The Supreme Court on Tuesday held that when an Indian prisoner has been convicted and sentenced in a foreign country and is transferred to India under the Repatriation of Prisoners Act, 2003, the duration of sentence imposed on such person shall be subject to such terms and conditions agreed to between India and that country.
The Division Bench of Justices L. Nageswara Rao and B.R. Gavai passed this order while hearing a petition filed by Union of India & Anr.
In this matter, 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 on March 04, 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 be taken into account for revision of his release date. By an order dated December 3, 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 May 02, 2019. Aggrieved thereby, the appeal was filed.
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 convicted persons from foreign countries 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.
The Court noted, “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 October 9, 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 March 4, 2016 and a warrant of transfer was issued on October 24, 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 December 3, 2018, his representation for reduction of sentence term was rejected.
While allowing the 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 the Court on August 26, 2019 in the SLP and the judgment of the High Court was stayed.
Madhvi Divan, Additional Solicitor General for India appearing for the Appellant, relied upon the statement of objects and reasons of the 2003 Act to submit that the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State, though the enforcement of the sentence is governed by the law of the receiving State.
She further submitted that the Central Government may accept the transfer of the prisoner in accordance with Section 12 of the 2003 Act subject to the terms and conditions as are agreed upon between India and another contracting State. Section 13 (6) of the 2003 Act gives discretion to the Central Government to adapt the sentence of imprisonment passed against the prisoner in the contracting State if it is incompatible with the Indian law as to its nature, duration or both. As per Section 13 (6), the adaptation should be compatible with the sentence of imprisonment provided for a similar offense, had the offense been committed in India.
According to the proviso to Section 13 (6), the sentence adapted shall as far as possible, correspond to the sentence imposed by the judgment of the contracting State to the prisoner and such adapted sentence shall not aggravate the punishment by its nature, duration or both relating to the sentence imposed in the contracting State.
A.M. Dar, Senior Counsel appearing for the respondent, justified the judgment of the High Court and submitted that no reasons have been given by the Government for rejecting the representation preferred by the Respondent for reduction of sentence.
He submitted that the Respondent is being discriminated against as the Government of India has reduced the sentence in respect of other persons who have been repatriated to India.
The Court further noted,
He also referred to a judgment of the High Court of Bombay by which the sentence of the petitioner therein was reduced to 20 years from 30 years. During the course of hearing, we were informed that the said judgment is subject matter of a Special Leave Petition pending in the Court.
To substantiate its argument, the Appellant placed on record a document titled “Commonwealth Human Rights Initiative”, Bringing them Home – Repatriation of Indian Nationals from Foreign Prisons: A Barrier Analysis, 2017. In this document, a reference has been made to the ‘Guidelines for the Transfer of Sentenced Persons under the Repatriation of Prisoners Act, 2003’ issued by the Ministry of Home Affairs, Government of India on August 10, 2015 under the Repatriation Act, 2003.
The Court opined 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.
The Court held that,
Reference to Indian law in Section 13 (6) 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 to the Central Government to adapt the sentence imposed by the Supreme Court of Mauritius to be compatible with a sentence of imprisonment provided for the similar offense. 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 offense 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 High Court allowed the 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 offense 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.
“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 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,” the Court said allowing the appeal.