Date of the judgment
Justice L.Nageswara Rao
Appellant -Union of India And Anr.
Respondent - Shaikh Istiyaq Ahmed And Ors.
It was ruled that sentence of a repatriated Indian convict imposed by a foreign court is not to be reduced just because it is higher than a similar sentence imposed in India.
- The respondent was charged under section 30(1)(f)(II), 47(2) and 5(2) of Dangerous Drugs Act (Mauritius) and was sentenced to imprisonment for a term of 26 years for having possession over 152.8 grams of heroin.
- On 4th March 2016, under Repatriation of Prisoners Act, 2003, he was sent to India. An appeal was filed by the respondent under section 13(6) of the Act asking to reduce his term of imprisonment to 10 years referring to section 21(b) of Narcotic Drugs and Psychotropic Substances Act, 1994.
- On 3rd December 2013, the Central Government decided to reduce the time period spent in remand but by a different order dismissed the plea of respondent seeking reduction of imprisonment to 10 years.
- The respondent then challenged this before the High Court of Bombay and the plea was allowed on 2nd May 2019.
- The Central government argued that as per the Repatriation Act, India was bound to respect the time period of sentence imposed by Mauritius. By relying on Article 8 of the agreement between the government of both the Countries, they argued that India is bound by legal nature to follow.
- Also, section 13(6) of Act can only be adopted when the order is incompatible with the Indian Law which was not the situation here.
- They argued that the respondent seeks to set aside the order of Supreme Court of Mauritius. Also, the plea for reducing sentence is influenced by a foreign policy which should not be taken seriously as it will weaken the bilateral ties.
- The respondents argued that no valid reasons were provided by the Central government while rejecting the plea of respondent. Moreover, in many occasions the sentence of prisoners who were repatriated to India was reduced.
- They argued that for the crime of possession of drugs the maximum term of imprisonment was 10 years u/s 21(b) of NDPS Act and hence the sentence imposed for 26 years was incompatible with the Indian Law.
- The central government handed a document to the Court- “Commonwealth Human Rights Initiative, Bringing them Home - Repatriation of Indian Nationals from Foreign Prisons”. It was an analysis referring to the guidelines for transfer of prisoners under Repatriation of Prisoners Act, 2003 which was issued by Ministry of Home Affairs, government of India on 10th August 2015 under the aforesaid Act.
- The Court noted that in similar cases, reference should be made to Narcotics Bureau of India.
- The prisoner should be informed of the punishment he would be going through after repatriation in India and only after giving consent, the prisoner shall be repatriated. Here the respondent submitted the same on 19th October 2015.
- After reading section 12 and 13 of the Act along with Article 8 of the Agreement, Hon’ble Supreme Court picked over some principles-
a) Any request for transferring a prisoner from a State to India will be subject to conditions given in the agreement between India and the respected State.
b) The term of imprisonment shall be according to section 12(1) of the 2003 Act. The sentence imposed by the transferring State will be applicable in India.
c) On accepting the request of transfer of Indian prisoner who was convicted in another State, a warrant must be issued for detention of prisoner as per section 13 of 2003 Act.
d) The issued warrant must mention in it the period of imprisonment and its nature as per the conditions of section 12(1) of the Act, agreed between both the States.
e) The sentence of the prisoner shall be in accordance with the warrant.
f) In situation where the government feels that the nature of the sentence is incompatible with the Indian law, the government has the authority to change the punishment to match the penalty for a similar crime committed in India.
g) If the Government is considering a request for adaptation, it must ensure that the adapted sentence is as close as practicable to the penalty imposed by the contracting state.
- As per these principles the Court held that the sentence imposed in Mauritius was binding in India. Warrant of detention was also issued where it was stated that the term of imprisonment was 26 years.
- Moreover, it was cleared by the Court that the question of adaption will only arise if the central government thinks that the laws are incompatible with the laws of India.
- The Court explained that the use of Indian Laws in not limited to the NDPS Act, and the incompatibility indicated the opposition to the fundamental laws of India.
- Hence the order passed by the central government was upheld by the Court.
The Hon’ble Supreme Court issued a landmark decision establishing the rules for the repatriation of inmates under the Repatriation of Prisoners Act of 2003. The Court debated whether a sentence issued by a foreign court on an Indian offender who has been repatriated to India can be heavier than a term imposed in India for a comparable offence. The period of the punishment will be determined by the transfer agreement between the foreign nation and India, according to the Court. The Indian government can only change a foreign court's decision if it is "incompatible with Indian law."
The Court did emphasize, however, that just because a foreign court's penalty is harsher than that under Indian law does not mean it is incompatible with Indian law. In this case, incompatibility would imply a violation of India's fundamental laws.
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