Sure death? Twice convicted narco accused in legal test case

Shabbir Shaikh, who was convicted on Tuesday in a narcotics case, faces the prospect of being awarded the death sentence.

Reason: 13 years ago, he was reportedly found guilty of smuggling mandrax tablets. Under the stringent Narcotics, Drugs and Psychotropic Substances (NDPS) Act, any person convicted of carrying drugs of commercial quantity “shall be punishable with death” for subsequent conviction.

As per section 31A of the act, the court has no discretionary powers as far as sentencing in such cases is concerned. Shaikh was found guilty of possessing mandrax along with three others — Yunus Shaikh, Pratap Gawanekar and Sanjay Pande — in 1997. While the others were sentenced to 10 years in prison, the court has asked the prosecution to prove that Shaikh was convicted earlier in a similar case. Another accused, Harish Patel, was acquitted.

“Once we prove that he was convicted earlier for an offence relating to a commercial quantity of mandrax, the court will frame charges under section 31A and pronounce the sentence,” said special public prosecutor SK Menon.

Menon said he had information that Shaikh was convicted in 1997 by a special NDPS court for an offence he committed relating to a commercial quantity of the drug in 1992. He spent 10 years in prison, after which he was arrested again by the narcotics control bureau (NCB) in 2005.

If Shaikh is sentenced to death, it would be the second such conviction awarded by a city court in a case registered by the NCB.

In 2008, the NCB had secured the death sentence for a Kashmiri man, Ghulam Mohammed Malik, who was found guilty in two cases relating to possession of commercial quantities of hashish in Gujarat and Mumbai. The Bombay high court has stayed the death sentence after he filed an appeal there.

“If my client is sentenced to death, I will try to challenge the constitutionality of the NDPS provision itself,” said Shaikh’s lawyer Taraq Sayed.    

The NCB arrested the four convicts on August 30, 2005, in a shop at Kurar village, Malad, in north Mumbai. It seized 65 kg of methaquolone and 4.5 kg of mandrax tablets. As per their case, the accused were manufacturing methaquolone powder at Sigma Chemicals at Taloja and then converting it to mandrax tablets at Kurar.

The NCB also allegedly recovered literature on how psychotropic substances are manufactured, bills showing purchase of labelling machine and dyes, glass line reactor, and other controlled substances used for manufacturing methaquolone at Taloja. The NCB recorded the confessional statements of all four accused. These are admissible in court unless proven involuntary.

During the trial, the prosecution examined around 26 witness, including NCB officers, and panch witnesses.

The first narcotics accused to be convicted for death was in 2003 when a special NDPS court had sentenced a Nigerian national, Prince Uzozie, to death after he was convicted for the second time.

However, on October 26, 2004, a division bench comprising justice VG Palshikar and justice Anoop Mohta had acquitted Uzozie.

A tough law
The law prescribes compulsory death sentence in very few cases. One of them involves section 31A of the Narcotics, Drugs and Psychotropic Substances Act (NDPS), which is an exceptionally tough law. There are very few other provisions under the law which make a death sentence mandatory.

These include section 27(3) of the Arms Act, where an accused found guilty of using any prohibited arms or prohibited ammunition which results in the death of another person “shall be punishable with death.”

“Section 303 of the Indian Penal Code, which provides for a mandatory death sentence, was declared unconstitutional by the Supreme Court many years ago since the provision left no discretionary powers to the court,” said senior defence counsel Ashok Mundargi. The provision earlier stated that if a life convict is convicted for murder, he is to be sentenced to death.

“If section 31A of NDPS is challenged, the same analogy will apply. So far, it has not been challenged,” said Mundargi.