Supreme Court reduces sentence for a repeat offence under the NDPS Act

In a major and first relief of its kind, the Supreme Court of India ordered a substantial reduction in the sentence imposed under section 31 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) for a repeat offence involving charas [cannabis resin or ‘hash’]The Appellant – Mr. Gulam Mohammad Malik, who hails from Kashmir, was undergoing a cumulative sentence of 40 yrs [10 + 30]imprisonment at Yerwada jail, Pune, Maharashtra in two separate cases under the NDPS Act.

In the first case, which was tried by a Fast Track Court in Himmatnagar, Gujarat, Mr. Malik was convicted and sentenced to undergo rigorous imprisonment for 10 yrs and pay a fine of Rs 1 lakh. The quantity involved in this case was 143 kg of charas. 10 yrs is the minimum punishment for an offence involving more than 1 kg of cannabis resin (which is considered ‘commercial quantity’) under the NDPS Act. Mr. Malik’s appeal was dismissed by the Gujarat High Court. Thereafter, he moved the Supreme Court and the case came to be admitted as Criminal Appeal 1256 of 2009.

In the meantime, Mr. Malik was convicted by the Special NDPS Court, Greater Bombay for the possession of 187 kg of charas. After taking into account the previous conviction, the Special Court sentenced him to death under section 31A of the NDPS Act. At the time, Mr. Malik was the first person to be sentenced to death for a drug-offence in India.

The constitutional validity of section 31A was challenged before the Bombay High Court in separate petitions filed by the Indian Harm Reduction Network (represented by the Lawyers Collective) and Mr. Malik himself. The Bombay High Court overturned the mandatory death sentence under section 31A and directed that the sentencing Court exercise discretion by considering the alternative of awarding a sentence under section 31 of the NDPS Act, which carries a maximum punishment of 30 yrs imprisonment and a fine of Rs 3 lakhs for a subsequent offence.

Mr. Malik’s case was remanded back to the Special Court, which re-sentenced him to death. His appeal in the Bombay High Court was unsuccessful but the Court commuted the sentence of death to a jail term of 30 years under section 31 of the NDPS Act. The Supreme Court admitted Mr. Malik’s appeal in the second case as Criminal Appeal 1322 of 2014.

In January 2017, the Supreme Court heard both of Mr. Malik’s appeals together. The Court was not inclined to interfere with the findings of guilt recorded by the lower Courts. It however, agreed that the sentence of 30 yrs imposed by the Bombay High Court in the subsequent offence was harsh and reduced the same to 16 yrs. Under section 31 of the NDPS Act, the minimum punishment for a subsequent offence involving commercial quantity is 15 yrs imprisonment. Interesting, the Bombay High Court had observed that if Mr. Malik succeeds in overturning his conviction in Criminal Appeal No. 1256 of 2009, he should serve 20yrs imprisonment – the maximum sentence for a first conviction (for commercial quantity) under the NDPS Act.

Most importantly, the Supreme Court directed that the sentences imposed in the two cases run concurrently (exercising powers under section 427(1) of the Criminal Procedure Code, 1973) which, in effect, takes away the sting from the penal provisions for repeat offences under the NDPS Act. The fine imposed on Mr. Malik was also reduced.

In determining the sentence, the Supreme Court took into account the appellant’s age and health, factors which tend to be ignored while awarding punishment under the NDPS Act. The Court however, did not lay down any norms for sentencing – whether for drug crimes or in general, and based its decision “on the facts of this case”. Mr. Malik’s case, where the sentence has been reduced from death to 30 to 16 yrs, once again shows the unguided sentencing practice prevalent in Indian Courts.

Mr. Malik was represented by Mr. Anand Grover, Sr Advocate and Director, along with Ms. Tripti Tandon of the Lawyers Collective. As a result of the Supreme Court’s order dated 01.02.2017 , he will be released from prison in February 2017.