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The Calcutta High Court recently took critical note that there is little data to conclusively establish that the death penalty has deterrent value. While commuting the death sentence awarded to a repeat offender convicted under the Narcotic Drugs and Psychotropic Substances (NDPS) Act, the Court observed,
“Imposition of death penalty on the appellant may or may not deter others from committing similar crimes in future. However, no statistical data or empirical study has been placed before me on behalf of the prosecution to conclusively establish that imposition of death penalty would definitely lead to reduction of crime committed by others in society.
In the absence of clear and unequivocal evidence with regard to the deterrent impact of death penalty on crime statistics, I am loath to impose the extreme penalty of death when the alternative sentence of rigorous imprisonment of 30 years and that too without any possibility of remission in the light of the bar engrafted in section 32-A of NDPS Act would serve the purpose of proportionate penology by eclipsing any real possibility of recidivism on the part of the convict.”
Justice Joymalya Bagchi made the observation in the judgment he authored for himself and Justice Suvra Ghosh. During the course of judgment, the Bench was also prompted to warn that Trial Courts must be circumspect when it comes to awarding the death penalty. In this regard, the judgment states,
“… in cases involving capital sentence, the trial judge conducting the trial ought to be most careful and cautious while framing charges so that it does not give an impression that he conducted the proceeding in a cavalier manner with scant regard to the cherished fair trial rights of the accused.“
The Court was dealing with appeals by two persons who had been convicted for heroin possession by a Trial Court in 2016. Whereas Ansar Rahman @ Ramesh Giri was sentenced to death penalty by hanging, his associate Dipak Giri was awarded a 30 year rigorous imprisonment sentence and a fine of Rs 3 lakhs.
As far as the convictions were concerned, the High Court found that it had been proved beyond doubt that both the appellants were guilty of drug possession. Therefore, the Trial Court conviction of the two appellants under Section 21C) read with Section 29 of the NDPS Act was upheld. Accordingly, the prison sentence awarded to Dipak Giri was also upheld.
The question remaining before the Court was whether the death sentence awarded to 75-year old Ansar Rahman should be commuted to imprisonment. The prosecution argued that Rahman had previously been convicted of possessing heroin above the prescribed commercial quantity on two occasions. Therefore, it was argued that the death sentence had been rightly awarded by the trial court, particularly given that the deterrence is one of the avowed objects of the NDPS Act. In this regard, Section 31A of the NDPS Act was cited, which provides for awarding death penalty in certain cases involving repeat offenders.
However, the Bench noted that on an evaluation of Rahman’s crime, based on aggravating and mitigating factors in the case, it was sufficient that the alternative punishment prescribed under Section 31, NDPS Act be imposed on Rahman. The mitigating factors taken into account included his advanced age and absence of any material to show that Rahman had exhibited criminal behaviour when he was in a correctional home following his earlier conviction.
Further, it was noted that the nature and circumstances in which the crime was committed “completely rules out his possibility of committing similar offence if he is kept in correctional home.”
Therefore, the Bench commuted Rahman’s sentence to 30 years rigorous imprisonment and a fine of Rs 3 lakhs, on default of which he would undergo three more years of rigorous imprisonment. The Court observed,
“Balancing the aforesaid aggravating and mitigating circumstances particularly the advanced age of the appellant, I am of the considered opinion imposing the alternate sentence to rigorous imprisonment upto 30 years would rule out any real possibility of the appellant indulging in similar offence upon his release from correctional home in future.”
[Read the Judgment]