Lawyers welcome Bombay high court’s decision to do away with the mandatory capital punishment for second-time convicts under the NDPS Act; trial courts will instead have the discretion to decide penalty after considering accused’s background.
Legal professionals who specialise in dealing with cases registered under the Narcotic Drugs and Psychotropic Substances Act (NDPS) have welcomed the Bombay high court’s judgement that grants courts the discretion to award the death sentence to convicts found guilty for a second time.
A division bench of justices AM Khanwilkar and AP Bhangale recently read down section 31-A of the NDPS Act, under which it was mandatory for a court to give the death sentence to a second-time offender. The bench ordered that the section should henceforth be read as “may be punishable with death” and not “shall be punishable with death”.
Advocate Tarak Sayyed, who managed to prevent an accused from being sent to the gallows citing a legal point, said: “For the first time in years, the power of the state has been withdrawn and handed over to courts. It’s a step in the right direction that courts will have to consider the circumstances which drove the convict into the drug business. The state cannot simply take away someone’s life without doing a background check.”
It is not common for convicts to be found guilty a second time under the NDPS Act. Most accused, though arrested earlier, are acquitted because of several loopholes in the investigations or because the seized quantity is not commercial.
Advocate Arun Gupte, who appears for the Narcotics Control Bureau (NCB) and had secured the death penalty for Ghulam Mohammed Malik, on whose petition the HC delivered its order, said: “As per the high court judgement, discretion is now with the trial court. Earlier, the sentence used to be sent for confirmation to the high court. But now, the trial court may or may not give the death penalty.”
At present, there are five special courts in Mumbai exclusively trying accused under the NDPS Act. Advocate Shekhar Bhandary, who defended one of the co-accused in the alleged possession of drugs case against actor Fardeen Khan, said: “The death sentence is given only to second-time offenders found guilty of possession of a commercial quantity. But the punishment is harsh. A member staying in prison for years but alive is always a relief for the family.”
The bench, while making the punishment under section 31-A discretionary, observed: “Mandatory death sentence for a repeat offence under the Act violates Article 21 pertaining to the Right to Life.” The court gave its decision on a petition filed by the Indian Harm Reduction Network and Malik, who was given the death sentence in August 2008.
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