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Constitution saves drug convict from death row

Mohammed Shabbir Shaikh, 56, was convicted on Tuesday for being in possession of a controlled substance — methaquolone powder— and mandrax tablets in 2005.

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Mohammed Shabbir Shaikh, 56, sentenced to death after being convicted twice in mandrax smuggling cases, had a dramatic reprieve, thanks to a constitutional provision put into context by his defence counsel, Taraq Sayed, who convinced the judge to instead sentence him to 15 years in prison.

Shaikh wiped tears from his eyes when special Narcotics and Psychotropic Substances Act (NDPS) judge, DR Shirsao, told him that he’d rejected the prosecution’s plea  to sentence him to death under section 31 A of the NDPS Act.

Shaikh was convicted on Tuesday for being in possession of a controlled substance — methaquolone powder— and mandrax tablets in 2005. He was earlier convicted in 1997 for being in possession of nearly 400kg of the same powder in 1992. He was sentenced to 10 years in jail along with two others accused.

As per section 31 A of the NDPS, a person convicted for carrying commercial quantity of drugs is “punishable with death” for any subsequent conviction. If the provision is applicable to the accused, the judge has no discretion while granting the sentence.

Sayed on Saturday argued that when Shaikh was convicted for the first time in 1997, NDPS didn’t distinguish between the quantities of narcotics found. After October 2001, the Act made a distinction between different quantities of narcotics found in possession of the accused— small, non-commercial and commercial.

“We argued that under Article 20 (1) of the Constitution which states that no person can be convicted for an offence which doesn’t exist at the time of offence. He cannot be convicted for being in possession of commercial quantity because the law didn’t make that distinction in 1997,” said Sayed.

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