Foreign Court’s Sentence On Deported Indian Convict Not To Be Reduced Because It Is Higher Than Similar Sentence In India: SC

• The Hon’ble SC has given a notable judgement in which it has delved into the principles to be followed for the deportation/repatriation of prisoners under the Repatriation of Prisoners Act, 2003.
• In the instant case titled Union of India and anr. vs. Shaikh Istiyaq Ahmed and ors. the Supreme Court of Mauritius had convicted the respondent under the provisions of Dangerous Drugs Act for the possession of 152.8 grams of heroin and sentenced him to imprisonment for 26 years. He was transferred to India in March, 2016 under the provisions of the Repatriation of Prisoners Act.
• The respondent appealed to the Central Government to reduce the sentence to 10 years to bring it in consonance with the Narcotic Drugs and Psychotropic Substances Act and also reg=quested to take into account the term of imprisonment already undergone by him in Mauritius.
• The Government agreed to deduct the period spent by him in remand but rejected the plea to reduce the sentence to 10 years. This order of rejection was challenged before the Bombay HC, and it was allowed in May, 2019.
• A document titled “Commonwealth Human rights Initiative”: Bringing them Home- Repatriation of Prisoners Act, 2003 which was issued by the Ministry of Home Affairs on 10 August, 2015, contained ‘Guidelines for the Transfer of Sentenced Persons under the Repatriation of Prisoners Act’ was presented before the SC. According to these guidelines, in the case of adaptation of sentences of prisoners involved in drug trafficking, reference has to be made to the provisions of the NDPS Act. Also, before deportation, the prisoner has to be informed of the quantum of sentence that he will have to undergo in India, and no deportation will be done unless the prisoner gives his consent to the quantum of punishment. It was observed by the Court that the prisoner had, indeed, submitted an undertaking regarding the same.
• The Court also held that the duration of the sentence will be governed by the Agreement of Transfer between the Foreign State and India. Agreeing with the fact that the Indian government can modify the sentence of the foreign court only if it is incompatible with Indian laws, the Court held that merely because the foreign court’s sentence is higher than that of Indian law does not become ‘incompatible with Indian Law’. In order for it to be incompatible, it has to be violative of the fundamental laws of India (section 13(6) of the Repatriation of Prisoners Act).
• After a combined reading of section 12 and 13 of the aforementioned Act, the Supreme Court carved out the following principles-

1. A request for the transfer of a prisoner from a contracting state to India would be subject to the terms and conditions of the agreement between the two contracting States.
2. The sentence of imprisonment imposed by the contracting State shall be binding on India (section 12(1) of the Repatriation Act).
3. On the acceptance of the request of transfer, a warrant shall be drawn up for the detention of the prisoner in accordance with section 12(1) of the Act.
4. The warrant will have to provide for the nature and duration of the imprisonment of the convict in accordance with the terms and conditions mentioned in section 12(1) of the Act (as agreed between the two States).
5. The imprisonment will be in accordance with the warrant.
6. The Government is empowered to adapt the sentence if it is incompatible with the laws of India as to its nature or quantum or both.
7. If the Government is considering the request for adaptation, it has to make sure that the adapted sentence is in conformity with the sentence imposed by the contracting state.

• Thus, the Court, upholding the order of the Central government, held that the sentence passed by the Supreme Court of Mauritius was binding on India.