Duration of sentence of Indian convicted abroad and repatriated will be governed by agreement between foreign country and India: Supreme Court

The Supreme Court on Tuesday held that when an Indian prisoner convicted and sentenced in a foreign country, is transferred to India under the Repatriation of Prisoners Act, 2003 based on an agreement between that foreign country and India, the duration of sentence imposed on such person shall be subject to such terms and conditions agreed to between India and that country [Union of India & Anr. v. Shaikh Istiyaq Ahmed & Ors.]. .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, a Bench of Justices L Nageswara Rao and BR Gavai held.“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,” the judgment said..The Court was hearing a plea by an Indian national, Shaikh Istiyaq Ahmed who 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 in 2016 as per the Repatriation of Prisoners Act, 2003 and also based on a 2005 agreement entered into between India and Mauritius on transfer of prisoners.After he was repatriated to India, he preferred a representation under Section 13 (6) of the 2003 Act requesting 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 may be taken into account for revision of his release date.By an order dated December 3, 2018, the Ministry of Home Affairs 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 Ahmed by way of a writ petition before the Bombay High Court.The High Court allowed the same leading to the present appeal by the Central government before the top court..Additional Solicitor General Madhavi Divan appearing for the Central government, 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.At the same time she also said that 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..Senior Counsel AM Dar 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 was being discriminated as the government has, in the past, reduced the sentence in respect of other persons who have been repatriated to India. He also referred to a judgment of the Bombay High Court by which the sentence of the petitioner therein was reduced to 20 years from 30 years.He further stated that there is obvious incompatibility between the sentence imposed by the Supreme Court of Mauritius with the 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, it was pointed out..The Court after examining Sections 12 and 13 of the 2003 Act and Article 8 of the agreement between India and Mauritius, agreed with the government’s argument.It noted that the as per Section 12, the duration of imprisonment will be governed by the agreement between the two countries.As per Article 8 of the agreement, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State.Hence, the Court concluded that the sentence imposed by Supreme Court of Mauritius will be binding on India..It also said that the following emerge from the 2003 Act read in consonance with Article 8 of the agreement:- 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;- 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;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;- 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;- The imprisonment of the transferred prisoner shall be in accordance with the warrant;- 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;- 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..It, therefore, allowed the appeal and set aside the judgment of the Bombay High Court..[Read Judgment]