UNION OF INDIA & ANR. versus SHAIKH ISTIYAQ AHMED & ORS.

Citation: [2022] 2 S.C.R. 679 · Decided: 11-01-2022 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

Judgment (excerpt)

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UNION OF INDIA & ANR.
v.
SHAIKH ISTIYAQ AHMED & ORS.
(Criminal Appeal No. 71 of 2022)
JANUARY 11, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
Repatriation of Prisoners Act, 2003 – ss.12, 13(6) –
Adaptation of sentence, when permissible – Dangerous Drugs Act
– ss.30(1)(f)(II), 47(2), 5(2) – Narcotics Drugs and Psychotropic
Substances Act, 1994 – s.21(b) – International Convention/Treaties
– Transfer of Sentenced Prisoners’ Agreement between India and
Mauritius – Article 8 – Continued enforcement of sentence –
Respondent convicted by Supreme Court of Mauritius under
Dangerous Drugs Act, sentenced to imprisonment for 26 years –
Transferred to India under the 2003 Act – His representation u/
s.13(6), 2003 Act to scale down the sentence to 10 years as per
s.21(b), NDPS Act was rejected by Central Govt. – Challenged,
writ petition allowed by High Court – On appeal, held: 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 – 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 Govt. to adapt the sentence
imposed by the Supreme Court of Mauritius to be compatible to a
sentence of imprisonment provided for the similar offence – Further,
reference to Indian law in s.13(6) is not restricted to a particular
section in NDPS Act – Even in cases where adaptation is considered
by Central Govt., 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 the present case, the sentence
imposed by the Supreme Court of Mauritius is binding on India –
Order of the Central Govt. upheld.
Repatriation of Prisoners Act, 2003 – Object of – Discussed.
[2022] 2 S.C.R. 679
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SUPREME COURT REPORTS
[2022] 2 S.C.R.
Repatriation of Prisoners Act, 2003 – ss.12, 13(6) –
Interpretation of – Held: s.12 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 contracting State – s.13(6) empowers
the Govt. 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 imprisonment
passed in the contracting State (Mauritius) is incompatible with
Indian law.
Repatriation of Prisoners Act, 2003 – s.12(2) – Scope of –
Discussed.
Repatriation of Prisoners Act, 2003 – s.12 r/w s.13 –
Principles laid down.
Allowing the appeal, the Court
HELD: 1.1 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. The object
of the Repatriation of Prisoners Act, 2003 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 contracting State. The decision to
be taken by the Government on the representation preferred for
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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

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