Back
2022 Supreme(SC) 23
SUPREME COURT OF INDIA
(From the High Court of Judicature at Bombay)
L. NAGESWARA RAO, B.R. GAVAI, JJ.
Union of India and Another – Appellants
Versus
Shaikh Istiyaq Ahmed and Others – Respondents
Criminal Appeal No. 71 of 2022, S.L.P. (Crl.) No. 7723 of 2019
Decided On : 11-01-2022
For the Petitioner(s): Ms. Madhavi Divan, ASG. Mr. Arvind Kumar Sharma, AOR
For the Respondent(s): Mr. A. M. Dar, Sr. Adv. Ms. Shraddha Suman Chandel, Adv. Mr. Abhay Anand Jena, AOR Mr. Muzaffar Yasinshah Patel, Adv. Mr. Rahul Chitnis, Adv. Mr. Sachin Patil, AOR Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv.
IMPORTANT POINT
Any request for transfer of a prisoner from a contracting State to India shall be subject to terms and conditions as stated in agreement between a contracting State and Government of India.
Headnote:
Repatriation of Prisoners Act, 2003 – Sections 12 and 13(6) and Article 8 of Agreement – Narcotics Drugs and Psychotropic Substances Act, 1994 – Section 21 (b) – Inter-country transfer of prisoners – Quantum of sentence – Object of 2003 Act is to provide an opportunity to convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation – One of salient features of 2003 Act is also that enforcement of sentence of repatriated prisoner has to be governed by law of receiving State, however in doing so, receiving State is bound by legal nature and duration of sentence as determined by transferring State – 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 Central Government, subject to certain conditions that may be agreed between India and contracting State – Decision to be taken by Government on representation preferred for transfer, shall be subject to agreement entered into between Republic of India and Republic of Mauritius regarding transfer of prisoners – Even when sentence is adapted by receiving State (India), nature and duration of punishment shall, as far as possible, correspond with that imposed by transferring State (Mauritius) – Sentence imposed by Supreme Court of Mauritius in this case is binding on India – Even in cases where adaptation is being considered by Central Government, it does not necessarily have to adapt sentence to be exactly in nature and duration of imprisonment provided for in similar offence in India – Reasons recorded by Central Government to reject request for scaling down sentence from 26 years to 10 years are in accordance with provisions of 2003 Act and agreement entered into between India and Mauritius – Appeal allowed. (Paras 11, 12, 14, 15, 16 and 18)
Facts of the case:
Respondent was convicted by the Supreme Court of Mauritius 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 was sentenced to imprisonment for 26 years. He was transferred to India as per the Repatriation of Prisoners Act, 2003 on 04.03.2016. He preferred a representation under Section 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. In the same representation, he also requested that the sentence that he has already undergone in Mauritius may be taken into account for revision of his release date. By an order dated 03.12.2018, Ministry of Home Affairs, Government of India informed 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 was challenged by the Respondent in a Writ Petition before the High Court of Bombay which was allowed by the judgment dated 02.05.2019. Aggrieved thereby, this Appeal is preferred.
Findings of Court:
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.
Result : Appeal allowed.
JUDGMENT :
L. NAGESWARA RAO, J.
Leave granted.
1. The Respondent was convicted by the Supreme Court of Mauritius 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 was sentenced to imprisonment for 26 years. He was transferred to India as per the Repatriation of Prisoners Act, 2003 (hereinafter ‘the 2003 Act’) on 04.03.2016. He preferred a representation under Section 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 (hereinafter ‘NDPS Act’). In the same representation, he also requested that the sentence that he has already undergone in Mauritius may be taken into account for revision of his release date. By an order dated 03.12.2018, 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 was challenged by the Respondent in a Writ Petition before the High Court of Bombay which was allowed by the judgment dated 02.05.2019. Aggrieved thereby, this Appeal is preferred.
2. Detention of foreign prisoners was a matter of concern for the Government of India as well as foreign Governments for which the Repatriation of Prisoners Act, 2003 was enacted in conjunction with bilateral treaties enabling the Central Government to transfer foreign convicted persons to their country and vice versa. One of the objectives of the 2003 Act was the transfer of foreign convicted nationals to their respective nations in order to take care of the human aspect in as much as the said convicts would be near their families and have better chances of social rehabilitation. One of the salient features of the legislation is that the enforcement of the sentence shall be governed by the law of the receiving State. However, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. Section 12 and 13 of the 2003 Act, which are relevant for the adjudication of this case, are as follows:
“12. Transfer into India:
(1) The Central Government may accept the transfer of a prisoner, who is a citizen of India, from a contracting State wherein he is undergoing any sentence of imprisonment subject to such terms and conditions as may be agreed to between India and that State.
(2) If the Central Government accepts the request for a transfer under sub-section (1), then, notwithstanding anything contained in any other law for the time being in force, it may issue a warrant to detain the prisoner in prison in accordance with the provisions of section 13 in such form as may be prescribed.
13. Determination of prison and issue of warrant for receiving transfer in India:
(1) The Central Government shall, in consultation with a State Government, determine the prison situated within the jurisdiction of such State Government where the prisoner with respect to whom a warrant has been issued under sub-section (2) of section 12, shall be lodged and the officer who shall receive and hold him in custody.
(2) The Central Government shall authorize any officer not below the rank of a Joint Secretary to that Government to issue a warrant under sub-section (2) of section 12 and to direct the officer referred to in sub-section (1) to receive and hold the prisoner, with respect to whom the warrant is issued, in custody.
(3) It shall be lawful for the officer referred to in sub-section (1) to receive and hold in custody any prisoner delivered to him under the direction made in the warrant issued under sub-section (2) of section 12 and to convey such prisoner to any prison determined under sub-section (1) for being dealt with in accordance with the said warrant and if the
