12 Jan 2022 3:25 AM GMT
The Supreme Court has delivered a notable judgment laying down the principles for repatriation of prisoners as per the Repatriation of Prisoners Act, 2003.The Court discussed the issue whether the sentence imposed by a foreign court on an Indian convict, who has been repatriated to India, can be higher than the sentence for a similar offence in India. The Court held that the duration of...
The Supreme Court has delivered a notable judgment laying down the principles for repatriation of prisoners as per the Repatriation of Prisoners Act, 2003.
The Court discussed the issue whether the sentence imposed by a foreign court on an Indian convict, who has been repatriated to India, can be higher than the sentence for a similar offence in India. The Court held that the duration of the sentence will be governed by the agreement of transfer between the foreign country and India. The Indian Government can modify the sentence of the foreign court only if such sentence is "incompatible with Indian law". However, the Court added that merely because the foreign court's sentence is higher than that under the Indian law, it does not become "incompatible with Indian law". "Incompatibility" herein would signify being contrary to the fundamental laws of India.
A Bench comprising Justices L. Nageswara Rao and B.R. Gavai allowed a petition filed by the Central Government assailing the order passed by the Bombay High Court, which had allowed the Writ Petition to reduce the sentence imposed by the Supreme Court of Mauritius on the respondent on the ground that there is an incompatibility between the sentence imposed by the foreign court and a sentence that would have been imposed on the respondent if a similar offence would have been committed in India.
The Supreme Court of Mauritius had convicted the respondent under Section 30(1)(f)(II), 47(2) and 5(2) of the Dangerous Drugs Act for possession of 152.8 grams of heroin and sentenced him to imprisonment for a term of 26 years. Thereafter, on 04.03.2016 he was transferred to India under the provisions of the Repatriation of Prisoners Act, 2003 ("Repatriation Act"). The respondent made a representation under Section 13(6) of the Act for reduction of sentence to 10 years as per the terms of Section 21(b) of the Narcotics Drugs and Psychotropic Substances Act, 1994 requesting to take into account the term of sentence already undergone by him in Mauritius. The Central Government vide order dated 03.12.2018 agreed to deduct the period spent in remand but by a separate order rejected the plea to reduce the sentence to 10 years. The order of rejection was challenged before the Bombay High Court, which was allowed on 02.05.2019.
In the present case, the respondent had travelled twice to Mauritius in the guise of doing business in scrap metal. On his third visit, he was found to be in possession of heroin. The Supreme Court of Mauritius had considered the mitigating circumstances before determining his sentence. While applying for the repatriation he had vouched by way of affidavit that he would abide by the terms and conditions of the sentence. Later, upon arrival in India, he had submitted the representation seeking reduction in sentence.
Contentions raised by the Central Government
Additional Solicitor General, Ms. Madhvi Divan appearing for the Central Government submitted that as per the statement of object and reasons of the Repatriation Act, the receiving State was obligated to respect the duration of a sentence determined by the transferring State. Ms. Divan relied upon Article 8 of the agreement between the Governments of Indian and Mauritius to argue that India is bound by the legal nature and duration of the sentence as determined by the transferring State and the discretion under Section 13(6) of the Act to adapt the sentence of imprisonment could be exercised only if it was incompatible with the Indian Law, which she urged was not the case. Emphasising the undertaking submitted by the respondent, Ms. Divan averred that he ought to abide by the sentence imposed by the Supreme Court of Mauritius. She further asserted that the decision to not reduce the sentence of the respondent is prompted by foreign policy which should not be lightly interfered with by judicial review, which would otherwise weaken the bilateral ties.
Contentions raised by the respondent
Senior Advocate, Mr. A.M. Dhar appearing on behalf of the respondent submitted that no cogent reasons were provided by the Government while rejecting the representation for reduction of sentence. It was further contended that the Government on several occasions reduced sentences of prisons repatriated to India. To bolster his arguments, Mr. Dhar referred to a judgment of the Bombay High Court wherein the sentence was reduced from 30 years to 20 years, which he was informed during the course of the arguments was pending before the Apex Court. It was argued that for possession of intermediate quantities of drugs the maximum sentence was 10 years under Section 21(b) of the NDPS Act and therefore, the sentence imposed for a term of 26 years was incompatible with Indian law.
Analysis by the Supreme Court
A document titled "Commonwealth Human Rights Initiative", Bringing them Home - Repatriation of Indian Nationals from Foreign Prisons: A Barrier Analysis, 2017 which referred to 'Guidelines for the Transfer of Sentenced Persons under the Repatriation of Prisoners Act, 2003' issued by the Ministry of Home Affairs, Government of India on 10.08.2015 under the Repatriation Act, 2003 was placed before the Court by the Central Government. The Court observed that as per the guidelines, in case of adaptation of sentence of prisoners convicted on charge of drug trafficking reference is to be made to Narcotics Bureau of India to assess the proposed repatriation and probabilities of future indulgence in similar activities. Before repatriation the prisoner is to be informed about the quantum of sentence they are to undergo in India and the repatriation takes place only when the persons give their consent to such quantum of punishment. The Court noted that the respondent had indeed submitted an undertaking regarding the same on 19.10.2015.
Objective of the Repatriation of Prisoners Act, 2003
Considering that the detention of foreign prisoners was a matter of concern, the Repatriation of Prisoners Act., 2003 was enacted in consonance with the bilateral treaties empowering the Government of India to transfer foreign convicts and also to seek transfer of Indian convicts from other countries. The objective behind such transfer was to allow the convicts to be near their families and to provide a better atmosphere to explore the possibility of social rehabilitation. The salient feature of this Act is that the enforcement of the sentence is to be governed by the law of the receiving State, but it would be bound by the legal nature and duration of the sentence determined by the transferring State.
Principles Culled Out by the Supreme Court
On a combined reading of Section 12 and 13 of the Act and Article 8 of the Agreement, the Supreme Court culled out the following principles -
"A. Any request for transfer of a prisoner from a contracting State to India shall be subject to the terms and conditions as stated in the agreement between a contracting State and Government of India.
B. The duration of imprisonment shall be in accordance with the terms and conditions referred to in Section 12 (1) of the 2003 Act, meaning thereby that the acceptance of transfer of a prisoner shall be subject to the terms and conditions in the agreement between the two countries with respect to the transfer of prisoners. To make it further clear, the sentence imposed by the transferring State shall be binding on the receiving State i.e., India.
C. On acceptance of the request for transfer of an Indian prisoner convicted and sentenced in a contracting State, a warrant shall be issued for detention of the prisoner in accordance with the provisions of Section 13 of the 2003 Act in the form prescribed.
D. The warrant which is to be issued has to provide for the nature and duration of imprisonment of prison in accordance with the terms and conditions as mentioned in Section 12(1) of the Act, that is, as agreed between the two contracting States.
E. The imprisonment of the transferred prisoner shall be in accordance with the warrant.
F. The Government is empowered to adapt the sentence to that provided for a similar offence had that offence been committed in India. This can be done only in a situation where the Government is satisfied that the sentence of the imprisonment is incompatible with Indian law as to its nature, duration or both.
G. In the event that the Government is considering a request for adaptation, it has to make sure that the adapted sentence corresponds to the sentence imposed by the contracting state, as far as possible."
In view of the said principles, the Court opined that the sentence imposed by the Supreme Court of Mauritius was binding in India. A warrant of detention was issued which categorically mentioned that the sentence to be undergone was a term of 26 years. It was asserted by the Court that the question of adaptation would arise only when the Central Government is of the opinion that the sentence imposed in Mauritius is incompatible with the Indian Law. It was clarified by the Court that the reference to Indian law is not restricted to the provisions of the NDPS Act and the 'incompatibility' herein would signify being contrary to the fundamental laws of India. It was further added -
"Even in cases where adaptation is being considered by the Central Government, it does not necessarily have to adapt the sentence to be exactly in the nature and duration of imprisonment provided for in the similar offence in India. In this circumstance as well, the Central Government has to make sure that the sentence is made compatible with Indian law corresponding to the nature and duration of the sentence imposed by the Supreme Court of Mauritius, as far as possible."
The Court upheld the order passed by the Central Government, acknowledging that its decision to reject the scaling down of sentence from 26 years to 10 years was in consonance with the provisions of the Repatriation Act and the agreement between India and Mauritius.
Case Name: Union of India And Anr. v. Shaikh Istiyaq Ahmed And Ors.
Citation: 2022 LiveLaw (SC) 41
Case No. and Date: Criminal Appeal No. 71 of 2022 | 11 Jan 2022
Corum: Justices L. Nageswara Rao and B.R. Gavai
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