Holding that a provision of the Narcotics Drugs and Psychotropic Substances (NDPS) Act violates the fundamental rights, the Bombay high court has ruled that it would be the discretion of the special judge whether or not to award death penalty for second conviction under the special Act.
A division bench of justice AM Khanwilkar and justice AP Bhangale on Thursday observed that Section 31(A) of the NDPS Act was violative of the Article 21 [Right to Life] of the Constitution of India and ruled that the second conviction in the NDPS case need not be death penalty.
The court ruling came while hearing a petition filed by Indian Harm Reduction Network (IHRN), a registered consortium of NGOs working for humane drug policies. The petition was filed after Ghulam Malik, a man hailing from Kashmir, was awarded death sentence in December 2007 on his second conviction.
The petition had challenged the constitutional validity of Section 31(A) of the NDPS Act that prescribes a mandatory death sentence for certain drug offences upon subsequent conviction.
Counsel for the petitioners Anand Grover and advocate Vijay Hiremath and HE Mooman had contended that the provision was arbitrary, disproportionate and excessive.
Also, it prevents individualised sentencing and denies the accused an opportunity to be heard on the question of sentence, Grover said.
The provision, which prescribes mandatory death sentence, is uncalled for as it takes away the discretion from judge on sentencing the convict. The special court judge has no choice other than awarding death penalty hence it precludes judicial discretion.
There have been just two cases in Mumbai when a death sentence was awarded in the NDPS case, one of which was reversed by the high court in 2004.