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. 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 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. 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 imprisonment passed in the contracting State (Mauritius) is incompatible with Indian law. Section 12 (2) of the 2003 Act 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. [Paras 3,11-13][686-D; 690-A-H; 691-A]
1.2 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. 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 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. 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 Mauritius 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. 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 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. [Paras 15-18][692-B-H; 693-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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