UNION OF INDIA Vs. SHAIKH ISTIYAQ AHMED

JUDGEMENT

(1.) Leave granted. The Respondent was convicted by the Supreme Court of Mauritius under Section 30(1)(f)(II), 47(2) and 5(2) of the Dangerous Drugs Act for possession of 152.8 grams of heroin and was sentenced to imprisonment for 26 years. He was transferred to India as per the Repatriation of Prisoners Act, 2003 (hereinafter, 'the 2003 Act') on 04.03.2016. He preferred a representation under Section 13 (6) of the 2003 Act and requested for scaling down the sentence to 10 years as per Section 21 (b) of the Narcotics Drugs and Psychotropic Substances Act, 1994 (hereinafter, 'NDPS Act'). 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 03.12.2018, the Ministry of Home Affairs, Government of India informed the Respondent that the period spent by him in remand will be deducted from the sentence of 26 years. However, another order was passed on the same day, rejecting his request for reduction of sentence to 10 years from 26 years. The said order rejecting the representation for reduction in sentence was challenged by the Respondent in a Writ Petition before the High Court of Bombay which was allowed by the judgment dated 02.05.2019. Aggrieved thereby, this Appeal is preferred.

(2.) Detention of foreign prisoners was a matter of concern for the Government of India as well as foreign Governments for which the Repatriation of Prisoners Act, 2003 was enacted in conjunction with bilateral treaties enabling the Central Government to transfer foreign convicted persons to their country and vice versa. One of the objectives of the 2003 Act was the transfer of foreign convicted nationals to their respective nations in order to take care of the human aspect in as much as the said convicts would be near their families and have better chances of social rehabilitation. One of the salient features of the legislation is that the enforcement of the sentence shall be governed by the law of the receiving State. However, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. Section 12 and 13 of the 2003 Act, which are relevant for the adjudication of this case, are as follows:

(3.) 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, which are as follows: