of narcotic or psychotropic drug involved; and a person would be liable to death sentence under Section 31-A, even 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, ....
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....convicted and sentenced under Section 31-A of the NDPS Act in respect of offence unravelled by the NCB officers on 13th February, 2002, when commercial quantity of charas was seized from the premises belonging to the 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 pe....
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....lauses (viia) and (xxiiia) of Section 2 of the NDPS Act. 23. Insofar as mixture at serial No. (iv) in the table in Section 31-A, i.e., Codeine, it is fairly accepted that the quantity specified is 1 kg., which is 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 mu....
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....e no manner of doubt about its unconstitutionality. The Legislature is the best judge of what is good for the community, by whose suffrage, it comes into existence. If two views are possible, one making the provision in the statute 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. Discretionar....
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....; "41. We have copiously extracted from the judgments in A.K.Gopalan case, to show that all the propositions propounded, arguments and reasons employed or approaches adopted by the learned Judges in that case, in reaching the conclusion 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 la....
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....te or collateral and is dependent upon factors which may or may not come into play, the anvil of Article 19 will not be available for judging its validity." 30. Having said this, the Apex Court proceeded to apply the test to consider the 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 generall....
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....law relating to them directly restricts or abridges such rights. The illustration given by Shri Sorabji will make the point clear. Suppose, a law is enacted which provides that it shall be an offence to level any criticism, whatever, of the Government 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....
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....leness in the light of Articles 19 and 21 of the Constitution, it is not necessary for us to express any categorical opinion, one way or the other, as to which of these two antithetical views, held by the Abolitionists and Retentionists, is correct. It is sufficient 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 ....
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....oted in paragraph 201 that, on conjoint reading of Section 354 (3) and 235(2) and other related provisions of the Code of 1973, it is quite clear that, for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, 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 b....
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....thal business is a. menace to social security and is, therefore, a violator of social justice whose extinction becomes necessary for society's survival. Supposing a murderous band of armed dacoits intentionally derails a train and large number of people die in consequence, if the 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 o....
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....their challenge to Section 31-A of the NDPS Act, being violative of Articles 14 and 21 of the Constitution of India. 41. Reverting to the challenge that the standardised, mandatory death penalty stipulated by Section 31-A of the NDPS Act being violative of Article 21 of the 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 lif....
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..... 806/1998, CCPR/C/70/D/806/1998, 12/05/2000), para 3.1 at pgs 2-3 and para 8.2 at pg 7 Pagdayawon Rolando v.Philippines [Communication No.1110/2002, UN Doc.CCPR/C/82/D/1110/2002, 8th December, 2002], para 3.1 at pg 4 and para 5.2 at pg 7 43. It is further argued that the Constitution permits deprivation of life, subject 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 ....
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....C 5 - paras 9 and 10; Jumman Khan v. State of U.P., reported in (1991) 1 SCC 752 - para 7; and Santosh Kumar Satishbhushan Biriyar v. State of Maharashtra, reported in (2009) 6 SCC 498 - para 138. 46. The respondents, however, would contend that there are sufficient procedural safeguards in the Criminal Procedure Code, and the death 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 Mi....
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....nbsp; "6. ...... But these examples serve to illustrate that the last word on the question of justice and fairness does not rest with the legislature. Just as reasonableness of restrictions under clauses (2) to (6) of Article 19 is for the courts to determine, so is it for the courts to decide whether the procedure prescribed by a law for depriving 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 consi....
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....s:- "9. The question which We had posed for our consideration at the beginning of this judgment was somewhat broad. In the light of the aforesaid discussion, that question narrows itself to a consideration of certain specific issues. The first and foremost issue which arises specifically for our consideration is whether there is any intelligible 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 t....
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....te the guarantee provided in Article 21 of the Constitution that the procedure established by law must be a just and fair procedure. In the same paragraph, the Court noted that the measure of punishment for an offence is not afforded by the label which that offence bears. But the gravity of the offence furnishes the guidelines for punishment, and one cannot 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 reg....
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.... of a mandatory sentence of death, which was relevant for testing the validity of the provision on the touchstone of Article 14 of the Constitution. The Constitution Bench struck down Section 303 also on the ground that it violated Article 21 of the Constitution, as it took away the wise and beneficent judicial discretion in a matter of life and death by providing for 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 ....
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....death even as an alternative penalty for murder. Even so the Court took care to declare that it could only be imposed in the 'rarest of rare' cases. 25. Judged in the light shed by Maneka Gandhi and Bachan Singh, it is impossible to uphold Section 303 as valid. Section 303 excludes judicial discretion. The scales of justice are removed from the hands of the Judge so soon 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 o....
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....The Court went on to observe that a standardisation of the sentencing process which leaves little room for judicial discretion to take account of variations in culpability within single-offence category ceases to be judicial. It tends to sacrifice justice at the altar of blind uniformity. The Court further observed that there is a real danger of such mechanical standardisation degenerating 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 consc....
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....and for the Courts to impose it. Whereas, the mandate of Article 21 of the Constitution predicates that the last word on the question of justness and fairness of the procedure prescribed by law does not rest with the Legislature, but it is for the Courts to decide whether the prescription of mandatory death penalty by law depriving the person of his life and liberty is fair, just and reasonable. 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, th....
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.... narcotic offences cause a deleterious effect and deadly impact on the society as a whole; and that narcotic crimes were more heinous than murder [see Union of India v. Kuldip Singh, reported in 2004 (2) SCC 590, paragraphs 7 to 9 and 17; Union of India v. Ramsingh reported in (1999) 9 SCC 429, paragraphs 6 and 7; Intelligence Officer, NCB v. Sambhu Sonkar, reported in (2001) 2 SCC 562, paragraph 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....
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....ances referred to in column (1) of the table contained therein 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 or of financing, directly or indirectly, any of the activities specified in clause (a) is made punishable with death. It is incomprehensible as to why the offences covered by 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 fo....
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....ion of expression "human rights" occurring in Section 2(d) of the Protection of Human Rights Act, 1993 would not take the matter any further. In that, it plainly provides that the rights embodied in the International Covenants and enforceable by Courts in India alone encompass the expression "human rights" within the meaning of Section 2(d) of that Act. As aforesaid, in matters of express provision in 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 Co....
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....rted in (1974) 4 SCC 3, para 85. According to the petitioners, the classification of repeat offenders covered by Section 31-A is arbitrary. Inasmuch as, Section 31-A of the NDPS Act deals with recidivism strictly. In cases where the offender has engaged himself in successive crimes, under other provisions of the NDPS Act, is already dealt with under Section 31 of the Act. The penalty upon subsequent conviction 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 P....
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....ted to offences for embezzlement of opium by cultivator (Section 19) or for external dealings in narcotic drugs or psychotropic substances in contravention of Section 12 (Section 24) or for financing illicit traffic and harbouring offenders (Section 27A) and not other offences, does not take the matter any further. The Legislature has thought it appropriate to introduce stringent provisions to control the activities 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 cri....
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.... specified by the Act (except the item No.iv). The table reads thus:- Entry Drug Definition Commercial Quantity S.2(viia) S.31A Quantity (i) Opium 2 (xv) a) coagulated juice of the opium poppy; and b) any mixture; with or without any neutral material of the coagulated juice of opium poppy 2.5 kg 10 kg (ii) Morphine 2(xvi) opium derivative means-(c) phenenthrene alkaloids, namely morphine, codeine, 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, ....
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....e under the NDPS Act, the argument that the punishment of death penalty is disproportionate cannot be countenanced, having regard to the oftrepeated observations of the Apex Court that offence relating to narcotic drug or psychotropic substance is even more heinous than culpable homicide, because 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. 76. The only argument that needs some attention is of quantity of drugs specified in column (2) of the 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....
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....dant become a deadly instrument, whereby many are wiped out and terror strikes community life. Then he reasonably forfeits his fundamental rights and takes leave of life under the law (see paragraph 60 of the reported decision). The Court further observed, if such accused is prosecuted and convicted, he may earn the extreme penalty for taking the lives of innocents deliberately for astronomical scales of gain. The fact that if a person engages in repeated activities involving drug quantity of less than specified in column (2) of the table given in Section 31-A of the Act is 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....
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.... death penalty for specified offences. Suffice it to observe that the challenge regarding the validity of Section 31-A of the NDPS Act, being violative of Article 14 of the Constitution on the above-mentioned arguments, cannot be countenanced. Whereas, Section 31-A is a provision which makes distinction between persons covered by the law and those left out of it on an intelligible differentia and that differentia has a rational nexus to the object sought to be achieved by law. 81. That takes us to the last aspect as to the nature of relief to be granted. We have rejected 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 awar....
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....urther, the impugned section does not provide for a substitute to the death penalty. Thus, if the Court were to consider the expression 'shall' as 'may', it will have to add the penalty of life imprisonment or its equivalent into the impugned section. That is plainly impermissible. The petitioners further contend that, as Section 31-A opens with the non-obstante clause, upon accepting the alternative plea of the respondents of reading down the said provision, it would result in a clumsy and distorted interpretation of the said provision. That cannot be countenanced in view of the exposition 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 Sect....
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....c drugs/psychotropic substances. Notably, it is common ground that the accused, who engage themselves in commission of offences otherwise covered by Section 31-A of the NDPS Act, if are in a position to persuade the Court that the death penalty provided for by Section 31-A is avoidable or not appropriate in their case, considering the circumstances in which the offence was committed, as also of the offender, they can be still proceeded with under Section 31 of the Act. But, if the Court is not convinced with the said stand of the accused, it must be open to the Court to impose death penalty 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", whi....