In
a rare ruling, a special narcotics court in Mumbai
on Wednesday sent a resident of Kashmir convicted
for drug trafficking to the gallows. Ghulam Malik
was found guilty in two different cases for dealing
in narcotics. And under stringent provisions of
the Narcotic Drugs and Psychotropic Substances
( NDPS ) Act, a second conviction is punishable
only with a mandatory death sentence. Judge P
B Sawant, who sentenced Malik to death, turned
emotional after the sentencing and said, "In
my 29 years in the profession and past ten years
as a judicial officer I had given no capital punishment,
but duty is duty and today I have performed it."
However, a legal expert said the order may be
questioned in the context of the NDPS Act which
essentially raises the penalty if a man is caught
dealing in drugs a second time round.
The Narcotics Control Bureau ( NCB ) had seized
a truck loaded with 142 kg of hashish in Ahmedabad
in January 2002. Documents found in the truck
indicated that 55 kg of the contraband was destined
for Mumbai where it was to be delivered to Malik.
This was the crux of the first case against Malik.
On January 14, 2002, officials from the Mumbai
unit of NCB tracked Malik to his Dongri residence
where they found another 1.8 kg of hashish. Malik
in his interrogation said he had stored more hashish
in a godown in Andheri. Raids on the godown yielded
another 188 kg of hashish. This resulted in him
being booked in a second case. Malik was first
convicted in March 2004 by a fast track court
in Gujarat and sentenced to 10 years RI. Then,
on December 18, 2007, judge Sawant found Malik
guilty in the case against him in Mumbai for the
seizures made from the godown. Special public
prosecutor Arun Gupte then invoked article 31-A
of the NDPS Act which says that a second conviction
is punishable only with a death sentence. Hence
the sessions court gave a death penalty to Malik.
However, advocate Ayaz Khan said article 31-A
required some reinterpretation to understand the
spirit behind it. "In Malik's case both convictions
have come as a result of a single drug transaction
whereas the purpose of the mandatory death sentence
clause is to deter convicts from breaking the
law again and again," said Khan. These questions
will now be considered by the high court when
it looks at the death sentence handed out by judge
Sawant.
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