11 Dec 2020 7:50 AM GMT
The Supreme Court on Thursday listed for hearing in January, 2021 the Union of India's appeal against the Bombay High Court direction to the Centre to revise a convict's release date by taking into consideration the adoption of sentence in terms of Section 13(6) of the Repatriation of Prisoners Act, 2003 and order his release after calculating his date of release.The bench headed by Justice A....
The Supreme Court on Thursday listed for hearing in January, 2021 the Union of India's appeal against the Bombay High Court direction to the Centre to revise a convict's release date by taking into consideration the adoption of sentence in terms of Section 13(6) of the Repatriation of Prisoners Act, 2003 and order his release after calculating his date of release.
The bench headed by Justice A. M. Khanwilkar was hearing the Centre's SLP against the 2019 Bombay High Court judgment allowing a petition filed by one Shaikh Istiyaq Ahmed, who was lodged in Thane Central prison after being convicted of being a drug trafficker by the Supreme Court of Mauritius in 2014 and sentenced to 26 years in prison. He was transferred to India three years later, in 2017. The High Court had observed: "The quantity of drug possessed by the petitioner would fall in category (b) i.e. intermediate quantity and therefore if he would have been tried in India under the existing regime after coming into force of the new amendment, he would have been liable for sentence of 10 years under Clause (b) of Section 21 of the NDPS Act. Taking into consideration the fact that if the same offence committed by the petitioner in Mauritius was committed in India, he would have been imposed a penalty prescribed under Section 21(b) and in such circumstances, the compatibility of the sentence would not only require compatibility of duration but also the nature of the offence. The mere reason that if the prayer of the petitioner is granted it would amount to reduction of sentence by 16 years cannot be a valid justification for rejection of the prayer of the petitioner."
"This case involves the interpretation of section 13 of the Repatriation of Prisoners Act. It is a very important, very sensitive issue which will impact many cases. It also affects diplomatic relations of the country", urged ASG Madhavi Diwan.
As the bench showed the inclination to adjourn the matter on account of being tied up in another long hearing, the ASG pressed, "I am ready to argue today also...the issue is that on the last occasion also, they had pressed for bail. But Your Lordships had felt that important issues arise and had deferred the bail plea"
On Thursday, the bench, also comprising Justice B. R. Gavai, agreed to hear the matter in January, keeping the plea for ad-interim bail deferred until then.
The Supreme Court had stayed the impugned judgment of the Bombay High Court last year. In October this year, a bench headed by Justice Rohinton Nariman had listed the case for final hearing in December "as important questions arise". The application for ad-interim bail was also deferred.
Ahmed was charged with the offence of wilfully, unlawfully and knowingly being in possession of dangerous drugs for the purposes of distribution in Mauritius. He was charged for carrying 152.8 gms of heroin powder with (a) 15.9 grams contained in a double plastic sachet, and (b) 136.9 grams contained in 39 white plastic capsules.
A division bench of Justices Ranjit More and Bharati Dangre allowed Ahmed's plea and directed the authorities to revise his release date by taking into consideration the adoption of sentence in terms of Section 13(6) of the Repatriation of Prisoners Act, 2003 and order the release of the petitioner after calculating his date of release.
The petitioner was arrested on October 23, 2008 and has been in jail since then. In light of the agreement entered into between the Government of India and the Court of Mauritius for transfer of prisoners, he came to be transferred to India from Mauritius in 2017 to undergo the remainder of his sentence in Indian prison.
According to the petitioner, he enquired with the jail authorities about the date of his release after spending a total of 1,912 days in prison which would translate to 5 years 2 months and 27 days. He was informed that the said period, i.e., 1,912 days, was not included by the jail authorities in the sentence, while adopting the petitioner's transfer from Mauritius.
The petitioner's sister forwarded an email communication to the Government of India, Ministry of Home Affairs, on April 19, 2017, and the petitioner came in possession of some related papers. On the basis of this scanty material, the petitioner made a representation before the said ministry.
By the first order, the grievance of the petitioner about deduction of the period spent by him on remand in Mauritius not being taken into account while calculating his sentence during transfer from Mauritius to India was considered positively and it was ordered that the period spent on remand by the petitioner will be deducted from the sentence of 26 years awarded to him. The grievance of the petitioner as regards the adoption of sentence in terms of Section 13(6) of the Repatriation of Prisoners Act, 2003, however, came to be rejected. This was challenged before the high court.
Advocate MM Najmi appeared on behalf of the petitioner and questioned the ministry's decision to reject the petitioner's prayer for reduction of sentence under the Repatriation of Prisoners Act, on the ground that it would lead to a reduction of sentence by 16 years, on the ground that it is not in consonance with Section 13(6) of the Repatriation of Prisoners Act, 2003, and Article 8 of the Transfer of Sentenced Persons Agreement between India and Mauritius.
He pointed to Article 8 of the Indo-Mauritius Agreement on transfer of sentenced persons which provides that the receiving state shall be bound by the legal nature and duration of the sentence as determined by the transferring state. He submitted that the said agreement contemplates that the nature and duration of the punishment or measure should correspond with the sentence that is imposed by the judgment of the transferring state.
Whereas, appearing for the Union, Ministry of Home Affairs, advocate Hiten Venegaokar placed heavy reliance on Article 8 of the Agreement on Transfer of Sentenced Persons between the two nations and would submit that the said agreement provides that the receiving States shall be bound by the legal nature and duration of the sentence as determined by the transferring State, meaning India was bound by the sentence imposed by the Supreme Court of Mauritius.
After examining the above submissions and the Act of 2003, the court noted: "If a similar offence was committed in India the petitioner would have been subjected to the NDPS Act, 1985 regime and he would have warranted a penalty under Section 21 of the said enactment. The NDPS Act which provides for deterrent punishment for various offences related to illegal trafficking in Narcotic Drugs and Psychotropic Substance contained a uniform punishment of minimum 10 years rigorous Imprisonment which may be extended upto 20 years. While the enactment envisages severe punishment for drug traffickers it also envisages a reformative approach towards the addict."
Thus, the petition was allowed and the court ruled that the petitioner was entitled to adoption of sentence under Section 13(6) of the Repatriation of Prisoners Act, 2003.
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