TMI Blog2011 (6) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... r the offences covered by Section 31-A, upon recording 1reasons therefor. Petitions are partly allowed - Criminal Writ Petition No. 1784 of 2010, Criminal Writ Petition No. 1790 of 2010 - - - Dated:- 16-6-2011 - A.M. Khanwilkar, A.P. Bhangale, JJ. Anand Grover with Tripti Tandon, Vijay Hiremath, Amaritananda Chakravarty i/by Prakash Mahadik for the Petitioner H.E. Mooman for the Petitioner D.J. Khambata, Additional Solicitor General with S.K. Shinde and R.I. Chagla for Respondent No. 1 and Attorney General D.P. Adsule, A.P.P., for the State JUDGMENT A.M. Khanwilkar, J 1. By these petitions under Article 226 of the Constitution of India, the constitutional validity of Section 31-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act" or "the Act", for the sake of brevity) is challenged on the ground that the mandatory death sentence prescribed therein is violative of Articles 14 and 21 of the Constitution of India. 2. The first petition is filed by a Society registered under the Societies Registration Act, 1860, which claims to be working in the filed of drug related programmes and policie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India has been facing a problem of transit traffic in illicit drugs. The spill-over from such traffic has caused problems of abuse and addiction. The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishments for drug trafficking offences. Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drugs offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985, the need to amend the law to further strengthen it, has been felt. 2. A Cabinet Sub-Committee which was constituted for combating drug traffic and preventing drug abuse, also made a number of recommendations for strengthening the existing law. In the light of the recommendations of the Cabinet Sub-Committee and the working of the Narcotic Drugs and Psychotropic Substances Act, in the last three years, it is proposed to amend the said Act. These amendments, inter alia, provide 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 illi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the Act have been noticed. In order to remove those inadequacies it is necessary to amend the relevant provisions. 3. The provisions relating to certain procedural aspects like search and seizure have certain deficiencies due to which the law enforcement efforts against illicit drug trafficking have not proved very effective. A need has also been felt to confer powers of entry, search, seizure, etc., in respect of offences relating to Controlled Substances and for tracing, freezing, seizing and forfeiture of illegally acquired property upon the empowered officers. 4. Certain obligations, specially in respect of the concept of 'Controlled Delivery' arising from the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 to which India acceded, also require to be addressed by incorporating suitable provisions in the Act." (emphasis supplied) 7. Section 31-A, as amended in 2001, 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 conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 19, section 24 or section 27-A and for offences involving commercial quantity of any narcotic drug or psychotropic substance such person, in respect of such conviction, shall be dealt with for the purposes of sub-section (1) as if he had been convicted by a Court in India." 8. From the plain reading of Section 31-A of the Act, it is attracted only in cases where a 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 involving embezzlement of opium by a licensed cultivator (Section 19), unauthorised trade and external dealing in narcotic drugs and psychotropic substances (Section 24), financing illicit trafficking and harbouring offenders (Section 27-A) and for offences involving commercial quantity of any narcotic drug or psychotropic substance. If that person is subsequently convicted of the commission of or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence relating to engaging in production, manufacture, possession, transportation, import into India, export from India or transshipment, of narcotic drugs and psychotropic substances specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of criminal justice, is impaired. That capital sentence can be prescribed only when the alternative of life sentence is unquestionably foreclosed. In any case, considering the tenor of Section 31-A, the remedy of the accused to ask for judicial review of the death penalty before the superior Court is completely denied. According to the petitioners, breach of such safeguards guaranteed to the accused renders the procedure for capital sentencing under Section 31-A unfair, unjust and arbitrary. 11. According to the petitioners, taking away the judicial discretion in the matter of sentencing inevitably impinges upon the doctrine of separation of powers and the rule of law; for, sentencing is judicial function, centered on administration of justice. Section 31-A completely eliminates judicial discretion in sentencing. That violates the constitutional norms of separation of powers and rule of law, for which reason, the provision is violative of Article 21 of the Constitution. 12. According to the petitioners, the mandatory death sentence, without alternative punishment, is substantively unfair, unjust and unreasonable. Further, the mandatory death penalty constitutes cruel, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 31-A of the Act. According to the petitioners, from the error which has crept in in the drug quantities specified in the table given in Section 31-A of the Act, it demonstrates the negligent and casual drafting by the Legislature, much less in respect of provision prescribing mandatory death penalty. Inasmuch as, the drug specified at item No. (iv) in the table, viz., Codeine, the commercial quantity thereof is specified as "1 kg" in the Act, and even under Section 31-A, the drug quantity is retained as "1 kg" for the repeat offences, unlike multiple drug quantity for other specified drugs under the same table. Moreover, the drugs listed in the table to Section 31-A, by definition, include mixture or preparation; and keeping in mind the Notification dated 18th November, 2009, which has amended the earlier Notification dated 19th October, 2001, the amount of narcotic drug or psychotropic substance involved in the offence will have to be calculated on the basis of the weight of the entire mixture or solution, and not just its pure drug content. Resultantly, it would contradict the legislative intent of imposing penalties according to the quantity of narcotic or psychotropic drug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, recidivism, per se, cannot be the basis for sending a person to gallows, and more so, in the context of the dictum of the Apex Court that even a second conviction for murder does not automatically qualify it as a rarest of rare crime deserving capital punishment. It is the case of the petitioners that a repeat conviction for drug trafficking covered by Section 31-A of the Act resulting in a mandatory death sentence is unduly harsh and excessive, for which reason, it falls foul of the principle of proportionality under Article 14, read with Article 6 (2) of the ICCPR. 18. According to the petitioners, the State has not discharged the burden to justify that Section 31-A is not unfair and arbitrary under Article 14 of the Constitution. 19. In the second Writ Petition, attempt has been made by the petitioner to additionally persuade us to interpret Section 31-A of the Act so as to define the sweep and application of the said provision. Relying on the facts applicable to that case, it was argued that the petitioner has been 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 q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity specified in column 2 of the table. It is not open to the Court to reduce the minimum sentence, when provided for by the Legislature. 22. Our attention was drawn to the fact that mandatory death sentence is also provided in other statutes, such as Section 27 (3) of the Arms Act, 1959 "for a first offence" and also the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. According to the respondents, the 1989 amendment contained a package of amendments designed to strengthen the NDPS Act, including insertion of Section 31-A. The legislative competence to enact Section 31-A of the Act has not been challenged by the petitioners. At the same time, the offences falling under the NDPS Act have been held to have deleterious effect and deadly impact on society as a whole. The Apex Court has, time and again, held that narcotic crimes are more heinous than murder. It is then contended that the quantity of drugs specified in Section 31-A is in multiples of the commercial quantity specified in clauses (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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is provided even for economic, social or political crime. Moreover, death penalty has been held not to constitute "cruel and unusual punishment". It is contended that, for International Conventions and Treaties to be recognized as law, overriding any conflicting domestic law, Parliament has to legislate under Article 253 of the Constitution. The municipal law of India will always prevail over International Conventions in the case of any conflict, if there is no overriding law enacted by Parliament under Article 253. In other words, the enacted laws by Parliament can, in no way, be circumscribed by the International Conventions or Treaties. It is then submitted that there is a presumption in favour of the constitutionality of a statute; and the burden is always upon the person who attacks it to show that there has been a clear transgression of a constitutional provision. Further, the Court should, ordinarily, defer to the wisdom of the Legislature, unless it enacts a law about which there can be 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 possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution Bench decisions in Jagmohan Singh v. State of Uttar Pradesh, reported in (1973) 1 SCC 20 and Rajendra Prasad v. State of Uttar Pradesh, reported in (1979) 3 SCC 646. As Bachan Singh (supra), being later in point, it may be useful to elaborate on the principle expounded therein. 28. One of the argument in Bachan Singh's case (supra) was that the provision of death penalty in Section 302 of the Indian Penal Code offended Article 19 of the Constitution. In that, death penalty serves no social purpose and its value as a deterrent remains unproven and defiles the dignity of individual so solemnly vouchsafed in the Preamble of the Constitution, its imposition must be regarded as "unreasonable restriction" amounting to total prohibition on the freedom guaranteed in Article 19 (1). The Court after analysing its earlier decision in Banks' Nationalisation Case, reported in (1970) 1 SCC 248, and Maneka Gandhi v. Union of India, reported in (1978) 1 SCC 248 observed thus:- "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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed above, a comprehensive test which can be formulated, may be restated as under: Does the impugned law, in its pith and substance, whatever may be its form, and object, deal with any of the fundamental rights conferred by Article 19(1)? If it does, does it abridge or abrogate any of those rights? and even if it does not, in its pith and substance, deal with any of the fundamental rights conferred by Article 19(1) is the direct and inevitable effect of the impugned law such as to abridge or abrogate any of those rights? The mere fact that impugned law incidentally, remotely or collaterally has the effect of abridging or abrogating those rights, will not satisfy the test. If the answer to the above queries be in the affirmative, the impugned law in order to be valid, must pass the test of reasonableness under Article 19. But if the impact of the law on any of the rights under Clause (1) of Article 19 is merely incidental, indirect, remote 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by us in its dual aspect, we are of the opinion that Section 302 of the Penal Code does not have to stand the test of Article 19(1) of the Constitution." "62. This is particularly true of crimes inherently vicious and pernicious, which under the English Common Law were classified as crimes mala in se as distinguished from crimes mala prohibita. Crimes mala in se embrace acts immoral or wrong in themselves, such as, murder, rape, arson, burglary, larceny (robbery and dacoity;) while crimes mala prohibita embrace things prohibited by statute as infringing on others' rights, though no moral turpitude attaches to such crimes. Such acts constitute crimes only because they are so prohibited. (See Words and Phrases, Permanent Edition, Vol. 10). While crimes mala in se do not per se, or in operation directly and inevitably impinge on the rights under Art 19(1), cases under the other category of crimes are conceivable where the 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 establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, are difficult, if not altogether impossible, to collect. Such statistics of deterred potential murderers are difficult to unravel as they may remain hidden in the innermost recesses of their mind. The Court then noticed that it is a common phenomenon in all the civilized countries that some murders are so shockingly offensive that there is a general outcry from the public for infliction of the ultimate penalty on the criminal. 34. On detailed analysis of the debate on the two opposite views in paragraph 132 of the reported judgment, the Court concluded thus:- "132. To sum up, the question whether or not death penalty serves any penological purpose is a difficult, complex and intractable issue. It has evoked strong, divergent views. For the purpose of testing the constitutionality of the impugned provision as to death penalty in Section 302, Penal Code on the ground of reasonableness 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es" the Court obviously meant the principles crystallised by judicial decisions illustrating as to what were regarded as aggravating or mitigating circumstances in those cases. The legislative changes since Jagmohan - as we have discussed already - do not have the effect of abrogating or nullifying those principles. The only effect is that the application of those principles is now to be guided by the paramount beacons of legislative policy discernible from Sections 354(3) and 235(2), namely: (1) The extreme penalty can be inflicted only in gravest cases of extreme culpability: (2) In making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstances of the offender also." 36. Indeed, in Bachan Singh's case (supra), the dictum in the case of Rajendra Prasad has been explained on two aspects. Firstly, the Court noted 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 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal jeopardizes social security in a persistent, planned and perilous fashion, then his enjoyment of fundamental rights may be rightly annihilated. 60. When, then, does a man hold out a terrible and continuing threat to social security in the setting of a developing country? He does so if, by his action, he not only murders but by that offence, poses, a grave peril to societal survival. If society does not survive, individual existence comes to naught. So, one test for impost of death sentence is to find out whether the murderer offers such a traumatic threat to the survival of social order. To illustrate, if an economic offender who intentionally mixes poison in drugs professionally or willfully adulterates intoxicating substances injuriously, and knowingly or intentionally causes death for the sake of private profit, such trader in lethal 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 ro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indulge in a nefarious activity solely for personal monetary or property gain. These white-collar criminals in appropriate cases do deserve capital punishment as the law now stands, both as deterrent and as putting an end to an active mind indulging in incurably nefarious activities. It is held that in certain class of cases, social justice to defend the Society would validate death penalty. To wit, the crime may be less shocking than other murders and yet the callous criminal, e.g. a lethal economic offender, may be jeopardizing societal existence by his act. 40. Thus, there is hardly any doubt that death penalty, per se, in the Indian context, is not at all impermissible and the Legislature is competent to provide for such penalty within the framework of our Constitution. The petitioners have, therefore, advisedly restricted 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 74-97 Downer, Alphonso Tracey and Others v Jamaica [Report no.41/00 of the Inter-American Commission on Human Rights, dated 13 April 2000], paras 169, 194-209 Michael Edwards, [Case 12.068], Omar Hall [Case 12.086], Brisn Schrorer and Jeronimo Bowleg v. The Bahamas, [Report No 48/01, April 4, 2001], paras 109-110 and 130-153 Dave Sewell v. Jamaica, Case 12.347, [Report No.76/02, dated 27 January 2002], paras 79, 88-93 Dacosta Cadogan v. Barbados [Series C No.204, Inter-American Court of Human Rights (IACrtHR) Judgement of September 24, 2009], paras 41-58 (v) Decisions of the United Nations Human Rights Committee Thompson v. St.Vincent and Grenadines (Communication No. 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offence as well as the offender would be warranted at all or otherwise. 45. To buttress the above submission, the learned counsel for the petitioners relied on the following decisions:- Rameshbhai C. Rathod v. State of Gujarat, reported in (2009) 5 SCC 740 - para 106; Jagmohan Singh (supra) - paras 24 and 26; Santa Singh v. State of Punjab, reported in (1976) 4 SCC 190 - paras 2 to 4, 6 and 7; Rajendra Prasad (supra) - paras 3, 5, 10 and 13; Bachan Singh (supra) - paras 160, 166, 197 and 209; Mithu v. State of Punjab, reported in (1983) 2 SCC 277 - paras 1 to 3, 5 to 9, 11 to 13, 15 to 18, 24 and 25; Allauddin Mian and Ors. v. State of Bihar, reported in (1989) 3 SCC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue process" clause as in the American Constitution, the same consequence ensued after the decisions in the Banks' Nationalisation Case (supra) and Maneka Gandhi (supra). The Court also referred to the dictum in Bachan Singh (supra), which upheld the constitutional validity of the death penalty. It proceeded to hold that these decisions have expanded the scope of Article 21 in a significant way, and it is now 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. The Court, in paragraph 6, observed thus:- "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rde r and if the normal sentence prescribed by law for murder is imprisonment for life." (emphasis supplied) 49. Having explained the ratio of Bachan Singh's case, in Mithu's case, the Constitution Bench opined that there was a fundamental distinction between the provisions of Sections 302 and 303 of the Code; and for which reason, the ratio of Bachan Singh will not govern the question as regards the validity of Section 303, whereas the validity of Section 303 was res integra. 50. Having said this, the Court, in paragraph 9, proceeded to articulate the questions that would arise for its consideration. Paragraph 9 reads thus:- "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was committed, and, therefore, without regard to the gravity of the offence, cannot but be regarded as harsh, unjust and unfair. This is not a casual observation made by the Court or in the nature of obiter dicta. The statement of law that can be culled out from this exposition is that a provision of law, which takes away the judicial discretion for sentencing the convict after reckoning aggravating and mitigating circumstances in which the offence was committed and of the offender as well, particularly in a matter of life and death, would necessarily be harsh, unjust and unfair. In other words, it would violate 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 irrele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt went on to observe, in paragraph 18, that the convict must get an opportunity to show cause why he should not be sentenced to death. and on accepting that plea, the Court would be relieved from its obligation to record special reasons for awarding death sentence. Further, deprivation of these rights and safeguards will inevitably result in injustice and harsh, arbitrary and unjust. 54. Be that as it may, the observation in paragraph 23 leaves no manner of doubt that besides the question as to whether Section 303 bears any nexus with the object of the statute for imposing 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 pithil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Singh sustained the validity of Section 302 because the sentence of imprisonment for life and not death was the normal punishment for murder, and the sentence of death was an alternative penalty to be resorted to in the most exceptional of cases and the discretion to impose or not to impose the sentence of death was given to the Judge. The ruthless rigour of the sentence of death, even as an alternative penalty, was thought to be tempered by the wide discretion given to the Judge. Judicial discretion was what prevented the outlawing of the sentence of 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 ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bachan Singh's case. In paragraph 172 in Bachan Singh's case, the Court further observed that criminal cases do not fall into set behaviouristic patterns. Even within a single-category offence, there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. Each case presents its own distinctive features, its peculiar combinations of events and its unique configuration of facts. 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 manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priori, neither the argument of standardisation nor sentencing being a legislative policy matter, which exclusively belongs to the sphere of legislation or that the punishment specified in Section 31-A is in the nature of minimum sentence, can be countenanced to sustain the mandatory death penalty provision. As observed 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, except the decision in the case of Mithu, there is no other judgment of the Indian Court on the point of validity of a provision containing mandatory death penalty. We, therefore, do not think it necessary to dilate on the dictum of other authorities on the point under consideration. 62. The respondents would, however, argue that the enactment of the NDPS Act, and more particularly, Section 31-A, will have to be considered, keeping in mind the oft-repeated observations of the Supreme Court that 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, Pak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered under Section 31-A of the Act completely takes away the judicial discretion, nay, abridges the entire procedure for administration of criminal justice of weighing the aggravating and mitigating circumstances in which the offence was committed as well as that of the offender. Moreover, considering the cases covered by Section 31-A of engaging in production, manufacture, possession, transportation, import into India, export from India or transshipment, of narcotic drugs and psychotropic substances 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that, as per the municipal law and the constitutional scheme as applicable in India, providing for death penalty is within the domain of the Legislature. Further, the International Covenants and judicial decisions cannot be the basis to overlook the express provision in the municipal law. Even the argument of the petitioners that the provisions of the International Covenants are enforceable, per se, in India, will have to be negatived for the same reason. Further, the definition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislation has to be reasonable, in that (i) the distinction between persons covered by law and those left out of it be based on intelligible differentia and (ii) that differentia have a rational nexus to the object sought to be achieved by law. To buttress this submission, reliance is placed on the exposition of the Apex Court in the cases of D.S. Nakara v. State, reported in (1983) 1 SCC 305, paragraphs 15 and 16; and E.P. Royappa v. State of Tamil Nadu, reported 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of commercial quantity of the narcotic drugs or psychotropic substances. It is not simpliciter a repeat offender, as is the case under Section 31 of the Act. The legislative intent is not only to structure the penalty in the context of the different offences under the Act, but also to introduce stringent provision for controlling and regulating the operations relating to narcotic drugs and psychotropic substances. The fact that Section 31- A is limited 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the commercial quantity specified in the Act (except in respect of drug at item No.(iv) in table given in Section 31-A). 74. It will be useful to reproduce the table describing the drug, definition, commercial quantity and quantity specified in Section 31-A qua the stated drug. The same discloses that the offence under Section 31-A is attracted in relation to quantity of drugs which are in multiples of the commercial quantity 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration of such substance or material included in the list of psychotropic substances specified in the Schedule; 500 gms 1500 gms (xiii) Amphetamine 2(xxiii) psychotropic substance means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule; 50 gms 1500 gms (xiv) Salts and preparations of the psychotropic substances mentioned above 1500 gms 75. Considering the gravity of the said offence and the repeated involvement of the person in relation to specified offence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke down the provision of Section 31-A, much less as a whole. Suffice it to observe that the challenge of the petitioners regarding the validity of Section 31- A, being violative of Article 14 of the Constitution of India on the stated grounds, is devoid of merits. 78. The argument of the petitioners that the legislative policy of reducing illicit drugs must be balanced with constitutional obligation to protect the right to life of persons accused of drug crimes ought to be answered, keeping in mind the principle underlying the dictum of the Apex Court in Rajendra Prasad's case that the offences which affect the social security, the fundamental rights of the defendant 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 colu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they deserve capital punishment as the law now stand both as policy and putting an end to an active mind indulging in nefarious activities. Such death penalty would stand the test of social justice for the protection and survival of the society. The activities falling under the NDPS Act cannot but jeopardise the societal fabric. This crime may be less shocking than the crime of murder, but it is more heinous than the latter. The offence under Section 31-A, therefore, legitimately fits into the legislative scheme of structuring the punishments for different offences, including for the rarest of rare cases. The Parliament is competent to provide for extreme 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 natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision of the Apex Court in State of Maharashtra v. Vinayak Tukaram Utekar reported in 1997 Cri.L.J. 3988, paragraphs 33 to 36. 83. The petitioners, however, would contend that the Court having held that Section 31-A is unconstitutional, ought to strike it down, more so because the argument of reading down Section 31-A to save it from being declared unconstitutional is unavailable because of the language of Section 31-A itself. For, the said provision uses expression 'shall' which pre-supposes that it is a mandatory provision, and the Legislature's intention to make it mandatory cannot be lightly brushed aside by the Court. Further, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f judicial discretion for awarding death penalty would be available, and not otherwise. Thus, the provision would be constitutional if alternative sentence to death penalty is also in place. As aforesaid, Section 31 already covers the field to punish the accused, who has been subsequently convicted of the stated offences. Section 31-A, however, deals with such accused, who are otherwise covered by Section 31 of the NDPS Act, but have indulged in specified activities in relation to huge quantity of narcotic drugs/psychotropic substances, which is in multiples of the commercial quantity specified by the Act for the same narcotic 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 31 of the Act, would act as a deterrent, and can deal sternly with the offender. Stricto senso, there is no law which stipulates that only life sentence can be an alternative to death sentence. Moreover, even Section 354(3) of the Code refers to the alternative punishment not only with imprisonment for life but also "imprisonment for a term of years". Further, imposition of punishment of actual imprisonment, which is above fourteen years or up to 30 years, and which cannot be suspended, remitted or commuted, is no less than life sentence. In that, under ordinary law, the life sentence is amenable to remission or commutation. In which case, the convict can be considered for being released on completion of fourteen years' sentence, including remission period. Thus understood, the decision of the Apex Court in the case of Delhi Transport Corporation (supra), pressed into service by the petitioners, will be of no avail. 88. Suffice it to observe that there is no impediment in accepting the alternative argument of the respondents that Section 31-A of the NDPS Act may be construed as directory; and death penalty specified in Section 31-A of the NDPS Act may be considered a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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