The case delves into the intricate legal analysis surrounding the adaptation of sentences under the Repatriation of Prisoners Act. Central to the debate is whether foreign policy considerations should impact the exercise of discretion by the Central Government under Section 13(6). This analysis sheds light on the balance between legal obligations and diplomatic relations, especially in the context of repatriating convicted individuals. Let’s explore the nuances of judicial review in the realm of sentence adaptation for foreign prisoners.
Facts
- The Repatriation of Prisoners Act, 2003 was enacted to address the issue of detention of foreign prisoners.
- The Act was supplemented by bilateral treaties to facilitate the transfer of foreign convicted persons between countries.
- One of the key objectives of the Act was to transfer foreign convicted nationals to their home countries for better social rehabilitation and proximity to their families.
- The Act also allowed for the consideration of sentences already undergone in the convict’s home country for the revision of release dates.
- The Respondent was convicted in Mauritius for possession of heroin and sentenced to 26 years imprisonment.
- He filed a representation to the Ministry of Home Affairs in India for reducing his sentence to 10 years as per the NDPS Act.
- His request for reduction in sentence was rejected in Mauritius, which he challenged in the High Court of Bombay.
- The High Court of Bombay allowed his petition, stating that if the offence was committed in India, the maximum sentence would have been 10 years.
- The rejection of the request for reduction was found to be unjustifiable and in violation of the Repatriation of Prisoners Act, 2003.
- The High Court declared that the Respondent was entitled to the benefit of sentence adaptability under the 2003 Act.
- The Supreme Court of Mauritius considered mitigating circumstances but still sentenced the Respondent to 26 years.
- An undertaking was given by the Respondent during repatriation that he would abide by the terms of the sentence adaptability agreement between India and Mauritius.
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Arguments
- The ASG argued that the receiving State is bound by the legal nature and duration of the sentence determined by the transferring State.
- The Central Government has the authority to accept the transfer of a prisoner under Section 12 of the 2003 Act with agreed upon terms between contracting States.
- Section 13(6) allows for adaptation of the sentence if it is incompatible with Indian law in terms of nature, duration, or both.
- The adaptation of the sentence should correspond as closely as possible to the original sentence imposed by the contracting State and should not aggravate the punishment.
- The ASG emphasized that the discretion of the Central Government under Section 13(6) should only be exercised when the sentence from the contracting State is incompatible with Indian law as a whole.
- Mechanical reduction of sentence could negatively impact other prisoners awaiting repatriation and the exercise of discretion under Section 13(6) considers various factors including the comity of nations and strategic partnership.
- The Appellant contended that the decision to not reduce the sentence of the Respondent is influenced by foreign policy and should not be easily interfered with through judicial review.
- Respondent claimed discrimination as other repatriated individuals had their sentences reduced by the Government of India.
- Refers to a High Court of Bombay judgment where a petitioner had their sentence reduced from 30 years to 20 years.
- Mention of a pending Special Leave Petition related to the mentioned judgment.
- Submission of a document ‘Commonwealth Human Rights Initiative’ regarding repatriation of Indian Nationals from Foreign Prisons.
- Discussion about potential adverse effects on bilateral ties between India and Mauritius if the sentence from Supreme Court of Mauritius is interfered with.
- Respondent’s counsel justified the High Court judgment and mentioned lack of reasons given by the Government for rejecting the representation for sentence reduction.
- Claim of incompatibility between the sentences from Supreme Court of Mauritius and the possible sentence under Section 21 (b) of the NDPS Act for a similar offense.
- Stating that the quantity of heroin in possession by the Respondent falls under an intermediate category under the NDPS Act, with a maximum possible sentence of 10 years.
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Analysis
- The Central Government may accept the transfer of a prisoner from a contracting State under specific terms and conditions agreed upon between India and that State.
- The receiving State must abide by the legal nature and duration of the sentence determined by the transferring State.
- The receiving State may adapt the sentence if it is incompatible with its law, ensuring it corresponds as closely as possible to the original sentence.
- The Government of India has the authority to issue a warrant to detain the transferred prisoner in accordance with Section 13 of the 2003 Act.
- The warrant must specify the nature and duration of imprisonment as per the terms and conditions agreed upon in the transfer agreement.
- Imprisonment under the warrant is considered equivalent to a court-imposed sentence in India.
- In cases where the sentence from the transferring State is incompatible with Indian law, the Central Government can adapt the punishment to align with a similar offense in India, ensuring it corresponds with the original sentence.
- An agreement issued under Section 12 specifies where the transferred prisoner will be lodged and the officer responsible for holding them in custody.
- Adaptation of the sentence is possible only when the Central Government believes the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law.
- The reference to Indian law in Section 13(6) is not limited to a specific section in the NDPS Act.
- Adaptation aims to ensure compatibility of the sentence with Indian law in terms of nature and duration.
- In cases of adaptation, the Central Government is not bound to mirror the exact nature and duration of imprisonment provided for in a similar offense in India.
- The Central Government must strive to make the adapted sentence align with Indian law as closely as possible to the original sentence imposed by the Supreme Court of Mauritius.
- The key features of the Repatriation of Prisoners Act, 2003 include enforcement of the transferred sentence as per the receiving state’s law, while respecting the legal nature and duration decided by the transferring state.
- The decision on the transfer of a prisoner from a contracting state to India is subject to the agreement between the two countries.
- If the transferring state’s sentence is incompatible with Indian law, India may adapt it as per the prescribed punishment in Indian law.
- The High Court’s decision should consider the intent of the 2003 Act, Sections 12 and 13, and the transfer agreement between India and Mauritius.
- The sentence imposed by the Supreme Court of Mauritius holds binding authority in India.
- The High Court may allow a Writ Petition based on the incompatibility between the Mauritian sentence and Indian law regarding nature, duration, or both.
- Adaptation of the sentence can only be considered when the imprisonment term is incompatible with Indian law in terms of nature, duration, or both.
- Guidelines require consultation with the NCB for repatriation of drug trafficking convicts, informing the prisoner of the Indian sentence, and obtaining written consent for repatriation.
- Adapted sentences must align as closely as possible with the original sentence from the contracting state.
- The Respondent has provided written consent for repatriation as per the guidelines.
- The Government has the authority to adapt the sentence to match the punishment for a similar offense in India.
- The Central Government rejected the adaptation of sentence from 26 years to 10 years as per Section 21 (b) of the NDPS Act.
- The rejection was based on the grounds that reducing the sentence by 16 years would not align with Section 13 (6) of the 2003 Act and Article 8 of the Agreement.
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Decision
- The Central Government rejected the request for scaling down the sentence in accordance with the provisions of the 2003 Act and the agreement between India and Mauritius.
- The reasons recorded by the Central Government align with the aforementioned provisions and agreement.
- The order of the Central Government was upheld based on the reasons provided earlier in the judgment.
- No need to discuss other submissions made by the learned Additional Solicitor General as the order of the Central Government was upheld.
Case Title: THE UNION OF INDIA Vs. SHAIKH ISTIYAQ AHMED (2022 INSC 38)
Case Number: Crl.A. No.-000071-000071 / 2022
