caselaws
Supreme Court of India
The Union Of India vs Shaikh Istiyaq Ahmed on 11 January, 2022Author: L. Nageswara Rao
Bench: L. Nageswara Rao, B.R. Gavai
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.71 of 2022
(Arising out of SLP (Crl.) No. 7723 of 2019)
Union of India & Anr.
…. Appellant(s)
Versus
Shaikh Istiyaq Ahmed & Ors.
…. Respondent (s)
JUDGMENT
L. NAGESWARA RAO, J.
Leave granted.
1. 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 (hereinafter, ‘the 2003
Act’) on 04.03.2016. 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
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Psychotropic Substances Act, 1994 (hereinafter, ‘NDPS Act’). In the
Date: 2022.01.11
16:03:47 IST
Reason:
same representation, he also requested that the sentence that he has
1|Page
already undergone in Mauritius may be taken into account for
revision of his release date. By an order dated 03.12.2018, 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 02.05.2019. Aggrieved thereby, this Appeal
is preferred.
2. 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.
2|Page
However, the receiving State shall be bound by the legal nature and
duration of the sentence as determined by the transferring State.
Section 12 and 13 of the 2003 Act, which are relevant for the
adjudication of this case, are as follows:
“12. Transfer into India. —
(1) The Central Government may accept the transfer of a prisoner,
who is a citizen of India, from a contracting State wherein he is
undergoing any sentence of imprisonment subject to such terms and
conditions as may be agreed to between India and that State.
(2) If the Central Government accepts the request for a transfer under
sub-section (1), then, notwithstanding anything contained in any other
law for the time being in force, it may issue a warrant to detain the
prisoner in prison in accordance with the provisions of section 13 in
such form as may be prescribed.
13. Determination of prison and issue of warrant for receiving
transfer in India. —
(1) The Central Government shall, in consultation with a State
Government, determine the prison situated within the jurisdiction of
such State Government where the prisoner with respect to whom a
warrant has been issued under sub-section (2) of section 12, shall be
lodged and the officer who shall receive and hold him in custody.
(2) The Central Government shall authorize any officer not below the
rank of a Joint Secretary to that Government to issue a warrant under
sub-section (2) of section 12 and to direct the officer referred to in
sub-section (1) to receive and hold the prisoner, with respect to whom
the warrant is issued, in custody.
(3) It shall be lawful for the officer referred to in sub-section (1) to
receive and hold in custody any prisoner delivered to him under the
direction made in the warrant issued under sub-section (2) of section
3|Page
12 and to convey such prisoner to any prison determined under
sub-section (1) for being dealt with in accordance with the said
warrant and if the prisoner escapes from such custody, the prisoner
may be arrested without warrant by any person who shall without
undue delay deliver such prisoner to the officer in charge of the
nearest police station and the prisoner so arrested shall be liable for
committing an offence under section 224 of the Indian Penal Code (45
of 1860) and shall also be liable to be dealt with in accordance with
the said warrant.
(4) A warrant under sub-section (2) of section 12 shall provide for—
(a) the bringing of the prisoner into India from a contracting State or
a place outside India;
(b) the taking of such prisoner in any part of India being a place at
which effect may be given to the provisions contained in the warrant;
(c) the nature and duration of imprisonment of the prisoner in
accordance with the terms and conditions referred to in sub-section
(1) of section 12 and the imprisonment of such prisoner in India in such
manner as may be contained in the warrant; and
(d) any other matter which may be prescribed.
(5) Notwithstanding anything contained in any other law for the time
being in force, the imprisonment of a prisoner in compliance with a
warrant issued under sub-section (2) of section 12 shall be deemed to
be imprisonment under a sentence of a court competent to pass such
a sentence of imprisonment in India.
(6) If the sentence of imprisonment passed against the prisoner in the
contracting State is incompatible with the Indian law as to its nature,
duration or both, the Central Government may, by order, adapt the
sentence of such punishment as to the nature, duration or both, as the
case may be, as is compatible to the sentence of imprisonment
provided for a similar offence had that offence been committed in
India:
4|Page
Provided that the sentence so adapted shall, as far as possible,
correspond with 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.”
3. On 24.10.2005, an agreement was entered into between the
Government of India and Government of Mauritius on the Transfer
of Prisoners. Article 8 of this Agreement refers to conditions for
continued enforcement of sentence, which are as follows:
“ARTICLE 8
Continued enforcement of sentence
1. The receiving State shall be bound by the legal nature and duration
of the sentence as determined by the transferring State.
2. If, however, the sentence is by its nature or duration or both
incompatible with the law of the receiving State, or its law so requires,
that State may, by court or administrative order, adapt the sentence to
a punishment or measure prescribed by its own law. As to its nature
and duration the punishment or measure shall, as far as possible,
correspond with that imposed by the judgment of the transferring
State. It shall however not aggravate, by its nature or duration, the
sentence imposed by the transferring State.”
4. 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
5|Page
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.
5. 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
6|Page
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.
6. Ms. Madhvi Divan, learned 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 to
the sentence of imprisonment provided for a similar offence, had the
offence been committed in India. According to the proviso to Section
7|Page
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 sentenced
imposed in the contracting State. The ASG relied upon Article 8 of
the agreement between the Government of India and Government
of Mauritius to argue that India is bound by the legal nature and
duration of the sentence as determined by the transferring State.
She asserted that the expression ‘incompatible’ appearing in
Section 13 (6) of the 2003 Act was misconstrued by the High Court.
According to the learned Additional Solicitor General, discretion
vested in the Central Government under Section 13 (6) of the 2003
Act required to be exercised only when the sentence of
imprisonment passed against the prisoner by the contracting State
is incompatible with the Indian law as a whole. The exercise of
discretion of the Central Government under Section 13 (6) of the
2003 Act depends on variety of factors, keeping in mind the comity
of nations and strategic partnership. Mechanical reduction of
sentence would be detrimental to the interests of the other prisoners
awaiting repatriation from Mauritius to India. She further asserted
that the Respondent cannot seek reduction of sentence after
submitting an undertaking that he will abide by the sentence
8|Page
adaptability order issued at the time of his repatriation back to India.
The contention of the Appellant is that the decision to not reduce the
sentence of the Respondent is prompted by foreign policy which
should not be lightly interfered with by judicial review. The learned
Additional Solicitor General further referred to the strong bilateral
ties between India and Mauritius which may be adversely affected
by interference with the sentence imposed by the Supreme Court of
Mauritius in a case of drug trafficking which is a pressing issue in
Mauritius presently.
7. Mr. A.M. Dar, learned 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 Respondent is being discriminated as
the Government of India has reduced the sentence in respect of
other persons who have been repatriated to India. 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 this Court. He
further stated that there is obvious incompatibility between the
sentence imposed by the Supreme Court of Mauritius with the
9|Page
sentence that may be imposed for a similar offence under Section 21
(b) of the NDPS Act. The quantity of heroin which was found to be
in possession of the Respondent is an intermediate quantity under
the NDPS Act and the maximum sentence that can be imposed on the
convict can be only 10 years. As the Respondent has already
undergone 10 years, the Government accepted to take into account
the sentence undergone by him in Mauritius.
8. 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 10.08.2015 under the
Repatriation Act, 2003. As per the guidelines, in case of adaptation
of sentence of a prisoner convicted on the charge of drug trafficking,
a reference has to be made to the Narcotics Control Bureau (NCB) to
assess the proposed repatriation and the probabilities of the
prisoner indulging in similar activity on his release. Before granting
permission for repatriation, the prisoner has to be informed about
the total quantum of sentence which he will have to undergo in India
and repatriation would be allowed only if the prisoner gives his
10 | P a g e
consent in writing. There is no dispute that the Respondent has
given an undertaking to this effect on 19.10.2015.
9. The question that arises for our consideration is related to the
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.
10. The preamble of the 2003 Act initially reads as follows: –
“An Act to provide for the transfer of certain prisoners from India to
country or place outside India and reception in India of certain
prisoners from country or place outside India.”
11. 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
11 | P a g e
contracting 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.
12. Article 8 (2) of the agreement provides that if the sentence
imposed by the transferring State (Mauritius) is incompatible with
the law in India by its nature or duration or both, the sentence may
be adapted by the receiving State, namely India in this case. The
adaptation shall be with regard to the duration or nature of
punishment as prescribed by Indian law. However, Article 8 (2)
further makes it clear that even when the sentence is adapted by the
receiving State (India), the nature and duration of the punishment
shall, as far as possible, correspond with that imposed by the
transferring State (Mauritius). The provision for adaptation is also
found in Section 13(6) of the 2003 Act. Section 13 (6) empowers the
Government of India to adapt the sentence compatible to the
sentence of imprisonment provided for a similar offence had that
offence been committed in India, provided the sentence of
12 | P a g e
imprisonment passed in the contracting State (Mauritius) is
incompatible with Indian law.
13. It is also relevant to examine the scope of Section 12 (2) of the
2003 Act. The Section enables the Government to issue a warrant to
detain the prisoner in accordance with the provisions contained in
Section 13 (4) if the Government decides to accept the transfer of a
prisoner under Section 12(1) of the Act. Section 13 (4) (c) of the Act
makes it clear that a warrant shall state the nature and duration of
imprisonment of the prisoner in accordance with the terms and
conditions as referred to in Section 12 (1) and the imprisonment of
such prisoner in India shall be in such manner as may be contained
in the warrant. It is relevant to note that the warrant issued in this
case on 24.10.2016 refers to the sentence of the Respondent as 26
years.
14. 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.
13 | P a g e
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
14 | P a g e
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.
15. It is, therefore, clear 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.
16. 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
the Central Government to adapt the sentence imposed by the
15 | P a g e
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.
17. 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.
18. 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
16 | P a g e
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 as discussed above. As we have upheld the order of the
Central Government, for the reasons given above, it is not necessary
to refer to the other submissions made by the learned Additional
Solicitor General.
19. For the aforementioned reasons, the Appeal is allowed.
……………………………….J.
[ L. NAGESWARA RAO ]
……………………………….J.
[ B. R. GAVAI ]
New Delhi,
January 11, 2022.
17 | P a g e
Comments