Foreign Court's Sentence On Repatriated Indian Convict Not To Be Reduced Just Because It Is Higher Than Similar Sentence In India : Supreme Court

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. Factual Background 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 Court's Sentence On Repatriated Indian Convict Not To Be Reduced Just Because It Is Higher Than Similar Sentence In India : Supreme Court

Sohini Chowdhury

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