The division bench of Justice Nageshwar Rao and Justice B.R. Gavai of the Hon’ble Supreme Court was hearing a matter related to an Indian who was convicted by the Supreme Court of Mauritius.

Issues Before the Hon’ble Supreme Court:

The Hon’ble Supreme Court was hearing an appeal filed by the Union of India against an Indian national, Shaikh Istiyaq Ahmed who got a jail sentence of 26 years by the Supreme Court of Mauritius for possessing 152.8 grams of heroin under Sections 30(1)(f)(II), 47(2), and 5(2) of the Dangerous Drugs Act. He was sent to India in 2016 under the Repatriation of Prisoners Act of 2003, as well as a 2005 prisoner transfer agreement between India and Mauritius.

Background of The Writ Petition Before Bombay High Court:

Following his repatriation to India, he filed a petition under Section 13 (6) of the 2003 Act, requesting that his sentence be reduced to ten years under Section 21 (b) of the Narcotics, Drugs, and Psychotropic Substances Act, 1994. He also requested that the sentence he had previously served in Mauritius be taken into consideration when revising his release date in the same letter. The defendant was told by the Ministry of Home Affairs on December 3, 2018, that the time he spent in custody will be reduced from his 26-years sentence. On the same day, however, another order was issued, rejecting his appeal for a reduction in his sentence from 26 to 10 years. The petitioner, Shaikh Ahmed filed a writ suit in the Bombay High Court challenging the aforementioned judgment rejecting the representation for a reduced sentence. The High Court allowed the Writ Petition that resulted in the filing of the Central Government’s current appeal to the Supreme Court.

The Contentions of Union Of India:

Additional Solicitor General of India appearing for Union of India, relied her argument on the Repatriation of Prisoners Act’s statement of objects and reasons, arguing that the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State, even though the enforcement of the sentence is governed by the receiving State’s law. Ms. Madhavi Divan further stated that the Central Government may allow the prisoner’s transfer under Section 12 of the 2003 Act if the terms and conditions agreed upon between India and another contracting State are met. The Central Government has discretion under Section 13 (6) of the 2003 Act to adapt the jail sentence imposed against the prisoner in the contracting State if it is incompatible with Indian law in terms of character, duration, or both.

The Contentions Raised by The Respondent:

Senior Advocate AM Dar, standing on behalf of the respondent, defended the High Court’s decision, claiming that the government had presented no reasons for denying the respondent’s request for a sentence reduction. He said that the respondent was being treated unfairly because the government had previously lowered the sentence of other people who had been deported to India. He further pointed to a Bombay High Court decision in which the petitioner’s sentence was reduced from 30 years to 20 years.

He further noted that the sentence given by the Supreme Court of Mauritius is incompatible with the punishment that could be imposed for a similar offence under Section 21 (b) of the NDPS Act. According to the NDPS Act, the amount of heroin detected in the possession of the Respondent is an intermediate quantity, and the maximum penalty that can be imposed on the convict is only ten years.

The Conclusion of The Court:

The Hon’ble Supreme Court concluded that:

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.

As a result, the Hon’ble Supreme Court came to the conclusion that the Mauritius Supreme Court’s sentence would be binding on India and allowed the appeal after setting aside the Bombay High Court’s decision.

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