1 178410 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1784 OF 2010 Indian Harm Reduction Network, ] a Society registered under Societies Registration ] Act, 1860, Registration No. S/58430/2007, ] having its office at F 6/8A Vasant Vihar, ] New Delhi 110057 ] ...Petitioner V/s. 1. The Union of India, through ] 1A. Secretary, Department of Revenue, ] Ministry of Finance, North Block, ] New Delhi 110 001 ] 1B. Director General, ] Narcotics Control Bureau, Ministry of ] Home Affairs, West Block No.1, Wing No.V, ] R.K. Puram, New Delhi 110 066 ] 1C. Zonal Director ] Narcotics Control Bureau, Mumbai Zonal Unit, ] Exchange Building, 3rd Floor, Sprott Road, ] Ballard Estate, Mumbai 400 001 ] 2. State of Maharashtra ] Mantralaya, Mumbai ] ...Respondents WITH CRIMINAL WRIT PETITION NO. 1790 OF 2010 Gulam Mohammed Malik ] Age 53 years, Indian National, ] R/o. Village Banzinara, Kashmir ] [at present in custody of Yeroda (sic) Central ] Prison as a convict in NDPS Special Case ] No. 60 of 2002 ] ...Petitioner 2 178410 V/s. 1. Vipin Nair ] Intelligence Officer, Narcotics Control Bureau, ] Mumbai ] 2. The State of Maharashtra ] 3. Union of India through ] a) Secretary, Ministry of Law & Justice ] b) Secretary, Department of Revenue, ] Ministry of Finance ] ...Respondents Mr. Anand Grover with Ms. Tripti Tandon, Mr. Vijay Hiremath, Mr. Amaritananda Chakravarty i/by Mr. Prakash Mahadik for the Petitioner in Criminal Writ Petition No. 1784 of 2010 Mr. H.E. Mooman for the Petitioner in Criminal Writ Petition No. 1790 of 2010 Mr. D.J. Khambata, Additional Solicitor General with Mr. S.K. Shinde and Mr. R.I. Chagla for Respondent No. 1 and Attorney General Mr. D.P. Adsule, A.P.P., for the State CORAM: A.M. KHANWILKAR AND A.P. BHANGALE, JJ. DATE: JUNE 16, 2011 JUDGMENT (Per A.M. Khanwilkar, J.):- By these petitions under Article 226 of the Constitution of India, the constitutional validity of Section 31-A of the Narcotic Drugs 3 178410 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 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 drug- related 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. 4 178410 3. The second petition is filed by the original accused No. 1 in NDPS Special Case No. 60 of 2002, which was tried and ended in finding of guilt recorded by the Special Judge under the NDPS Act. The said petitioner was also prosecuted and convicted in connection with offences under Sections 8(c), 20 (B) read with Section 29 of the NDPS Act by the Sessions Judge at Himmatnagar, Ahmedabad, in NDPS Special Case No. 1 of 2002 vide judgment dated 9th March, 2004, regarding the seizure of commercial quantity of charas from the premises occupied by the said petitioner. Accordingly, the Special Judge under the NDPS Act at Mumbai by his decision dated 6th February, 2008 convicted the said petitioner in respect of “repeat offence” covered by Section 31-A of the NDPS Act; and, therefore, imposed death penalty in terms of Section 31-A of the NDPS Act. Besides challenging the said decision of the Special Judge under the NDPS Act at Mumbai by way of appeal before this Court, being Criminal Appeal No. 528 of 2008, the petitioner / original accused No. 1 in NDPS Special Case No. 60 of 2002 has also filed the present writ petition, challenging the validity of Section 31-A of the NDPS Act on the ground that it is violative of Articles 14 and 21 of the Constitution of India. 4. Section 31-A of the NDPS Act was incorporated in the NDPS Act of 1985 in 1989. The said provision was amended in 2001, which, in turn, narrowed down the offences punishable with death. 5 178410 5. The Statement of Objects and Reasons for introducing Section 31-A in 1989, vide Amendment Act 2 of 1989, reads thus:- “In recent years, 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 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; 6 178410 (vi) to provide for forfeiture of property and a detailed procedure relating to the same; and (vii) to provide that the offences shall be cognizable and non-bailable.” (emphasis supplied) 6. As aforesaid, the original Section 31-A has been amended in 2001 by Amendment Act 9 of 2001. The Statement of Objects and Reasons for the said amendment reads thus:- “The Narcotic Drugs and Psychotropic Substances Act, 1985 provides deterrent punishment for various offences relating to illicit trafficking in narcotic drugs and psychotropic substances. Most of the offences invite uniform punishment of a minimum ten years rigorous imprisonment which may extend up to twenty years. While the Act envisages severe punishments for drug traffickers, it envisages reformative approach towards addicts. In view of the general delay in trial it has been found that the addicts prefer not to invoke the provisions of the Act. The strict bail provisions under the Act add to their misery. Therefore, it is proposed to rationalise the sentence structure so as to ensure that while drug traffickers who traffic in significant quantities of drugs are punished with deterrent sentences, the addicts and those who commit less serious offences are sentenced to less severe punishment. This requires rationalisation of the sentence structure provided under the Act. It is also proposed to restrict the application of strict bail provisions to those offenders who indulge in serious offences. 2. The Act was amended in 1989, inter alia, to provide for tracing, seizing and forfeiture of illegally acquired property. The experience gained over the years reveals that the provisions have certain inadequacies due to which the implementation of the provisions has been tardy. Certain other inadequacies in the various provisions 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 7 178410 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 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: 8 178410 Particulars of narcotic drugs/ psychotropic substances Quantity (1) (2) (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) (xii) (xiii) (xiv) Opium Morphine Heroin Codeine Thebaine Cocaine Hashish Any mixture with or without any neutral material of any of the above drugs LSD, LSD-25(+)-N, N-Diethyllysergamide (d-lysergic acid deithylamide) THC (Tetrahydrocannabinols, the following isomers: 6-a (10-a), 6-a(7), 7, 8, 9, 10, 9(11) and their stereochemical variants) Methamphetamine (+) - 2- Methylamine-1- Phenylpropane Methaqualone (2-Methyl-3-o-tolyl-4-(3-H)- Quinazolinone) Amphetamine (+)-2-amino-1-Phenylpropane Salts and preparations of the Psychotropic Substances mentioned in (ix) to (xiii) 10 kgs 1 kg 1 kg 1 kg 1 kg 500 grams 20 kgs lesser of the quantity between the quantities given against the respective narcotic drugs or psychotropic sub- stances mentioned above forming part of the mixture 500 grams 500 grams 1,500 grams 1,500 grams 1,500 grams 1,500 grams; (b) financing, directly or indirectly, any of the activities specified in clause (a), shall be punishable with death. (2) Where any person is convicted by competent Court of criminal jurisdiction outside India under any law corresponding to the provisions of 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.” 9 178410 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 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 10 178410 consequences, whereas the offending acts in respect of the first and the second offences are those which are carried out without or in contravention of a licence. Further, the first offence under Sections 19, 24 or 27-A is independent of any quantity of drugs. They are distinct and not akin or similar to the second offence. Notwithstanding this, the accused is sentenced to death, as capital punishment is the only penalty specified by Section 31-A, and there is no alternative sentence. It is in this backdrop the petitioners assert that the mandatory death penalty provided in Section 31-A renders the said provision unconstitutional and violative of Articles 14 and 21 of the Constitution of India. 10. The petitioners would also rely on the International Covenants which, according to them, are also enforceable by virtue of the protection of the Human Rights Act, 1993. According to the petitioners, Articles 6 and 7 of the International Covenants on Civil and Political Rights (hereinafter referred to as “ICCPR”) can be read in and/or give effect for interpreting and enforcing fundamental rights, in particular Article 21. On this premise, the petitioners assert that Section 31-A is violative of Article 21 of the Constitution, more particularly on account of denial of procedural safeguards, amongst others, right of pre-sentence hearing on the question of sentence. Further, the imposition of standardised or 11 178410 mandatory death penalty betrays the well-established principle that sentencing must be individualised, and ought to depend on the circumstances of the offence as well as the offender. Similarly, the requirement of recording special reasons by the Court for imposing death penalty is completely done away with and the exercise of judicial discretion on well-recognised principles, which is the highest safeguard for the accused, and is at the core of administration 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 12 178410 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, 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 178410 13. The petitioners have also attacked the validity of Section 31-A on the touchstone of Article 14 of the Constitution of India, which postulates that classification for the purpose of legislation must be reasonable. According to the petitioners, the distinction between persons covered by law and those left out of it should be based on an intelligible differentia; and that differentia must have a rational nexus to the object sought to be achieved by law. Whereas, the repeat offenders can be sentenced under Section 31 or Section 31-A, as the case may be. Section 31 already provides for enhanced punishment for offences after previous conviction. The offence, which is not covered by Section 31-A, may be the second or successive offences committed, but, still, the person would not face the mandatory death penalty, as is provided in Section 31-A. Moreover, Section 31-A opens with non-obstante clause, which pre-supposes exclusion of application of Section 31 to person convicted for any of the offences under Sections 19, 24, or 27-A and offences involving commercial quantity, who is subsequently convicted for offences involving quantities specified in the table and for activities referred to in Section 31-A of the Act. The exclusion of such accused has no nexus with the object sought to be achieved by the Act. Accordingly, the classification so made is illogical, unfair, unjust and unreasonable. 14 178410 14. The petitioners have also taken exception to the drug quantities specified in the table in Section 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 involved; and a person would be liable to death sentence under Section 31-A, even when the actual quantity of drugs, 15 178410 such as opium, which can be a mixture, is less than the specified quantity of 10 kg. As a result, the application of Section 31-A would be arbitrary and violative of Article 14 of the Constitution. 15. According to the petitioners, the death penalty for drug crimes is disproportionate, for which reason, it is opposed to the tenets of Articles 14 and 21 of the Constitution. Mandatory death penalty is opposed to the constitutional obligation to protect the right to life of persons accused of drug crimes. According to the petitioners, the narcotic drugs and psychotropic substances are not abhorrent, per se. They serve genuine medical and scientific needs of the community, and, as such, are beneficial to society. Engaging in the production, manufacture, possession, transportation, import and export or transshipment of narcotic drugs and psychotropic substances, even in the quantities specified in the table to Section 31-A, is not, per se, illegal. Those activities are penalised, when they are carried out without a licence, or in contravention of the terms and conditions prescribed in the licence. According to the petitioners, the mere absence of, or derogation from a licence, cannot warrant the extreme penalty of capital sentence. 16 178410 16. Further, trafficking of drugs, even in the quantities specified under Section 31-A, does not, directly or indirectly, cause loss of life. In that sense, it is not the most serious offence, which alone can be considered for providing death penalty. In addition, the consumption of drugs itself does not cause death. Even in the case of drug dependent, addiction itself does not cause death. The drug dependent person can recover from addiction after treatment, education, after care, rehabilitation and social re-integration, and the NDPS Act itself provides for such measures. Even for most serious crimes, such as under the provisions of the Unlawful Activities (Prevention) Act, 1967 and the Maharashtra Control of Organised Crime Act, 1999, which deal with terrorist activities and other serious crimes, the mandatory punishment of death sentence is not provided for. At any rate, the repeat drug crimes do not constitute rarest of rare case for justifying imposition of death penalty. 17. According to the petitioners, 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 17 178410 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 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. 18 178410 20. As constitutional validity of the Central Legislation was put in issue, notice was issued to the Attorney General of India, who is now represented by the learned Additional Solicitor General. These petitions are opposed by the respondents. Although it was argued that the Court should not decide the question pertaining to the constitutionality of Section 31-A of the NDPS Act in a petition filed by the first petitioner- Society, which is in the nature of Public Interest Litigation, however, it is fairly accepted that the said challenge, in any case, will have to be answered in the second petition filed by the original accused No.1 in NDPS Case No. 60 of 2002, who has been convicted and sentenced to death penalty under Section 31-A of the Act. 21. The substance of the argument canvassed on behalf of the respondents is