CONSTITUTIONALITY OF DEATH PENALTY VIS-A-VIS REPEAT OFFENDERS UNDER THE NDPS ACT

The constitutionality of death penalty has been challenged on several occasions on the grounds of being violative of right to life which is a basic human right given in numerous International Conventions and guaranteed as fundamental right under article 21[1] of the Constitution of India. But the right to life comes with an exception being the right to be taken away by State in accordance to procedure established by Law. Therefore, a death penalty given to achieve the ends of justice following procedure established by law cannot be said unconstitutional.

India being a developing country with second largest population in world has a significantly high crime rate and in order have a deterrent effect such harsher penalties like capital punishment is necessary to maintain peace and order in society. International Law also does not prohibit the use of death penalty yet most of the countries mainly European nations have abolished it considering it a cruel punishment and a grave violation of human rights with exceptions like United States of America, India, Middle-east countries like Saudi Arabia, United Arab Emirates etc. The International Bill of Human Rights also advocates the abolition of death penalty and the second optional protocol to ICCPR[2] also aimed at abolition of death penalty with only exception being war crimes. India is not a party to second optional protocol and also voted against UNGA Resolution GA/10678[3] on prohibition of death penalty, therefore India has cleared its stance time and again in world community. It is mandatory to have a stringent legal system before practice of use of capital punishment. [4]

It has been reinstated in various landmark judgements of the Hon’ble Judges of our esteemed judicial system that the power of the court to pronounce capital punishment shall only be exercised in the rarest of the rare cases. The punishment very much depends upon the atrocity of the crime conducted by the offender. Even though an extensive amount of judicial precedent already exists with respect to constitutional validity of capital punishment, there still remains an open question with respect to its regular practice and significance in the legislations wherever such punishment exists.

India, though having the concept of death punishment in legislation since inception, has judiciously and rationally exercised it, establishing a co-relation with most heinous offences and the Supreme Court has reaffirmed that it should be given only to the rarest of rare cases.[5] The Apex court also struck down section 303 of IPC which provided for mandatory death sentence for the offenders.[6] There are several acts which prescribes for Death Penalty including Indian Penal Code 1862, Narcotic Drugs and Psychotropic Substances (Prevention) Act 1985,Unlawful Activities (Prevention) Act, Prevention of Terrorism Act, 2002 (now repealed) etc. Some of the statues also prescribe for mandatory death sentences Laws relating to the Armed Forces, for example the Air Force Act, 1950; the Army Act, 1950; the Navy Act, 1950; Defence and Internal Security of India Act, 1971 and Defence of India Act, 1971.

When we talk about the challenge faced by the legislature with respect to inclusion of capital punishment in various acts, the same has been challenged many times beginning from the case of Jagmohan Singh[7] in 1973, in which the Petitioner challenged the constitutional validity of death penalty for being violative of Article 19 and 21. The five Judge Bench of the Hon’ble Supreme Court held that the choice of awarding death sentence is done in accordance with the procedure established by law. The death sentence was again challenged in 1979 in Rajendra Prasad Case[8] and in 1980 in Bachchan Singh Case which was reinstated and affirmed in a series of cases before Hon’ble Supreme Court[9]. It was the view of Hon’ble Justice V.R. Krishna Iyer in the Rajendra Prasad Case, were he held that capital punishment would not be justified unless it was shown that the criminal was dangerous to the society.

The Narcotic Drugs and Psychotropic Substances (Prevention) Act 1985, being the first legislation in India to control and regulate the operations relating to narcotic drugs and psychotropic substances. With rising instances of Drug consumption and sale, it became important to enact such legislation providing for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances which incorporates the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances, ratified by India in form of this legislation.

Constitutional validity of death penalty under the Narcotic Drugs and Psychotropic Substances (Prevention) Act 1985 was already under consideration once before the Hon’ble Bombay High Court in the case of Indian Harm Reduction Network v. Union of India[10]. The main contention before the Hon’ble Court was with respect to mandatory punishment of death sentence under the Act and waiving off judicial discretion. The Act 2 of 1989 inserted the concept of death penalty for repeat offenders under the purview of the legislation.

The binding nature of Section 31A[11] of the Act upon the judges to pronounce death penalty in the case of repeated offenders deprived the judges of their discretionary power to consider any other punishment in such cases. Although, the Hon’ble Bombay High Court rejected the contention raised by the Petitioner to declare the legislation as being against the Article 14 of the Constitution but considered the binding nature of the act upon the Judges to convict the person only with capital punishment. The Hon’ble Court instead of declaring Section 31A of the Act unconstitutional and void-ab-initio, it decided to follow the alternative remedy of reading down of the section as a form of directory and the words ‘Shall be punishable with death’ was directed to be read down as ‘May be punishable with death’ in relation to repeated offenders falling under the ambit of Section 31A of the Act. This restored the discretionary powers of the judges, thereby opting not to pronounce death penalty and consider a less severe punishment under any circumstances.

The NDPS Amendment Act, 2014 brought a substantive change in the concept of the NDPS Act, 1985. The judges across the country began taking a liberal approach towards the offenders falling under the category of repeated offenders under Section 31A of the Act. The Hon’ble Courts realizing the gravity of the punishment and the availability of choice upon the courts with respect to capital punishment always moved against the concept of death penalty (only given in rarest of rare cases). The Hon’ble Gujarat High Court in case of State Of Gujarat v. Anwar Shaikh Amir Shaikh Baig @ Raju[12] considered the injustice to the Petitioner even though already being convicted under the NDPS Act and therefore took an alternative recourse by not awarding death penalty since the punishment for other offences under the Act was almost undergone by the Petitioner/Appellant. This view came after the amendment to the act which changed the mindset of the Hon’ble Courts with respect to mandatory death penalty in such cases.

Since the earliest of the ages recorded, the loss of a human life has always been one of the greatest tragedies of all time and neither any State nor Central Government can quantify the value of any human life. It is the value and dignity of any human being’s soul, such an extensive amount of debate has been moving on with respect to inclusion of capital punishment. Although, there cannot be any replication of human soul with any other aspect but it is important to set forth an example to other living beings about their actions and its consequences which effect public at large. It is because of these acts which affects a large part of the society and leave a greater stigma in their minds and hearts forever, these kinds of cruel acts called capital punishments still persist within our daily habitat.


[1] Article 21- No person shall be deprived of his life or personal liberty except according to procedure established by law.

[2]Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition
of the death penalty, Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989.

[3]General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings”. ANNEX VI. Retrieved 30 July 2013

[4] Appendix B of Law Commission of India’s 262th Report named “Death Penalty”, August 2015 retrieved from http://lawcommissionofindia.nic.in on 12.10.2015

[5]Bachan Singh v State of Punjab (1980) (2 SCC 684)

[6]Mithu vs state of Punjab1983 SCR (2) 690

[7] Jagmohan Singh v. State of U.P., AIR 1973 SC 947

[8] Rajendra Prasad v. State of U.P., AIR1979 SC 916

[9] Jumman Khan v. State of UP, AIR 1991 SC 345 and Shashi Nayar v. Union of India, AIR 1992 SC 395

[10] 2012 Bom CR(Cri) 121

[11] 31A. 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 27A and for offences involving commercial quantity of any narcotic drug 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 transhipment, 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:

                Particulars of narcotic drugs/psychotropic substances                                           Quantity 
(i)Opium . . . . . . . . . .10 kgs.
(ii)Morphine . . . . . . . . . .1 kg.
(iii)Heroin . . . . . . . . . .1 kg.
(iv)Codeine . . . . . . . . . .1 kg.
(v)Thebaine . . . . . . . . . .1 kg.
(vi)Cocaine . . . . . . . . . .500 grams
(vii)Hashish . . . . . . . . . .20 kgs.
(viii)Any mixture with or without any neutral material of any of the above drugs lesser of the quantity between the quantities given against the respective narcotic drugs or psychotropic substances mentioned above forming part of the mixture
(ix)LSD, LSD-25 (+) – N, N-Diethyllyser gamide (d-lysergic acid diethylamide)500 grams
(x)THC (Tetrahydrocannabinols, the following Isomers: 6a (10a), 6a (7),7,8,9,10,9 (11) and their stereochemical variants)500 grams
(xi)Methamphetamine(+ )-2-Methylamine-l-Phenylpropane1,500 gram
(xii)Methaqualone (2-Methyl-3-0-tolyl-4-(3h—)quinazolinone)1,500 gram
(xiii)Amphetamine (+)-2-amino-1-phenylpropane1,500 gram
(xiv)Salts and preparations of the psychotropic substances mentioned in (ix) to (xiii)1,500 gram;

(b) financing, directly or indirectly, any of the activities specified in clause (a), shall be punished with punishment which shall not be less than the punishment specified in section 31 or with death.

(2) Where any person is convicted by a competent court of criminal jurisdiction outside India under any law corresponding to the provisions of section 19, section 24 or section 27A and for offences involving commercial quality 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.

[12] Criminal Appeal No.3068 of 2008

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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