By PTI
NEW DELHI: The Supreme Court on Tuesday refused to reduce the 26-year sentence awarded to an Indian citizen by the Supreme Court of Mauritius for being in possession of 152.8 grams of heroin.
Shaikh Istiyaq Ahmed, who was later repatriated to India under the Repatriation of Prisoners Act, 2003 and bilateral treaty with Mauritius, had sought scaling down of his prison term to 10 years under the Narcotics Drugs and Psychotropic Substances Act of 1994.
A bench of justices L Nageswara Rao and B R Gavai which allowed the appeal of the Centre against the Bombay High Court order directing to reduce the sentence to 10 years said, “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.”
The bench said that the high court allowed the 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 convict, 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,” it said.
The bench, after perusing the provisions of the 2003 Act said that the object of the law 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,” it said.
The top court said that 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,” it said.
It added that 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 top court said.
Ahmed was transferred to India on March 4, 2016 and on reaching India he made a representation to the Ministry of Home Affairs (MHA) to scale down his sentence to 10 years from 26 years.
In the same representation, he also requested that the sentence that he has already undergone in Mauritius may be taken into account for revision of his release date.
By an order dated December 3, 2018, the MHA informed him that the period spent by him in remand will be deducted from the sentence of 26 years and in another order passed on the same day, the government had rejected his request for reduction of sentence to 10 years from 26 years.
This rejection order was challenged before the Bombay High Court, which on May 2, 2019, allowed his plea and directed for reduction of sentence.
