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Union of India v. Shaikh Istiyaq Ahmed

Repatriation of Prisoners Act, 2003 – Ss. 12 & 13 – Transfer into India – Determination of prison and issue of warrant for receiving transfer in India.

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.

Question of Law

Interpretation on Sections 12 and 13 (6) of the 2003 Act and Article 8 of the transfer of sentenced prisoners’ agreement entered between Indian and Mauritius.

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: –

A. 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.

B. 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.

C. 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.

D. 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.

E. The imprisonment of the transferred prisoner shall be in accordance with the warrant.

F. 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.

G. 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.

Facts of the Case

In so far as the conviction and sentence of the Respondent is concerned, he 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 after taking into account the mitigating circumstances pleaded by 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. While allowing the Writ Petition filed by the Respondent, the High Court was of the opinion that if the offence was committed in India, the Respondent would have been sentenced to for a maximum period of 10 years as provided in Section 21(b) of the NDPS Act. The reason given by the authorities for not accepting the request made by the Respondent for reduction of sentence by 10 years was found to be not justifiable. The rejection of the request of the Respondent was found to be in violation of Section 13 (6) of the 2003 Act. On such findings, the High Court declared that the Respondent was entitled for the benefit of adaptation of sentence in terms of Section 13 of the 2003 Act. Notice was issued by this Court on 26.08.2019 in the SLP and the judgment of the High Court was stayed. 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.

Case Number : Criminal Appeal No. 71 of 2022 (Arising out of SLP (Crl.) No. 7723 of 2019); January 11, 2022.

Hon’ble Mr. Justice L. Nageswara Rao pronounced the judgment of the Bench comprising His Lordship and Hon’ble Mr. Justice B. R. Gavai.

For Petitioner(s) Ms. Madhavi Divan, ASG. Mr. Arvind Kumar Sharma, AOR For 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.

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