A two-judge bench of Justice L. Nageshwara Rao and Justice B.R. Gavai has upheld denial by central government of reduction of the period of imprisonment to the Respondent (Indian citizen) who was convicted of drug trafficking by the Supreme Court of Mauritius on the sole ground that punishment for a similar offence in India is lower than the one imposed by the Supreme Court of Mauritius.

In this case, the Respondent was convicted by the Supreme Court of Mauritius for possession of heroin and was sentenced to imprisonment for a period of 26 years. He was then transferred to India under the Repatriation of Prisoners Act, 2003 wherein his request that the sentence underwent in Mauritius be considered and the release date be scheduled accordingly, was accepted by the Appellant. Moreover, the Respondent requested the scaling down of the sentence of imprisonment to 10 years from the 26 years which was granted, considering that the Narcotic Drugs and Psychotropic Substances Act, 1994 provided 10 years to be the maximum punishment which was prescribed. This request was denied by the Appellant and hence challenged before the Bombay High Court. The High Court observed that under similar circumstances, if the offence was committed in India, the maximum sentence would be 10 years and hence, citing incompatibility, allowed the petition. This judgment was challenged before the Apex Court by the Appellant.

Additional Solicitor General, Ms. Madhvi Divan appeared for the Appellant - Union of India while Mr. A.M. Dhar appeared for the Respondent before the Apex Court.

The primary question for consideration was -

  • Can there be a reduction of sentence of imprisonment for the repatriated convict considering that the similar sentence in India is lower?

It was contended by the Appellant that as per the objects and reasons of the Repatriation of Prisoners Act, the receiving State was bound by the legal nature and duration of the sentence as adjudicated by the transferring State. Moreover, they relied on Article 8 of the Agreement signed between the Government of India and the Government of Mauritius to argue that India was bound by the duration imposed by Mauritius. Additionally, it was argued that the sentence could be adapted as per Section 13(6) of the Repatriation of Prisoners Act, 2003, only when the sentence was incompatible with the Indian Law as a whole. Lastly, the reduction of the sentence was opposed citing foreign policy which ought not to have interfered with the Court considering the adverse effect it might cause on the strong bilateral ties between India and Mauritius.

The Respondent, on the other hand, contended that no cogent reasons were provided by the Appellant while rejecting the representation for the reduction of the sentence. Also, the counsel stated that the Government had reduced the sentences of several repatriated convicts. Thus, it was argued that the maximum sentence of punishment of 10 years ought to be granted and the sentence of 26 years be reduced accordingly.

On a combined reading of Section 12, Section 13 of the Repatriation of Prisoners Act, 2003 and Article 8 of the Agreement, the Court held that the sentence imposed by the transferring State i.e. Mauritius will be binding on the receiving State i.e. India. Moreover, the duration of imprisonment would be in accordance with the agreement signed between both countries.

The Court held that after the acceptance for the request of transfer, a warrant had to be issued as per Section 13 of the 2003 Act and had to provide for the nature and duration of the imprisonment which was agreed between the two contracting countries.

"It is, therefore, clear that 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," the Bench opined.

Additionally, the Court held that the Government of India could adapt the sentence to that provided for a similar sentence had that offence be committed in India where the Government is convinced that the sentence by the Foreign Court is incompatible and contrary to the fundamental laws of India.

The Bench held, "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 India 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."

Thus, the Supreme Court held that the High Court had failed to examine the scope, objects, and reasons of the 2003 Act, Section 12, Section 13 of the 2003 Act, and Article 8 of the Agreement. Since the reasons recorded by the Central Government were in accordance with the said provisions, the appeal was allowed.

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