Repeat Offenders Under Section Section 31 Of NDPS: Double Trouble Explained

This article is written by Atishay Jain, a former UPSC aspirant and a core member of the ApniLaw team. With a strong focus on criminal and regulatory law, the article offers clear insights into complex legislations like the Narcotic Drugs and Psychotropic Substances (NDPS) Act. For any personal queries or suggestions, feel free to reach out to us through our official channel.

The Narcotic Drugs and Psychotropic Substances (NDPS) Act serves as a crucial legal framework for combating drug-related offenses in India. Its primary goal is to curb the production, trafficking, and consumption of illegal substances, with severe penalties for violators. However, one of the challenges within this system is the potential for repeated offenses. Despite stringent laws, many individuals return to drug-related crimes after serving their sentences. This raises questions about the effectiveness of the current approach in addressing the root causes of repeat offenses.

What Is Section 31 Of The NDPS Act?

Section 31 of NDPS Act applies stricter penalties to repeat drug offenders. If someone has a prior conviction under the Act, whether for committing, attempting, abetting, or conspiring, and is convicted again for a similar offence, the punishment increases.

1. The imprisonment is up to 1.5 times the maximum sentence normally allowed.
2. They will be charged up to 1.5 times the standard maximum fine.
3. If the offence has a minimum sentence, repeat offenders face 1.5 times that minimum term and fine.
4. Courts must clearly frame charges under Section 31 when applying enhanced punishment.
5. The Supreme Court and High Courts have upheld this section’s constitutionality.
6. However, they stress the need for proper judicial procedure and discretion.

What Is Section 31A Of The NDPS Act?

Introduced in 1989, Section 31A originally made the death penalty mandatory for serious repeat offences involving large drug quantities. A 2014 amendment made the death penalty discretionary.
This applies to repeat offences involving commercial quantities (Sections 19, 24, 27A, etc.).

1. Courts may impose the death penalty or imprisonment for at least 30 years, which can extend to life imprisonment.
2. A fine is also mandatory. Courts must first consider the death penalty.
3. If not imposed, they must record reasons and apply enhanced imprisonment under Section 31.

What Is The Difference Between Section 31 and Section 31A of NDPS Act?

1. Section 31 is enhanced punishment for repeat offenders.
2. Applies when a person is convicted for the second time under any NDPS offence.
3. No quantity limit applies regardless of the amount of drugs or substances involved.
4. Court can increase the sentence to 1.5 times the maximum punishment prescribed for the offence.
5. If the offence has a minimum punishment, the court may raise it to 1.5 times that minimum.
6. Aims to deter repeat drug offenders by escalating penalties.
7. Offers judicial discretion to determine the degree of enhancement.
8. Commonly used in cases like repeat possession, trafficking, or consumption.

Section 31A is death penalty for serious repeat drug offenders.

1.Applies only when a person is convicted again after a prior conviction under:

Section 19 (embezzlement of opium)

Section 27A (financing illicit traffic) and unauthorized foreign dealing

2. Any offence involving commercial quantity of drugs

3. Targets large-scale trafficking and serious drug crimes.

4. Involves specific minimum quantities, e.g.: 10 kg of opium or 1 kg of heroin or morphine

5. Punishment includes death penalty or life imprisonment.

6. The death penalty is no longer mandatory after a 2011 Bombay High Court ruling.

7. Courts now have discretion to choose between death and life imprisonment.

8. Intended to punish repeat and large-volume drug traffickers harshly.

What Are The Challenges to the Constitutionality of Section 31A?

Legal experts and petitioners have raised multiple constitutional concerns about Section 31A:

1. Article 21 Violation: Mandatory death penalty violated the right to life and personal liberty.
2. No Judicial Discretion: Courts had no room for individualized sentencing.
3. Article 14 Violation: Unequal treatment of similar offences was arbitrary and discriminatory.
4. Cruel Punishment: Ignoring mitigating factors made the penalty inhuman and degrading.
5. Death Row Syndrome: Section 32A blocked sentence suspension or commutation, exposing convicts to prolonged psychological trauma.
6. Violation of Separation of Powers: Sentencing is a judicial task. Mandatory penalties interfered with this role.
7. Lack of Fair Process: Courts didn’t need to explain why they imposed death, leading to procedural unfairness.
8. Due to these concerns, the 2014 amendment restored judicial discretion in imposing the death penalty under Section 31A.

Latest Case Law On Section 31 NDPS Act?

Mohd. Zahid (S) v. State Through NCB (S), Dec 7, 2021,

The Supreme Court upheld stricter punishment for repeat offenders under Section 31 of the NDPS Act. It confirmed that courts can impose enhanced sentences if the accused has a prior NDPS conviction.

Mohd. Zahid was arrested for possessing a commercial quantity of narcotics. The Narcotics Control Bureau (NCB) filed a case under the NDPS Act. During the trial, the prosecution revealed that Zahid had a previous NDPS conviction. This triggered Section 31, which allows for higher punishment for repeat offenders.
Zahid’s counsel argued that the earlier conviction should not apply to the current case. They claimed due process was not followed when invoking Section 31. The defense insisted that the enhanced sentence violated the principle of proportionality.

The Supreme Court disagreed with the petitioner. It clarified that Section 31 specifically targets repeat offenders. If the court finds a previous NDPS conviction, it must consider enhanced punishment. The bench emphasized that Section 31 does not require re-examination of the earlier conviction unless that conviction has been set aside. The Court also explained that a repeat conviction in NDPS cases shows dangerous criminal behavior, justifying stronger penalties.

The Supreme Court upheld the trial court’s decision. Zahid’s enhanced sentence remained valid. This ruling sets a clear precedent: Section 31 applies automatically to repeat NDPS offenders, once a prior conviction is proven. The Court reinforced the deterrent policy of the NDPS Act, signaling a zero-tolerance approach to narcotics crimes.

Conclusion

While the NDPS Act plays a significant role in controlling drug-related crimes, the issue of repeat offenders highlights the need for a more comprehensive strategy. Beyond punishment, there should be a focus on rehabilitation, education, and social reintegration to break the cycle of reoffending. Only by addressing the underlying issues can the law truly succeed in reducing drug offenses in the long term.