No scaling down of sentence to 10 years as per NDPS Act for man sentenced to 26 years in prison by Mauritius SC for being in possession of over 150 gms of heroin: SC

Supreme Court: In a case where a man was arrested in Mauritius after being found to be in possession of 152.8 grams of heroin and was sentenced to 26 years in prison by the Supreme Court of Mauritius, the bench of L. Nageswara Rao and BR Gavai has upheld the Central Government’s decision rejecting the request for scaling down the sentence from 26 years to 10 years and has found it to be in accordance with the provisions of the Repatriation of Prisoners Act, 2003 and the agreement entered into between India and Mauritius.

Factual Background

• The respondent had travelled twice to Mauritius in the guise of doing business in scrap metal. On the third occasion, he was found to be in possession of 152.8 grams of heroin and was arrested. The Supreme Court of Mauritius convicted the Respondent and sentenced him to imprisonment for 26 years.
• On 09.10.2015, an undertaking was given by the Respondent that he will abide by the terms and conditions of the sentence adaptability order issued under the agreement/treaty on transfer of sentenced prisoners entered into between India and Mauritius while making a request for his repatriation to India. Subsequently, his repatriation to India was approved on 04.03.2016 and a warrant of transfer was issued on 24.10.2016.
• After the transfer of the Respondent to India under the 2003 Act, the Respondent preferred a representation to the Ministry of Home Affairs, Government of India for reduction of sentence from 26 years to 10 years which is the maximum punishment prescribed under Section 21 (b) of the NDPS Act as applicable for the quantity of heroin seized from the Respondent.
• By an order dated 03.12.2018, his representation for reduction of sentence term was rejected.

Analysis of the provisions of the Repatriation of Prisoners Act, 2003

The object of the 2003 Act is to provide an opportunity to the convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation. One of the salient features of the 2003 Act is also that 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.

While operating in accordance with this object and feature, 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 State. The decision to be taken by the Government on the representation preferred for transfer, therefore, shall be subject to the agreement entered into between Republic of India and Republic of Mauritius regarding the transfer of prisoners.

Article 8 of the said agreement categorically states that while continuing the enforcement of the sentence, India shall be bound by the legal nature and duration of the sentence as determined by transferring State.

On a combined reading of Section 12 and 13 of the 2003 Act and Article 8 of the Agreement, the following principles can be deduced: –

1. 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.
2. 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.
3. 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.
4. 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.
5. The imprisonment of the transferred prisoner shall be in accordance with the warrant.
6. 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.
7. 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.

Applicability of the law to the case at hand

Considering the law and the facts of the case, it was held that the sentence imposed by the Supreme Court of Mauritius in this case is binding on India. A warrant of detention was issued in which it was specified that the Respondent has to undergo a sentence of 26 years. As per Section 13(4), the sentence shall be 26 years.

“The question of adaptation of the sentence can only be when the Central Government is convinced that the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law.”

Reference to Indian law in Section 13 (6) of the 2003 Act is not restricted to a particular Section in NDPS Act. Incompatibility with Indian law is with reference to the enforcement of the sentence imposed by the Supreme Court of Mauritius being contrary to fundamental laws of India. It is only in case of such an exceptional situation, that it is open the Central Government to adapt the sentence imposed by the Supreme Court of Mauritius to be compatible to a sentence of imprisonment provided for the similar offence.

“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 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 Court held that te reasons recorded by the Central Government to reject the request for scaling down the sentence are in accordance with the provisions of the 2003 Act and the agreement entered into between India and Mauritius as discussed above. Hence, the Court upheld the order of the Central Government.

[Union of India v. Shaikh Istiyaq Ahmed, 2022 SCC OnLine SC 36, decided on 11.01.2022]

*Judgment by: Justice L Nageswara Rao

Counsels

For appellant: ASG Madhvi Divan

For respondent: Senior Advocate A.M. Dar