Any request for transfer of Indian convict jailed abroad, from contracting State to India shall be subject to terms & conditions as stated in agreement between Foreign Country & Indian Govt.: SC

Read Judgment: Union of India & Anr. V. Shaikh Istiyaq Ahmed & Ors.

Pankaj Bajpai

New Delhi,  January 12, 2022: The Supreme Court has opined that representation for scaling down of the sentence imposed by the Mauritius Supreme Court on the accused under Dangerous Drugs Act, can only be considered by the Indian Central Government, if such sentence is not in consonance with Section 13 (6) of the Repatriation of Prisoners Act, 2003, and Article 8 of the Agreement for transfer of prisoners as entered into between Republic of India and Republic of Mauritius. 

A Division Bench of Justice L. Nageswara Rao and Justice B.R. Gavai observed that question of adaptation of the sentence can only be raised when the Central Government is convinced that the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law. 

Going by the background of the case, Shaikh Istiyaq Ahmed (Respondent) was convicted by the Supreme Court of Mauritius u/s 30(1)(f)(II), 47(2) and 5(2) of the Dangerous Drugs Act for possession of 152.8 grams of heroin and was sentenced to imprisonment for 26 years. Later, he was transferred to India as per the Repatriation of Prisoners Act, 2003, pursuant to which he preferred a representation u/s 13(6) of the 2003 Act and requested for scaling down the sentence to 10 years as per Section 21 (b) of the Narcotics Drugs and Psychotropic Substances Act, 1994 (NDPS Act). In the same representation, he also requested that the sentence that he had already undergone in Mauritius may be taken into account for revision of his release date. 

By an order dated December 3, 2018, the Ministry of Home Affairs, Government of India informed the Respondent that the period spent by him in remand will be deducted from the sentence of 26 years. However, another order was passed on the same day, rejecting his request for reduction of sentence to 10 years from 26 years. The said order rejecting the representation for reduction in sentence when challenged before the Bombay High Court, came to be allowed. 

After considering the submissions, the Top Court noted that as per the Repatriation of Prisoners Act, 2003, the enforcement of sentence of the repatriated prisoner has to be governed by the law of the receiving State, however in doing so, the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State.

Section 12 of the 2003 Act makes it clear that the transfer of a prisoner who is a citizen of India from a contracting State wherein he is undergoing sentence of imprisonment may be accepted by the Central Government, subject to certain conditions that may be agreed between India and the contracting State, added the Court. 

Speaking for the Bench, Justice Rao found that the sentence imposed by the Supreme Court of Mauritius in the present case is binding on India, as a warrant of detention was issued in which it was specified that the Respondent has to undergo a sentence of 26 years.

“The High Court allowed the Writ Petition only on the ground that there is incompatibility between the sentence imposed on the Respondent by the Supreme Court of India and a sentence that would have been imposed on the Respondent if a similar offence would have been committed in India. In doing so, the High Court failed to examine the statement of object and reasons for the 2003 Act, the scope of Sections 12 and 13 of the 2003 Act and the agreement for transfer of prisoners as entered into between Republic of India and Republic of Mauritius”, observed the Bench.

Therefore, observing that the adaptation of sentence from 26 years to 10 years as per Section 21 (b) of the NDPS Act was rejected by the Central Government on the ground that it would amount to reduction of sentence by 16 years which would not be in consonance with Section 13 (6) of the 2003 Act and Article 8 of the Agreement, the Apex Court allowed the appeal by the Union of India.