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The Union of India & Anr. vs Shaikh Istiyaq Ahmed & Ors.

Criminal Appeal · 2022 INSC 38Decided 11 Jan 2022
Criminal Appeal No. 71 of 2022
L. Nageswara Rao · B.R. Gavai

Background

The respondent was convicted by the Supreme Court of Mauritius for possession of 152.8 grams of heroin and sentenced to 26 years' imprisonment. He was repatriated (transferred) to serve his sentence in India under the Repatriation of Prisoners Act, 2003 and an India-Mauritius prisoner-transfer treaty, after giving an undertaking to abide by the transfer terms. He then asked the Indian government to cut his sentence down to 10 years: the maximum that a similar quantity of heroin would attract under Section 21(b) of India's Narcotics Drugs and Psychotropic Substances Act (NDPS Act). The government refused, but the Bombay High Court ruled in his favour, and the Union of India appealed to the Supreme Court.

Decision Breakdown

The Supreme Court held that under Section 13(6) of the 2003 Act and Article 8 of the India-Mauritius treaty, India as the "receiving state" is ordinarily bound by the nature and duration of the sentence fixed by the "transferring state" (Mauritius): the government's power to "adapt" (reduce) a transferred prisoner's sentence to match Indian law can be used only in the narrow situation where the foreign sentence is fundamentally incompatible with core Indian legal principles, not merely because it is longer than what an Indian court might have imposed for a similar offence. Since the Mauritius sentence was not incompatible with Indian law in that deeper sense, the Central Government was entitled to reject the respondent's request to cut his sentence from 26 to 10 years, and the High Court had erred by focusing only on the length-mismatch with the NDPS Act's own penalty. The Supreme Court accordingly set aside the High Court's judgment and upheld the government's refusal, allowing the government's appeal.

Lesson Learnt

A prisoner transferred to India from another country to serve out a foreign sentence cannot expect that sentence to be automatically cut down to match what an Indian court would have given for a similar crime: the receiving country is generally bound by the length and nature of the sentence as fixed abroad, and can only "adapt" it in exceptional situations of genuine incompatibility with fundamental Indian law.

Official source (sci.gov.in)View Judgment (PDF)

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