Indian Harm Reduction Network v. Union of India, 2012 Bom CR(Cri) 121

1. SEBI.S
GOVT. LAW COLLEGE
ERNAKULAM
Indian Harm Reduction Network
v.
Union of India, 2012 Bom CR(Cri) 121

2. COURT : Bombay High Court
BENCH: Division Bench
Justice A.M. Khanwilkar
Justice A.P. Bhangale.
AUTHOR OF THE JUDGEMENT
Justice A.M. Khanwilkar

3. PETITIONER
Indian Harm Reduction Network, a Society registered
under Societies Registration Act, 1860, Registration No.
S/58430/2007, having its office at Vasant Vihar, New
Delhi 110057
RESPONDENT
1. The Union of India, through
1A. Secretary, Department of Revenue, Ministry of
Finance, New Delhi 110 001
1B. Director General, Narcotics Control Bureau, Ministry
of Home Affairs, New Delhi 110 066
1C. Zonal Director Narcotics Control Bureau, Mumbai
Zonal Unit, Mumbai 400 001
2. State of Maharashtra

4. FACTS OF THE CASE
 In this case, the petitioner Indian Harm Reduction
Network(IHRN), A consortium of NGO’s working for
human drug policies in India filed a writ petition under
Article 226 of the constitution of India before Bombay
High Court, challenging constitutional validity of
Section 31A of NDPS Act on grounds that it violates
Article 14 and Article 21 of the Indian Constitution.
Section 31A of NDPS Act provides mandatory death
penalty for subsequent conviction in some cases.

5. ISSUES
 Whether Section 31A, NDPS Act violates Article 14 of
the Constitution of India?
 Whether Section 31A, NDPS Act violates Article 21 of
the Constitution of India?
 Whether Section 31A is void ab initio?
 Whether ‘shall’ may be replaced by ‘may’? Whether
‘mandatory death sentence’ may be replaced to
‘optional death sentence’?

6. CONDITIONS FOR APPLICATION OF
SECTION 31 A
There must be two or more convictions under
prescribed provisions and circumstances.
First conviction
He must have been convicted either under Section 19,
Section 24, Section 27A or for commercial quantity.
Section 19, 24 and 27A is independent of any
quantity of drugs.
Second conviction
Second conviction must be for prescribed quantity of
contraband NDPS.
Under Section 31A quantity has been prescribed.
First and second conviction must be according to
above mentioned conditions. If either is missing

7. ARGUMENTS BY THE PETITIONER
INHUMANE: Mandatory death penalty for drug offences is
excessive, unscientific and inhumane.
ARTICLE 21 AND MANEKA GANDHI CASE
Procedure must be just, fair and reasonable. According to
the petitioners, breach of such safeguards guaranteed to
the accused renders the procedure for capital sentencing
under Section 31A unfair, unjust and arbitrary.
DENIAL OF RIGHT OF PRE-SENTENCE HEARING [SECTION 235(2)]
The petitioners assert that Section 31A is violative of Article
21 of the Constitution, more particularly on account of
denial of procedural safeguards amongst others, right of
pre-sentence hearing on the question of sentence.
Further, the imposition of standardised or mandatory death
penalty betrays the well-established principle that
sentencing must be individualised, and ought to depend on
the circumstances of the offence as well as the offender.

8. VIOLATION OF SECTION 354(3)
Section 354(3), Cr.P.C says that special reasons must be
written for imposing death sentence.
In the Case of Bachan Singh v. State of Punjab, Supreme
Court observed that death sentence must be awarded in
‘Rarest of rare Cases’.
The requirement of recording special reasons by the Court for
imposing death penalty under Section 31A is completely
done away with and the exercise of judicial discretion on
well-recognised principles, which is the highest safeguard
for the accused, and is at the core of administration of
criminal justice, is impaired.
VIOLATION OF SEPARATION OF POWER
According to the petitioners, taking away the judicial
discretion in the matter of sentencing inevitably impinges
upon the doctrine of separation of powers and the rule of
law, for, sentencing is judicial function, centred on
administration of justice. Section 31A completely eliminates
judicial discretion in sentencing. That violates the
constitutional norms of separation of powers and rule of

9. VIOLATION OF ARTICLE 14
The petitioners have also attacked the validity of Section 31 A on
the touchstone of Article 14 of the Constitution of India, which
postulates that classification for the purpose of legislation must
be reasonable. According to the petitioners, the distinction
between persons covered by law and those left out of it should
be based on an intelligible differentia: and that differentia must
have a rational nexus to the object sought to be achieved by
law.
DISPROPORTIONATE PENALTY
According to the petitioners, the death penalty for drug crimes is
disproportionate, for which reason, it is opposed to the tenets of
Article 14 and 21 of the Constitution. Mandatory death penalty
is opposed to the Constitutional obligation to protect the right to
life of person accused of drug crimes. According to the
petitioners, the narcotic drugs and psychotropic substances are
not abhorrent, per se. They serve genuine medical and
scientific needs of the community, and, as such, are beneficial
to society.
ICCPR(ARTICLE 6)
Reliance has been placed on Article 6 of the ICCPR which,
according to the petitioners, grants protection against the

10. ARGUMENTS BY THE RESPONDENT
DEATH PENALTY IS NOT CRUEL
Relying on the decisions of the Apex Court, it was
argued that the death penalty cannot be considered
as “cruel and unusual punishment’’.
DEATH PENALTY FOR HEINOUS CRIMES
The Apex Court has, time and again, held that narcotic
crimes are more heinous than murder. Murder affects
only individual while narcotic drugs affects society and
economy of a nation.
NON VIOLATION OF ARTICLE 21.
In matters covered by Section 31A, death penalty does
not violate Article 21 of the Constitution. There are
sufficient procedural safeguards which are observed
before pronouncing the mandatory death penalty.

11. NON VIOLATION OF ARTICLE 14
The classification made by Section 31A is between
First-time offenders and
Repeat offenders
engaged in dealing with huge quantity of drugs. It is
reasonable and is based on intelligible differentia.
It has nexus with the objects of the Act.
LEGISLATURE’S PREROGATIVE (PRIVILEGE)
The sentencing is, essentially, a legislative policy.
Whether to grant the Courts any discretion in
sentencing is also Legislature’s prerogative. It is not
open to the Court to reduce the minimum sentence,
when provided for by the Legislature.

12. BOMBAY HIGH COURT OBSERVATION
AND DECISION
 High Court held that Section 31A of the NDPS Act is
not violative of Article 14 but held that Section 31A of
the NDPS Act is violative of Article 21 of the
Constitution of India as it provides for mandatory
death penalty.
 Instead of declaring Section 31A as unconstitutional
and void, the Court acceded that Section 31A may
be construed as directory by reading down the
expression “shall be punishable with death” as “may
be punishable with death”. The provision of
mandatory death penalty under Section 31A was
struck down by the Court.

13. EFFECT OF THE VERDICT
Parliament amended Section 31A in 2014 and
inserted the clause “optional death sentence”.
Now death penalty is not mandatory.

14. JOURNEY OF
SECTION 31-A,
NDPS ACT, 1985
INSERTED IN 1989
Indian Harm
Reduction Network
Case (Section 31-A
was modified)
Amendment in
2014 for
compliance of the
ratio of Indian
Harm Reduction
Network Case.

15. CONCLUSION
 Here, it was held that the court will have
discretion to impose punishment specified
in Section 31of the Act for offences covered
by Section 31A of the Act. But, in appropriate
cases, the Court can award death penalty for the
offences covered by Section 31-A.

16. THANK YOU