While observing that there is no statistical data to conclusively establish that imposition of death penalty will definitely lead to reduction of crime committed by others in society, the Calcutta High Court allowed the Death Reference Appeal of a habitual offender.
The Appellant-convict, Ansar Rahmanand had been convicted for possession of heroin above commercial quantity on two occasions and had been punished under the NDPS Act. Nonetheless, he was found to be in possession of 3.5 kgs of heroin. Accordingly, the Additional District and Sessions Judge observed that the Appellant appeared to have a pronounced propensity to recidivism and he did not appear to show any indication of reformation, and imposed death penalty on him.
Commuting this sentence, Justice Joymalya Bagchi and Justice Suvra Ghosh 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 15 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."
The court said that imposition of 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 the future. Reliance was placed on Bachan Singh v. State of Punjab, 1982 (3) SCC 24.
By the same order, the high court dismissed the criminal appeal filed by the co-accused, Deepak Giri, who was accused to be in possession of the rented premises wherefrom 50 kgs heroin was recovered. The court rejected his plea that the premise was not under his exclusive possession and relied on his statement recorded under Section 67 of the NDPS Act, wherein he admitted that he was a tenant in the aforesaid premises and was carrying on business in heroin along with Ansar Rahman.
The court however criticized the trial court for jumbling up both the recoveries, i.e., recovery of 3.5 kgs heroin from Ansar Rahmanand and 50 kgs heroin from Dipak Giri. The high court said that the two recoveries were clearly separate and distinct from one another although they may have occurred in the course of same transaction.
"Under such circumstances, it was incumbent on the Trial Judge to frame separate heads of charge with regard to each of the recovery indicating identity of the accused from which such recovery was made and the time and place of such recovery," the high court said.
However, the court said it was not unmindful of the fact that merely because the trial judge had prepared a jumbled up charge, the accused persons could not be given a reprieve unless it occasioned a failure of justice.
"Examining the proposition from that perspective, I conclude from an analysis of the extensive cross-examination resorted at the behest of the accused persons including their responses during examination under Section 313 of the Code of Criminal Procedure that notwithstanding the aforesaid irregularities in the framing of charge the accused persons were fully aware of the accusation levelled against them and had effectively defended themselves by cross-examining witnesses and replying to questions posed to them under Section 313 of the Code of Criminal Procedure. Hence, I hold that the aforesaid charge though framed in a jumbled up manner and not in a strict compliance of Section 218 of the Code of Criminal Procedure has neither caused prejudice to the appellants nor has occasioned any failure of justice," the court observed.
The Appellants were represented by Advocates Jayanta Narayan Chatterjee, Apalak Basu, Moumita Pandit, Indrajeet Dey and Jaysree Patra, the Centre by Advocates Jiban Kumar Bhattacharyya and Uttam Basak and the State by APP Arun Kr. Maity and Advocate Sanjoy Bardhan.
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