UNION OF INDIA & ANR.versusSHAIKH ISTIYAQ AHMED & ORS.

                         [2022] 2 S.C.R. 679                              679


                    UNION OF INDIA & ANR.                                 A
                                  v.
               SHAIKH ISTIYAQ AHMED & ORS.
                  (Criminal Appeal No. 71 of 2022)
                         JANUARY 11, 2022                                 B
        [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 Psychotropic
                                                                          C
Substances Act, 1994 – s.21(b) – International Convention/Treaties
– Transfer of Sentenced Prisoners’ Agreement between India and
Mauritius – Article 8 – Continued enforcement of sentence –
Respondent convicted by Supreme Court of Mauritius under
Dangerous Drugs Act, sentenced to imprisonment for 26 years –
Transferred to India under the 2003 Act – His representation u/           D
s.13(6), 2003 Act to scale down the sentence to 10 years as per
s.21(b), NDPS Act was rejected by Central Govt. – Challenged,
writ petition allowed by High Court – On appeal, held: Question of
adaptation of the sentence can only be when the Central Government
is convinced that the sentence imposed by the Supreme Court of
                                                                          E
Mauritius is incompatible with Indian law – Incompatibility with
Indian law is with reference to the enforcement of the sentence
imposed by the Supreme Court of Mauritius being contrary to
fundamental laws of India – It is only in case of such an exceptional
situation, that it is open to the Central Govt. to adapt the sentence
imposed by the Supreme Court of Mauritius to be compatible to a           F
sentence of imprisonment provided for the similar offence – Further,
reference to Indian law in s.13(6) is not restricted to a particular
section in NDPS Act – Even in cases where adaptation is considered
by Central Govt., it does not necessarily have to adapt the sentence
to be exactly in the nature and duration of imprisonment provided
                                                                          G
for in the similar offence in India – In the present case, the sentence
imposed by the Supreme Court of Mauritius is binding on India –
Order of the Central Govt. upheld.
      Repatriation of Prisoners Act, 2003 – Object of – Discussed.
                                                                          H
                                 679
680            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A           Repatriation of Prisoners Act, 2003 – ss.12, 13(6) –
      Interpretation of – Held: s.12 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 – s.13(6) empowers
B
      the Govt. of India to adapt the sentence compatible to the sentence
      of imprisonment provided for a similar offence had that offence
      been committed in India, provided the sentence of imprisonment
      passed in the contracting State (Mauritius) is incompatible with
      Indian law.
C
           Repatriation of Prisoners Act, 2003 – s.12(2) – Scope of –
      Discussed.
            Repatriation of Prisoners Act, 2003 – s.12 r/w s.13 –
      Principles laid down.
D           Allowing the appeal, the Court
            HELD: 1.1 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. The object
E     of the Repatriation of Prisoners Act, 2003 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
F     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.
      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
G     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

H
  UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.                 681


transfer, therefore, shall be subject to the agreement entered         A
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. Article 8 (2)
                                                                       B
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      C
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 provision for adaptation is also found in
Section 13(6) of the 2003 Act. Section 13 (6) empowers the
                                                                       D
Government of India to adapt the sentence compatible to the
sentence of imprisonment provided for a similar offence had that
offence been committed in India, provided the sentence of
imprisonment passed in the contracting State (Mauritius) is
incompatible with Indian law. Section 12 (2) of the 2003 Act
enables the Government to issue a warrant to detain the prisoner       E
in accordance with the provisions contained in Section 13 (4) if
the Government decides to accept the transfer of a prisoner under
Section 12(1) of the Act. Section 13 (4) (c) of the Act makes it
clear that a warrant shall state the nature and duration of
imprisonment of the prisoner in accordance with the terms and
                                                                       F
conditions as referred to in Section 12 (1) and the imprisonment
of such prisoner in India shall be in such manner as may be
contained in the warrant. [Paras 3,11-13][686-D; 690-A-H; 691-A]
      1.2 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        G
undergo a sentence of 26 years. As per Section 13 (4), the
sentence shall be 26 years. The question of adaptation of the


                                                                       H
682            SUPREME COURT REPORTS                      [2022] 2 S.C.R.


A     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. Reference to Indian law in Section
      13 (6) is not restricted to a particular Section in NDPS Act.
      Incompatibility with Indian law is with reference to the
      enforcement of the sentence imposed by the Supreme Court of
B
      Mauritius being contrary to fundamental laws of India. It is only
      in case of such an exceptional situation, that it is open the Central
      Government to adapt the sentence imposed by the Supreme Court
      of Mauritius to be compatible to a sentence of imprisonment
      provided for the similar offence. Even in cases where adaptation
C     is being considered by the Central Government, it does not
      necessarily have to adapt the sentence to be exactly in the nature
      and duration of imprisonment provided for in the similar offence
      in India. In this circumstance as well, the Central Government
      has to make sure that the sentence is made compatible with Indian
      law corresponding to the nature and duration of the sentence
D
      imposed by the Supreme Court of Mauritius, as far as possible.
      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 Mauritius and a
      sentence that would have been imposed on the Respondent if a
E     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. The
      adaptation of sentence from 26 years to 10 years as per Section
F
      21 (b) of the NDPS Act was rejected by the Central Government
      on the ground that it would amount to reduction of sentence by
      16 years which would not be in consonance with Section 13 (6) of
      the 2003 Act and Article 8 of the Agreement. The reasons
      recorded by the Central Government to reject the request for
G     scaling down the sentence are in accordance with the provisions
      of the 2003 Act and the agreement entered into between India
      and Mauritius. [Paras 15-18][692-B-H; 693-A-B]



H
  UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.                     683


       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.                A
71 of 2022.
      From the Judgment and Order dated 02.05.2019 of the High Court
of Judicature at Bombay in Criminal Writ Petition No.3975 of 2018.
      Ms. Madhvi Divan, ASG, Ms. Suhashini Sen, Satya Lipsu Ray,           B
Ms. Shradha Deshmukh, Ms. Nidhi Khanna, Arvind Kumar Sharma,
Advs. for the Appellants.
      A. M. Dar, Sr. Adv., Danish Majid Dar, Bhat Shafi, Muzaffar
Yasinshah Patel, Ms. Sameera A. R. Shaikh, Ms. Shraddha Suman
Chandel, Abhay Anand Jena, Rahul Chitnis, Sachin Patil, Aaditya A.         C
Pande, Geo Joseph, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      L. NAGESWARA RAO, J.
      Leave granted.                                                       D
       1. 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       E
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
                                                                           F
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           G
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.
                                                                           H
684            SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A            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
B
      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
C     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:
            “12. Transfer into India. —
            (1) The Central Government may accept the transfer of a
D
            prisoner, who is a citizen of India, from a contracting State
            wherein he is undergoing any sentence of imprisonment
            subject to such terms and conditions as may be agreed to
            between India and that State.
            (2) If the Central Government accepts the request for a
E
            transfer under sub section (1), then, notwithstanding anything
            contained in any other law for the time being in force, it may
            issue a warrant to detain the prisoner in prison in accordance
            with the provisions of section 13 in such form as may be
            prescribed.
F
            13. Determination of prison and issue of warrant for receiving
            transfer in India. —
            (1) The Central Government shall, in consultation with a State
            Government, determine the prison situated within the
G           jurisdiction of such State Government where the prisoner with
            respect to whom a warrant has been issued under sub section
            (2) of section 12, shall be lodged and the officer who shall
            receive and hold him in custody.
            (2) The Central Government shall authorize any officer not
H           below the rank of a Joint Secretary to that Government to
UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.                   685
               [L. NAGESWARA RAO, J.]

   issue a warrant under sub section (2) of section 12 and to          A
   direct the officer referred to in sub section (1) to receive and
   hold 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 to        B
   him under the direction made in the warrant issued under
   sub section (2) of section 12 and to convey such prisoner to
   any prison determined under sub section (1) for being dealt
   with in accordance with the said warrant and if the prisoner
   escapes from such custody, the prisoner may be arrested
   without warrant by any person who shall without undue delay         C
   deliver such prisoner to the officer in charge of the nearest
   police station and the prisoner so arrested shall be liable for
   committing an offence under section 224 of the Indian Penal
   Code (45 of 1860) and shall also be liable to be dealt with in
   accordance with the said warrant.                                   D
   (4) A warrant under sub section (2) of section 12 shall provide
   for-—
   (a) the bringing of the prisoner into India from a contracting
   State or a place outside India;
                                                                       E
   (b) the taking of such prisoner in any part of India being a
   place at which effect may be given to the provisions contained
   in the warrant;
   (c) the nature and duration of imprisonment of the prisoner
   in accordance with the terms and conditions referred to in          F
   sub section (1) of section 12 and the imprisonment of such
   prisoner in India in such manner as may be contained in the
   warrant; and
   (d) any other matter which may be prescribed.
   (5) Notwithstanding anything contained in any other law for         G
   the time being in force, the imprisonment of a prisoner in
   compliance with a warrant issued under sub section (2) of
   section 12 shall be deemed to be imprisonment under a
   sentence of a court competent to pass such a sentence of
   imprisonment in India.
                                                                       H
686              SUPREME COURT REPORTS                        [2022] 2 S.C.R.


A           (6) If the sentence of imprisonment passed against the
            prisoner in the contracting State is incompatible with the Indian
            law as to its nature, duration or both, the Central Government
            may, by order, adapt the sentence of such punishment as to
            the nature, duration or both, as the case may be, as is
            compatible to the sentence of imprisonment provided for a
B
            similar offence had that offence been committed in India:
            Provided that the sentence so adapted shall, as far as possible,
            correspond with the sentence imposed by the judgment of the
            contracting State to the prisoner and such adapted sentence
            shall not aggravate the punishment, by its nature, duration
C           or both relating to the sentence imposed in the contracting
            State.”
            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
D     enforcement of sentence, which are as follows:
            “ARTICLE 8
            Continued enforcement of sentence
            1.     The receiving State shall be bound by the legal nature
E                  and duration of the sentence as determined by the
                   transferring State.
            2.     If, however, the sentence is by its nature or duration or
                   both incompatible with the lawof the receiving State, or
                   its law so requires, that State may, by court or
F                  administrative order, adapt the sentence to a punishment
                   or measure prescribed by its own law. As to its nature
                   and duration the punishment or measure shall, as far
                   as possible, correspond with that imposed by the
                   judgment of the transferring State. It shall however not
                   aggravate, by its nature or duration, the sentence
G
                   imposed by the transferring State.”
             4. In so far as the conviction and sentence of the Respondent is
      concerned, he travelled twice to Mauritius in the guise of doing business
      in scrap metal. On the third occasion, he was found to be in possession
      of 152.8 grams of heroin and was arrested. The Supreme Court of
H
  UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.                           687
                 [L. NAGESWARA RAO, J.]

Mauritius convicted the Respondent after taking into account the                 A
mitigating circumstances pleaded by the Respondent and sentenced him
to imprisonment for 26 years. On 09.10.2015, an undertaking was given
by the Respondent that he will abide by the terms and conditions of the
sentence adaptability order issued under the agreement/treaty on transfer
of sentenced prisoners entered into between India and Mauritius while
                                                                                 B
making a request for his repatriation to India. Subsequently, his repatriation
to India was approved on 04.03.2016 and a warrant of transfer was
issued on 24.10.2016. After the transfer of the Respondent to India under
the 2003 Act, the Respondent preferred a representation to the Ministry
of Home Affairs, Government of India for reduction of sentence from
26 years to 10 years which is the maximum punishment prescribed under            C
Section 21 (b) of the NDPS Act as applicable for the quantity of heroin
seized from the Respondent. By an order dated 03.12.2018, his
representation for reduction of sentence term was rejected.
       5. While allowing the Writ Petition filed by the Respondent, the
High Court was of the opinion that if the offence was committed in               D
India, the Respondent would have been sentenced to for a maximum
period of 10 years as provided in Section 21(b) of the NDPS Act. The
reason given by the authorities for not accepting the request made by
the Respondent for reduction of sentence by 10 years was found to be
not justifiable. The rejection of the request of the Respondent was found
                                                                                 E
to be in violation of Section 13 (6) of the 2003 Act. On such findings, the
High Court declared that the Respondent was entitled for the benefit of
adaptation of sentence in terms of Section 13 of the 2003 Act. Notice
was issued by this Court on 26.08.2019 in the SLP and the judgment of
the High Court was stayed.
                                                                                 F
       6. Ms. Madhvi Divan, learned Additional Solicitor General for
India appearing for the Appellant relied upon the statement of objects
and reasons of the 2003 Act to submit that the receiving State is bound
by the legal nature and duration of the sentence as determined by the
transferring State, though the enforcement of the sentence is governed
by the law of the receiving State. She further submitted that the Central        G
Government may accept the transfer of the prisoner in accordance with
Section 12 of the 2003 Act subject to the terms and conditions as are
agreed upon between India and another contracting State. Section 13
(6) of the 2003 Act gives discretion to the Central Government to adapt
the sentence of imprisonment passed against the prisoner in the contracting
                                                                                 H
688             SUPREME COURT REPORTS                            [2022] 2 S.C.R.


A     State if it is incompatible with the Indian law as to its nature, duration or
      both. As per Section 13 (6), the adaptation should be compatible to the
      sentence of imprisonment provided for a similar offence, had the offence
      been committed in India. According to the proviso to Section 13 (6), the
      sentence adapted shall as far as possible, correspond to the sentence
      imposed by the judgment of the contracting State to the prisoner and
B
      such adapted sentence shall not aggravate the punishment by its nature,
      duration or both relating to the sentenced imposed in the contracting
      State. The ASG relied upon Article 8 of the agreement between the
      Government of India and Government of Mauritius to argue that India is
      bound by the legal nature and duration of the sentence as determined by
C     the transferring State. She asserted that the expression ‘incompatible’
      appearing in Section 13 (6) of the 2003 Act was misconstrued by the
      High Court. According to the learned Additional Solicitor General,
      discretion vested in the Central Government under Section 13 (6) of the
      2003 Act required to be exercised only when the sentence of imprisonment
D     passed against the prisoner by the contracting State is incompatible with
      the Indian law as a whole. The exercise of discretion of the Central
      Government under Section 13 (6) of the 2003 Act depends on variety of
      factors, keeping in mind the comity of nations and strategic partnership.
      Mechanical reduction of sentence would be detrimental to the interests
      of the other prisoners awaiting repatriation from Mauritius to India. She
E     further asserted that the Respondent cannot seek reduction of sentence
      after submitting an undertaking that he will abide by the sentence
      adaptability order issued at the time of his repatriation back to India. The
      contention of the Appellant is that the decision to not reduce the sentence
      of the Respondent is prompted by foreign policy which should not be
F     lightly interfered with by judicial review. The learned Additional Solicitor
      General further referred to the strong bilateral ties between India and
      Mauritius which may be adversely affected by interference with the
      sentence imposed by the Supreme Court of Mauritius in a case of drug
      trafficking which is a pressing issue in Mauritius presently.
G            7. Mr. A.M. Dar, learned Senior Counsel appearing for the
      Respondent justified the judgment of the High Court and submitted that
      no reasons have been given by the Government for rejecting the
      representation preferred by the Respondent for reduction of sentence.
      He submitted that Respondent is being discriminated as the Government
      of India has reduced the sentence in respect of other persons who have
H
  UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.                             689
                 [L. NAGESWARA RAO, J.]

been repatriated to India. He also referred to a judgment of the High              A
Court of Bombay by which the sentence of the petitioner therein was
reduced to 20 years from 30 years. During the course of hearing, we
were informed that the said judgment is subject matter of a Special
Leave Petition pending in this Court. He further stated that there is
obvious incompatibility between the sentence imposed by the Supreme
                                                                                   B
Court of Mauritius with the sentence that may be imposed for a similar
offence under Section 21 (b) of the NDPS Act. The quantity of heroin
which was found to be in possession of the Respondent is an intermediate
quantity under the NDPS Act and the maximum sentence that can be
imposed on the convict can be only 10 years. As the Respondent has
already undergone 10 years, the Government accepted to take into                   C
account the sentence undergone by him in Mauritius.
       8. To substantiate its argument, the Appellant placed on record a
document titled “Common wealth Human Rights Initiative”, Bringing
them Home - Repatriation of Indian Nationals from Foreign Prisons: A
Barrier Analysis, 2017. In this document, a reference has been made to             D
the ‘Guidelines for the Transfer of Sentenced Persons under the
Repatriation of Prisoners Act, 2003’ issued by the Ministry of Home
Affairs, Government of India on 10.08.2015 under the Repatriation Act,
2003. As per the guidelines, in case of adaptation of sentence of a prisoner
convicted on the charge of drug trafficking, a reference has to be made
to the Narcotics Control Bureau (NCB) to assess the proposed                       E
repatriation and the probabilities of the prisoner indulging in similar activity
on his release. Before granting permission for repatriation, the prisoner
has to be informed about the total quantum of sentence which he will
have to undergo in India and repatriation would be allowed only if the
prisoner gives his consent in writing. There is no dispute that the                F
Respondent has given an undertaking to this effect on 19.10.2015.
       9. The question that arises for our consideration is related to the
interpretation on Sections 12 and 13 (6) of the 2003 Act and Article 8 of
the transfer of sentenced prisoners’ agreement entered between Indian
and Mauritius.                                                                     G
       10. The preamble of the 2003 Act initially reads as follows: -
       “An Act to provide for the transfer of certain prisoners from
       India to country or place outside India and reception in India
       of certain prisoners from country or place outside India.”
                                                                                   H
690             SUPREME COURT REPORTS                           [2022] 2 S.C.R.


A             11. The object of the 2003 Act 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
B
      duration of the sentence as determined by the transferring State. 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
C     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
D
      bound by the legal nature and duration of the sentence as determined by
      transferring State.
             12. 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
E     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
F     imposed by the transferring State (Mauritius). The provision for adaptation
      is also found in Section 13(6) of the 2003 Act. Section 13 (6) empowers
      the Government of India to adapt the sentence compatible to the sentence
      of imprisonment provided for a similar offence had that offence been
      committed in India, provided the sentence of imprisonment passed in the
      contracting State (Mauritius) is incompatible with Indian law.
G
             13. It is also relevant to examine the scope of Section 12 (2) of
      the 2003 Act. The Section enables the Government to issue a warrant to
      detain the prisoner in accordance with the provisions contained in Section
      13 (4) if the Government decides to accept the transfer of a prisoner
      under Section 12(1) of the Act. Section 13 (4) (c) of the Act makes it
H
  UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.                       691
                 [L. NAGESWARA RAO, J.]

clear that a warrant shall state the nature and duration of imprisonment     A
of the prisoner in accordance with the terms and conditions as referred
to in Section 12 (1) and the imprisonment of such prisoner in India shall
be in such manner as may be contained in the warrant. It is relevant to
note that the warrant issued in this case on 24.10.2016 refers to the
sentence of the Respondent as 26 years.
                                                                             B
      14. On a combined reading of Section 12 and 13 of the 2003 Act
and Article 8 of the Agreement, the following principles can be deduced:-
      A.     Any request for transfer of a prisoner from a contracting
             State to India shall be subject to the terms and conditions
             as stated in the agreement between a contracting State and      C
             Government of India.
      B.     The duration of imprisonment shall be in accordance with
             the terms and conditions referred to in Section 12 (1) of the
             2003 Act, meaning thereby that the acceptance of transfer
             of a prisoner shall be subject to the terms and conditions in   D
             the agreement between the two countries with respect to
             the transfer of prisoners. To make it further clear, the
             sentence imposed by the transferring State shall be binding
             on the receiving State i.e., India.
      C.     On acceptance of the request for transfer of an Indian          E
             prisoner convicted and sentenced in a contracting State, a
             warrant shall be issued for detention of the prisoner in
             accordance with the provisions of Section 13 of the 2003
             Act in the form prescribed.
      D.     The warrant which is to be issued has to provide for the        F
             nature and duration of imprisonment of prison in accordance
             with the terms and conditions as mentioned in Section 12(1)
             of the Act, that is, as agreed between the two contracting
             States.
      E.     The imprisonment of the transferred prisoner shall be in
                                                                             G
             accordance with the warrant.
      F.     The Government is empowered to adapt the sentence to
             that provided for a similar offence had that offence been
             committed in India. This can be done only in a situation
             where the Government is satisfied that the sentence of the
                                                                             H
692               SUPREME COURT REPORTS                          [2022] 2 S.C.R.


A                   imprisonment is incompatible with Indian law as to its nature,
                    duration or both.
             G.     In the event that the Government is considering a request
                    for adaptation, it has to make sure that the adapted sentence
                    corresponds to the sentence imposed by the contracting
B                   state, as far as possible.
             15. 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
C     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.
              16. Reference to Indian law in Section 13 (6) is not restricted to a
      particular Section in NDPS Act. Incompatibility with Indian law is with
D     reference to the enforcement of the sentence imposed by the Supreme
      Court of Mauritius being contrary to fundamental laws of India. It is
      only in case of such an exceptional situation, that it is open the Central
      Government to adapt the sentence imposed by the Supreme Court of
      Mauritius to be compatible to a sentence of imprisonment provided for
      the similar offence. Even in cases where adaptation is being considered
E     by the Central Government, it does not necessarily have to adapt the
      sentence to be exactly in the nature and duration of imprisonment provided
      for in the similar offence in India. In this circumstance as well, the Central
      Government has to make sure that the sentence is made compatible
      with Indian law corresponding to the nature and duration of the sentence
F     imposed by the Supreme Court of Mauritius, as far as possible.
             17. 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
G     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.
            18. The adaptation of sentence from 26 years to 10 years as per
      Section 21 (b) of the NDPS Act was rejected by the Central Government
H
   UNION OF INDIA & ANR. v. SHAIKH ISTIYAQ AHMED & ORS.                     693
                  [L. NAGESWARA RAO, J.]

on the ground that it would amount to reduction of sentence by 16 years     A
which would not be in consonance with Section 13 (6) of the 2003 Act
and Article 8 of the Agreement. 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 as discussed above. As we
                                                                            B
have upheld the order of the Central Government, for the reasons given
above, it is not necessary to refer to the other submissions made by the
learned Additional Solicitor General.
       19. For the aforementioned reasons, the Appeal is allowed.
                                                                            C
Divya Pandey                                               Appeal allowed
(Assisted by : Roopanshi Virang, LCRA)




                                                                            D




                                                                            E




                                                                            F




                                                                            G




                                                                            H