UNION OF INDIA & ANR. versus SHAIKH ISTIYAQ AHMED & ORS. on 11 January 2022

UNION OF INDIA & ANR.

v.

SHAIKH ISTIYAQ AHMED & ORS.

(Criminal Appeal No. 71 of 2022)

JANUARY 11, 2022

[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]

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 PsychotropicSubstances Act, 1994 – s.21(b) – International Convention/Treaties– Transfer of Sentenced Prisoners’ Agreement between India andMauritius – Article 8 – Continued enforcement of sentence –Respondent convicted by Supreme Court of Mauritius underDangerous 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 pers.21(b), NDPS Act was rejected by Central Govt. – Challenged,writ petition allowed by High Court – On appeal, held: Question ofadaptation of the sentence can only be when the Central Governmentis convinced that the sentence imposed by the Supreme Court ofMauritius is incompatible with Indian law – Incompatibility withIndian law is with reference to the enforcement of the sentenceimposed by the Supreme Court of Mauritius being contrary tofundamental laws of India – It is only in case of such an exceptionalsituation, that it is open to the Central Govt. to adapt the sentenceimposed by the Supreme Court of Mauritius to be compatible to asentence of imprisonment provided for the similar offence – Further,reference to Indian law in s.13(6) is not restricted to a particularsection in NDPS Act – Even in cases where adaptation is consideredby Central Govt., it does not necessarily have to adapt the sentenceto be exactly in the nature and duration of imprisonment providedfor in the similar offence in India – In the present case, the sentenceimposed by the Supreme Court of Mauritius is binding on India –Order of the Central Govt. upheld.

Repatriation of Prisoners Act, 2003 – Object of – Discussed.

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ARepatriation of Prisoners Act, 2003 – ss.12, 13(6) –Interpretation of – Held: s.12 makes it clear that the transfer of aprisoner who is a citizen of India from a contracting State whereinhe is undergoing sentence of imprisonment may be accepted by theCentral Government, subject to certain conditions that may beagreed between India and the contracting State – s.13(6) empowersBthe Govt. of India to adapt the sentence compatible to the sentenceof imprisonment provided for a similar offence had that offencebeen committed in India, provided the sentence of imprisonmentpassed in the contracting State (Mauritius) is incompatible withIndian law.

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CRepatriation of Prisoners Act, 2003 – s.12(2) – Scope of –Discussed.

Repatriation of Prisoners Act, 2003 – s.12 r/w s.13 –Principles laid down.

DAllowing the appeal, the Court

HELD: 1.1 On 24.10.2005, an agreement was entered intobetween the Government of India and Government of Mauritiuson the Transfer of Prisoners. Article 8 of this Agreement refersto conditions for continued enforcement of sentence. The objectEof the Repatriation of Prisoners Act, 2003 is to provide anopportunity to the convicts to be repatriated to their country sothat they can be closer to their families and have better chancesof rehabilitation. One of the salient features of the 2003 Act isalso that the enforcement of sentence of the repatriated prisonerFhas to be governed by the law of the receiving State, however indoing so, the receiving State is bound by the legal nature andduration of the sentence as determined by the transferring State.While operating in accordance with this object and feature, Section12 of the 2003 Act makes it clear that the transfer of a prisonerwho is a citizen of India from a contracting State wherein he isGundergoing sentence of imprisonment may be accepted by theCentral Government, subject to certain conditions that may beagreed between India and the contracting State. The decision tobe taken by the Government on the representation preferred for

transfer, therefore, shall be subject to the agreement enteredinto between Republic of India and Republic of Mauritiusregarding the transfer of prisoners. Article 8 of the said agreementcategorically states that while continuing the enforcement of thesentence, India shall be bound by the legal nature and durationof the sentence as determined by transferring State. Article 8 (2)of the agreement provides that if the sentence imposed by thetransferring State (Mauritius) is incompatible with the law in Indiaby its nature or duration or both, the sentence may be adapted bythe receiving State, namely India in this case. The adaptationshall be with regard to the duration or nature of punishment asprescribed by Indian law. However, Article 8 (2) further makes itclear that even when the sentence is adapted by the receivingState (India), the nature and duration of the punishment shall, asfar as possible, correspond with that imposed by the transferringState (Mauritius). The provision for adaptation is also found inSection 13(6) of the 2003 Act. Section 13 (6) empowers theGovernment of India to adapt the sentence compatible to thesentence of imprisonment provided for a similar offence had thatoffence been committed in India, provided the sentence ofimprisonment passed in the contracting State (Mauritius) isincompatible with Indian law. Section 12 (2) of the 2003 Actenables the Government to issue a warrant to detain the prisonerin accordance with the provisions contained in Section 13 (4) ifthe Government decides to accept the transfer of a prisoner underSection 12(1) of the Act. Section 13 (4) (c) of the Act makes itclear that a warrant shall state the nature and duration ofimprisonment of the prisoner in accordance with the terms andconditions as referred to in Section 12 (1) and the imprisonmentof such prisoner in India shall be in such manner as may becontained in the warrant. [Paras 3,11-13][686-D; 690-A-H; 691-A]

1.2 The sentence imposed by the Supreme Court ofMauritius in this case is binding on India. A warrant of detentionwas issued in which it was specified that the Respondent has toundergo a sentence of 26 years. As per Section 13 (4), thesentence shall be 26 years. The question of adaptation of the ABCDEF

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682SUPREME COURT REPORTS

Asentence can only be when the Central Government is convincedthat the sentence imposed by the Supreme Court of Mauritius isincompatible with Indian law. Reference to Indian law in Section13 (6) is not restricted to a particular Section in NDPS Act.Incompatibility with Indian law is with reference to theenforcement of the sentence imposed by the Supreme Court ofBMauritius being contrary to fundamental laws of India. It is onlyin case of such an exceptional situation, that it is open the CentralGovernment to adapt the sentence imposed by the Supreme Courtof Mauritius to be compatible to a sentence of imprisonmentprovided for the similar offence. Even in cases where adaptationCis being considered by the Central Government, it does notnecessarily have to adapt the sentence to be exactly in the natureand duration of imprisonment provided for in the similar offencein India. In this circumstance as well, the Central Governmenthas to make sure that the sentence is made compatible with Indianlaw corresponding to the nature and duration of the sentenceDimposed by the Supreme Court of Mauritius, as far as possible.The High Court allowed the Writ Petition only on the groundthat there is incompatibility between the sentence imposed onthe Respondent by the Supreme Court of Mauritius and asentence that would have been imposed on the Respondent if aEsimilar offence would have been committed in India. In doing so,the High Court failed to examine the statement of object andreasons for the 2003 Act, the scope of Sections 12 and 13 of the2003 Act and the agreement for transfer of prisoners as enteredinto between Republic of India and Republic of Mauritius. Theadaptation of sentence from 26 years to 10 years as per SectionF21 (b) of the NDPS Act was rejected by the Central Governmenton the ground that it would amount to reduction of sentence by16 years which would not be in consonance with Section 13 (6) ofthe 2003 Act and Article 8 of the Agreement. The reasonsrecorded by the Central Government to reject the request forGscaling down the sentence are in accordance with the provisionsof the 2003 Act and the agreement entered into between Indiaand Mauritius. [Paras 15-18][692-B-H; 693-A-B]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.71 of 2022.

From the Judgment and Order dated 02.05.2019 of the High Courtof Judicature at Bombay in Criminal Writ Petition No.3975 of 2018.

Ms. Madhvi Divan, ASG, Ms. Suhashini Sen, Satya Lipsu Ray,Ms. Shradha Deshmukh, Ms. Nidhi Khanna, Arvind Kumar Sharma,Advs. for the Appellants.

A. M. Dar, Sr. Adv., Danish Majid Dar, Bhat Shafi, MuzaffarYasinshah Patel, Ms. Sameera A. R. Shaikh, Ms. Shraddha SumanChandel, Abhay Anand Jena, Rahul Chitnis, Sachin Patil, Aaditya A.Pande, Geo Joseph, Advs. for the Respondents.

The Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

Leave granted.

1. The Respondent was convicted by the Supreme Court ofMauritius under Section 30(1)(f)(II), 47(2) and 5(2) of the DangerousDrugs Act for possession of 152.8 grams of heroin and was sentencedto imprisonment for 26 years. He was transferred to India as per theRepatriation of Prisoners Act, 2003 (hereinafter, ‘the 2003 Act’) on04.03.2016. He preferred a representation under Section 13 (6) of the2003 Act and requested for scaling down the sentence to 10 years asper Section 21 (b) of the Narcotics Drugs and Psychotropic SubstancesAct, 1994 (hereinafter, ‘NDPS Act’). In the same representation, healso requested that the sentence that he has already undergone inMauritius may be taken into account for revision of his release date. Byan order dated 03.12.2018, the Ministry of Home Affairs, Governmentof India informed the Respondent that the period spent by him in remandwill be deducted from the sentence of 26 years. However, another orderwas passed on the same day, rejecting his request for reduction ofsentence to 10 years from 26 years. The said order rejecting therepresentation for reduction in sentence was challenged by theRespondent in a Writ Petition before the High Court of Bombay whichwas allowed by the judgment dated 02.05.2019. Aggrieved thereby, thisAppeal is preferred.

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A2. Detention of foreign prisoners was a matter of concern for theGovernment of India as well as foreign Governments for which theRepatriation of Prisoners Act, 2003 was enacted in conjunction withbilateral treaties enabling the Central Government to transfer foreignconvicted persons to their country and vice versa. One of the objectivesof the 2003 Act was the transfer of foreign convicted nationals to theirBrespective nations in order to take care of the human aspect in as muchas the said convicts would be near their families and have better chancesof social rehabilitation. One of the salient features of the legislation isthat the enforcement of the sentence shall be governed by the law of thereceiving State. However, the receiving State shall be bound by the legalCnature and duration of the sentence as determined by the transferringState. Section 12 and 13 of the 2003 Act, which are relevant for theadjudication of this case, are as follows:

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“12. Transfer into India. —

(1) The Central Government may accept the transfer of aprisoner, who is a citizen of India, from a contracting Statewherein he is undergoing any sentence of imprisonmentsubject to such terms and conditions as may be agreed tobetween India and that State.

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(2) If the Central Government accepts the request for atransfer under sub section (1), then, notwithstanding anythingcontained in any other law for the time being in force, it mayissue a warrant to detain the prisoner in prison in accordancewith the provisions of section 13 in such form as may beprescribed.

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F13. Determination of prison and issue of warrant for receivingtransfer in India. —

(1) The Central Government shall, in consultation with a StateGovernment, determine the prison situated within thejurisdiction of such State Government where the prisoner withrespect to whom a warrant has been issued under sub section(2) of section 12, shall be lodged and the officer who shallreceive and hold him in custody.

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(2) The Central Government shall authorize any officer notbelow the rank of a Joint Secretary to that Government to H

Issues

issue a warrant under sub section (2) of section 12 and todirect the officer referred to in sub section (1) to receive andhold the prisoner, with respect to whom the warrant is issued,in custody.

(3) It shall be lawful for the officer referred to in sub section(1) to receive and hold in custody any prisoner delivered tohim under the direction made in the warrant issued undersub section (2) of section 12 and to convey such prisoner toany prison determined under sub section (1) for being dealtwith in accordance with the said warrant and if the prisonerescapes from such custody, the prisoner may be arrestedwithout warrant by any person who shall without undue delaydeliver such prisoner to the officer in charge of the nearestpolice station and the prisoner so arrested shall be liable forcommitting an offence under section 224 of the Indian PenalCode (45 of 1860) and shall also be liable to be dealt with inaccordance with the said warrant.

(4) A warrant under sub section (2) of section 12 shall providefor-—

(a) the bringing of the prisoner into India from a contractingState or a place outside India; (b) the taking of such prisoner in any part of India being aplace at which effect may be given to the provisions containedin the warrant;

(c) the nature and duration of imprisonment of the prisonerin accordance with the terms and conditions referred to insub section (1) of section 12 and the imprisonment of suchprisoner in India in such manner as may be contained in thewarrant; and (d) any other matter which may be prescribed.

(5) Notwithstanding anything contained in any other law forthe time being in force, the imprisonment of a prisoner incompliance with a warrant issued under sub section (2) ofsection 12 shall be deemed to be imprisonment under asentence of a court competent to pass such a sentence ofimprisonment in India.

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A(6) If the sentence of imprisonment passed against theprisoner in the contracting State is incompatible with the Indianlaw as to its nature, duration or both, the Central Governmentmay, by order, adapt the sentence of such punishment as tothe nature, duration or both, as the case may be, as iscompatible to the sentence of imprisonment provided for aBsimilar offence had that offence been committed in India:

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Provided that the sentence so adapted shall, as far as possible,correspond with the sentence imposed by the judgment of thecontracting State to the prisoner and such adapted sentenceshall not aggravate the punishment, by its nature, durationCor both relating to the sentence imposed in the contractingState.”

3. On 24.10.2005, an agreement was entered into between theGovernment of India and Government of Mauritius on the Transfer ofPrisoners. Article 8 of this Agreement refers to conditions for continuedDenforcement of sentence, which are as follows:

“ARTICLE 8

Continued enforcement of sentence

1. The receiving State shall be bound by the legal natureEand duration of the sentence as determined by thetransferring State.

2. If, however, the sentence is by its nature or duration orboth incompatible with the lawof the receiving State, orits law so requires, that State may, by court orFadministrative order, adapt the sentence to a punishmentor measure prescribed by its own law. As to its natureand duration the punishment or measure shall, as faras possible, correspond with that imposed by thejudgment of the transferring State. It shall however notaggravate, by its nature or duration, the sentenceGimposed by the transferring State.”

4. In so far as the conviction and sentence of the Respondent isconcerned, he travelled twice to Mauritius in the guise of doing businessin scrap metal. On the third occasion, he was found to be in possessionof 152.8 grams of heroin and was arrested. The Supreme Court of H

Mauritius convicted the Respondent after taking into account themitigating circumstances pleaded by the Respondent and sentenced himto imprisonment for 26 years. On 09.10.2015, an undertaking was givenby the Respondent that he will abide by the terms and conditions of thesentence adaptability order issued under the agreement/treaty on transferof sentenced prisoners entered into between India and Mauritius whilemaking a request for his repatriation to India. Subsequently, his repatriationto India was approved on 04.03.2016 and a warrant of transfer wasissued on 24.10.2016. After the transfer of the Respondent to India underthe 2003 Act, the Respondent preferred a representation to the Ministryof Home Affairs, Government of India for reduction of sentence from26 years to 10 years which is the maximum punishment prescribed underSection 21 (b) of the NDPS Act as applicable for the quantity of heroinseized from the Respondent. By an order dated 03.12.2018, hisrepresentation for reduction of sentence term was rejected.

5. While allowing the Writ Petition filed by the Respondent, theHigh Court was of the opinion that if the offence was committed inIndia, the Respondent would have been sentenced to for a maximumperiod of 10 years as provided in Section 21(b) of the NDPS Act. Thereason given by the authorities for not accepting the request made bythe Respondent for reduction of sentence by 10 years was found to benot justifiable. The rejection of the request of the Respondent was foundto be in violation of Section 13 (6) of the 2003 Act. On such findings, theHigh Court declared that the Respondent was entitled for the benefit ofadaptation of sentence in terms of Section 13 of the 2003 Act. Noticewas issued by this Court on 26.08.2019 in the SLP and the judgment ofthe High Court was stayed.

6. Ms. Madhvi Divan, learned Additional Solicitor General forIndia appearing for the Appellant relied upon the statement of objectsand reasons of the 2003 Act to submit that the receiving State is boundby the legal nature and duration of the sentence as determined by thetransferring State, though the enforcement of the sentence is governedby the law of the receiving State. She further submitted that the CentralGovernment may accept the transfer of the prisoner in accordance withSection 12 of the 2003 Act subject to the terms and conditions as areagreed upon between India and another contracting State. Section 13(6) of the 2003 Act gives discretion to the Central Government to adaptthe sentence of imprisonment passed against the prisoner in the contracting A

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AState if it is incompatible with the Indian law as to its nature, duration orboth. As per Section 13 (6), the adaptation should be compatible to thesentence of imprisonment provided for a similar offence, had the offencebeen committed in India. According to the proviso to Section 13 (6), thesentence adapted shall as far as possible, correspond to the sentenceimposed by the judgment of the contracting State to the prisoner andBsuch adapted sentence shall not aggravate the punishment by its nature,duration or both relating to the sentenced imposed in the contractingState. The ASG relied upon Article 8 of the agreement between theGovernment of India and Government of Mauritius to argue that India isbound by the legal nature and duration of the sentence as determined byCthe transferring State. She asserted that the expression ‘incompatible’appearing in Section 13 (6) of the 2003 Act was misconstrued by theHigh Court. According to the learned Additional Solicitor General,discretion vested in the Central Government under Section 13 (6) of the2003 Act required to be exercised only when the sentence of imprisonmentDpassed against the prisoner by the contracting State is incompatible withthe Indian law as a whole. The exercise of discretion of the CentralGovernment under Section 13 (6) of the 2003 Act depends on variety offactors, keeping in mind the comity of nations and strategic partnership.Mechanical reduction of sentence would be detrimental to the interestsof the other prisoners awaiting repatriation from Mauritius to India. SheEfurther asserted that the Respondent cannot seek reduction of sentenceafter submitting an undertaking that he will abide by the sentenceadaptability order issued at the time of his repatriation back to India. Thecontention of the Appellant is that the decision to not reduce the sentenceof the Respondent is prompted by foreign policy which should not beFlightly interfered with by judicial review. The learned Additional SolicitorGeneral further referred to the strong bilateral ties between India andMauritius which may be adversely affected by interference with thesentence imposed by the Supreme Court of Mauritius in a case of drugtrafficking which is a pressing issue in Mauritius presently.G7. Mr. A.M. Dar, learned Senior Counsel appearing for theRespondent justified the judgment of the High Court and submitted thatno reasons have been given by the Government for rejecting therepresentation preferred by the Respondent for reduction of sentence.He submitted that Respondent is being discriminated as the Governmentof India has reduced the sentence in respect of other persons who haveH

been repatriated to India. He also referred to a judgment of the HighCourt of Bombay by which the sentence of the petitioner therein wasreduced to 20 years from 30 years. During the course of hearing, wewere informed that the said judgment is subject matter of a SpecialLeave Petition pending in this Court. He further stated that there isobvious incompatibility between the sentence imposed by the SupremeCourt of Mauritius with the sentence that may be imposed for a similaroffence under Section 21 (b) of the NDPS Act. The quantity of heroinwhich was found to be in possession of the Respondent is an intermediatequantity under the NDPS Act and the maximum sentence that can beimposed on the convict can be only 10 years. As the Respondent hasalready undergone 10 years, the Government accepted to take intoaccount the sentence undergone by him in Mauritius.

8. To substantiate its argument, the Appellant placed on record adocument titled “Common wealth Human Rights Initiative”, Bringingthem Home - Repatriation of Indian Nationals from Foreign Prisons: ABarrier Analysis, 2017. In this document, a reference has been made tothe ‘Guidelines for the Transfer of Sentenced Persons under theRepatriation of Prisoners Act, 2003’ issued by the Ministry of HomeAffairs, Government of India on 10.08.2015 under the Repatriation Act,2003. As per the guidelines, in case of adaptation of sentence of a prisonerconvicted on the charge of drug trafficking, a reference has to be madeto the Narcotics Control Bureau (NCB) to assess the proposedrepatriation and the probabilities of the prisoner indulging in similar activityon his release. Before granting permission for repatriation, the prisonerhas to be informed about the total quantum of sentence which he willhave to undergo in India and repatriation would be allowed only if theprisoner gives his consent in writing. There is no dispute that theRespondent has given an undertaking to this effect on 19.10.2015.

9. The question that arises for our consideration is related to theinterpretation on Sections 12 and 13 (6) of the 2003 Act and Article 8 ofthe transfer of sentenced prisoners’ agreement entered between Indianand Mauritius.

10. The preamble of the 2003 Act initially reads as follows: - “An Act to provide for the transfer of certain prisoners fromIndia to country or place outside India and reception in Indiaof certain prisoners from country or place outside India.”

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A11. The object of the 2003 Act is to provide an opportunity to theconvicts to be repatriated to their country so that they can be closer totheir families and have better chances of rehabilitation. One of the salientfeatures of the 2003 Act is also that the enforcement of sentence of therepatriated 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 andBduration of the sentence as determined by the transferring State. Whileoperating in accordance with this object and feature, Section 12 of the2003 Act makes it clear that the transfer of a prisoner who is a citizen ofIndia from a contracting State wherein he is undergoing sentence ofimprisonment may be accepted by the Central Government, subject toCcertain conditions that may be agreed between India and the contractingState. The decision to be taken by the Government on the representationpreferred for transfer, therefore, shall be subject to the agreement enteredinto between Republic of India and Republic of Mauritius regarding thetransfer of prisoners. Article 8 of the said agreement categorically statesthat while continuing the enforcement of the sentence, India shall beDbound by the legal nature and duration of the sentence as determined bytransferring State.

12. Article 8 (2) of the agreement provides that if the sentenceimposed by the transferring State (Mauritius) is incompatible with thelaw in India by its nature or duration or both, the sentence may be adaptedEby the receiving State, namely India in this case. The adaptation shall bewith regard to the duration or nature of punishment as prescribed byIndian law. However, Article 8 (2) further makes it clear that even whenthe sentence is adapted by the receiving State (India), the nature andduration of the punishment shall, as far as possible, correspond with thatFimposed by the transferring State (Mauritius). The provision for adaptationis also found in Section 13(6) of the 2003 Act. Section 13 (6) empowersthe Government of India to adapt the sentence compatible to the sentenceof imprisonment provided for a similar offence had that offence beencommitted in India, provided the sentence of imprisonment passed in thecontracting State (Mauritius) is incompatible with Indian law.G

13. It is also relevant to examine the scope of Section 12 (2) ofthe 2003 Act. The Section enables the Government to issue a warrant todetain the prisoner in accordance with the provisions contained in Section13 (4) if the Government decides to accept the transfer of a prisonerunder Section 12(1) of the Act. Section 13 (4) (c) of the Act makes itH

clear that a warrant shall state the nature and duration of imprisonmentof the prisoner in accordance with the terms and conditions as referredto in Section 12 (1) and the imprisonment of such prisoner in India shallbe in such manner as may be contained in the warrant. It is relevant tonote that the warrant issued in this case on 24.10.2016 refers to thesentence of the Respondent as 26 years.

14. On a combined reading of Section 12 and 13 of the 2003 Actand Article 8 of the Agreement, the following principles can be deduced:- A.Any request for transfer of a prisoner from a contractingState to India shall be subject to the terms and conditionsas stated in the agreement between a contracting State andGovernment of India.

B.The duration of imprisonment shall be in accordance withthe terms and conditions referred to in Section 12 (1) of the2003 Act, meaning thereby that the acceptance of transferof a prisoner shall be subject to the terms and conditions inthe agreement between the two countries with respect tothe transfer of prisoners. To make it further clear, thesentence imposed by the transferring State shall be bindingon the receiving State i.e., India.

C.On acceptance of the request for transfer of an Indianprisoner convicted and sentenced in a contracting State, awarrant shall be issued for detention of the prisoner inaccordance with the provisions of Section 13 of the 2003Act in the form prescribed.

D.The warrant which is to be issued has to provide for thenature and duration of imprisonment of prison in accordancewith the terms and conditions as mentioned in Section 12(1)of the Act, that is, as agreed between the two contractingStates.

E.The imprisonment of the transferred prisoner shall be inaccordance with the warrant.

F.The Government is empowered to adapt the sentence tothat provided for a similar offence had that offence beencommitted in India. This can be done only in a situationwhere the Government is satisfied that the sentence of the A

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Aimprisonment is incompatible with Indian law as to its nature,duration or both.

G.In the event that the Government is considering a requestfor adaptation, it has to make sure that the adapted sentencecorresponds to the sentence imposed by the contractingstate, as far as possible.

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15. It is, therefore, clear that the sentence imposed by the SupremeCourt of Mauritius in this case is binding on India. A warrant of detentionwas issued in which it was specified that the Respondent has to undergoa sentence of 26 years. As per Section 13 (4), the sentence shall be 26Cyears. The question of adaptation of the sentence can only be when theCentral Government is convinced that the sentence imposed by theSupreme Court of Mauritius is incompatible with Indian law.

16. Reference to Indian law in Section 13 (6) is not restricted to aparticular Section in NDPS Act. Incompatibility with Indian law is withDreference to the enforcement of the sentence imposed by the SupremeCourt of Mauritius being contrary to fundamental laws of India. It isonly in case of such an exceptional situation, that it is open the CentralGovernment to adapt the sentence imposed by the Supreme Court ofMauritius to be compatible to a sentence of imprisonment provided forthe similar offence. Even in cases where adaptation is being consideredEby the Central Government, it does not necessarily have to adapt thesentence to be exactly in the nature and duration of imprisonment providedfor in the similar offence in India. In this circumstance as well, the CentralGovernment has to make sure that the sentence is made compatiblewith Indian law corresponding to the nature and duration of the sentenceFimposed by the Supreme Court of Mauritius, as far as possible.

17. The High Court allowed the Writ Petition only on the groundthat there is incompatibility between the sentence imposed on theRespondent by the Supreme Court of India and a sentence that wouldhave been imposed on the Respondent if a similar offence would haveGbeen committed in India. In doing so, the High Court failed to examinethe statement of object and reasons for the 2003 Act, the scope of Sections12 and 13 of the 2003 Act and the agreement for transfer of prisoners asentered into between Republic of India and Republic of Mauritius.

18. The adaptation of sentence from 26 years to 10 years as perSection 21 (b) of the NDPS Act was rejected by the Central Government H

UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.[L. NAGESWARA RAO, J.]

on the ground that it would amount to reduction of sentence by 16 yearswhich would not be in consonance with Section 13 (6) of the 2003 Actand Article 8 of the Agreement. The reasons recorded by the CentralGovernment to reject the request for scaling down the sentence are inaccordance with the provisions of the 2003 Act and the agreemententered into between India and Mauritius as discussed above. As wehave upheld the order of the Central Government, for the reasons givenabove, it is not necessary to refer to the other submissions made by thelearned Additional Solicitor General.

19. For the aforementioned reasons, the Appeal is allowed.

Divya Pandey

Appeal allowed

(Assisted by : Roopanshi Virang, LCRA)

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