Bombay High Court
Mr. Prem Kishore Raj vs The Department Of Home on 14 October, 2013
Bench: S.C. Dharmadhikari, G.S. Patel
CRWP2428-13-F
agk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2428 OF 2011
Mr. Prem Kishore Raj,
C5480, Barrack No.6, Thane Central
Prison, Thane (W), Thane 400601, on
parole leave ...Petitioner
ig versus
1. The Department of Home,
through its Principal Secretary
(Appeals), Government of
Maharashtra, Mantralaya, Mumbai
400 032
2. The Inspector-General of Prisons,
State of Maharashtra, 2nd Floor,
Central Building, Pune 411 001
3. The Superintendent,
Thane Central Prison, Thane (W),
Thane 400 601
5. The Union of India,
Through the Secretary, Ministry of
Home Affairs, North Block, New
Delhi 110 001
6. Union of India,
Through the Secretary, Ministry of
Law & Justice, North Block, New
Delhi 110 001 ...Respondents
1 of 16
::: Downloaded on - 27/11/2013 20:26:13 :::
CRWP2428-13-F
________
Mr. Kranti Anand, Advocate, for the Petitioner.
Mrs. A.S. Pai, APP, for the State
Mr. Kevic Setalvad, Senior Counsel, Additional Solicitor-General,
along with Mr. Sandeep K. Shinde, Advocate, for Respondents No.
4 and 5.
________
CORAM : S.C. Dharmadhikari
& G.S. Patel, JJ.
JUDGEMENT RESERVED ON : 1st October 2013
JUDGEMENT PRONOUNCED ON : 14th October 2013
JUDGMENT : (Per G.S. Patel, J.)
1. On 1st May 1996, Prem Kishore Raj ("Raj"), the Petitioner,
arrived at the Sir Seewosagar Ramgoolam International Airport in
the Republic of Mauritius on a flight from India. Twenty-one years
old at the time, Raj was a young film actor and, he claims, had
travelled to Mauritius for the shooting of a film. This was his first
trip overseas.
2. When he disembarked, Raj was carrying a leather briefcase. A
senior Customs Officer, one Mr. Caullychurn, noticed him and, at
the customs inspection counter, remarked that the briefcase seemed
abnormal. The Customs and Drug Unit carried out a search. When
Caullychurn pierced the leather lining of Raj's briefcase with a pen,
he noticed a brown substance on the pen's tip. He tore open the
leather lining. There was plywood beneath. Removing this, he saw
2 of 16
CRWP2428-13-F
two rectangular plastic parcels. To a question from the Assistant
Superintendent of Police present, Raj said he could not account for
the presence of these parcels. The Chief Forensic Science Officer
examined them. They were found to be 371.3 grams of heroin.
3. Later that day, Raj was taken to Villa Pointe aux Biches where,
or so he is supposed to have said, a contact person was to meet him.
That person did telephone but did not show up. The police claimed
that this was probably because, by that time, the press had already
given some considerable publicity to the case. Raj received several
phone calls from India. One of these was from a person named
Hassan. Raj gave six statements to the police. In the first five, he
explained that he was in Mauritius for the shooting of a film, that he
had used his own money to pay for the trip, borrowed the rest from
his mother and aunt, and had about $700 in travellers'cheques. His
travel arrangements had been made by his friends, of whom Hassan
was one. The sixth statement was the one in which Raj is supposed
to have confessed that, with his knowledge, Hassan had concealed
the drugs in his briefcase so that Raj could make some extra money.
Raj was to deliver the briefcase to Hassan's friend at Villa Pointe aux
Biches and, in return, Raj would be paid Rs.50,000 on his return to
India so that he could invest this in his new venture, a television
serial. The police claimed that he also said he had not mentioned
this in his previous five statements as he feared that Hassan might
harm his family in India. He pleaded for clemency, saying he had
never been involved in any such dealings before.
4. A year and a half later, on 18th December 1997, Raj was
convicted by Assizes Court, a bench of the Supreme Court of
3 of 16
CRWP2428-13-F
Mauritius. That court found him to be a drug trafficker. He was
sentenced to penal servitude for life. Raj claims he was
unrepresented by his lawyer at the time the order was pronounced.
He invoked his right to appeal and therefore, pending appeal, was
remanded to jail. Raj says he was not provided a lawyer. He was
given no legal aid. Nothing came of his appeal. He continued to
remain incarcerated. At that time, under the Mauritian Dangerous
Drugs Act, 1986 read with the Code of Criminal Procedure, 1985, a
life sentence meant imprisonment for 30 years.
5. On 24th October 2005, the Republics of India and Mauritius
entered into an agreement for the transfer of sentenced prisoners
inter-se, each country agreeing to facilitate the transfer of sentenced
prisoners from one to the other. That agreement also contained a
provision for reconciling statutory incompatibilities in sentencing.
Article 8 of the Agreement said if the nature or duration, or both, of
a sentence passed in the transferring State was incompatible with
the law of the receiving State, then the receiving state, though
bound by the legal language and details of the sentence delivered in
the transferring state, could adapt that sentence to bring into
conformity with its own domestic law. That Article entrusts the
receiving State with the responsibility of harmonizing domestic law
and the sentence handed down by the transferring State. The
Agreement made it clear that any review of the judgment lay only
with the transferring State, not the receiving State, and that this
included all petitions or applications for pardon, amnesty,
commutation or remand. A copy of this Agreement has been
produced and is Exhibit "F" to the present Petition. This is the kind
4 of 16
CRWP2428-13-F
of bilateral agreement envisaged by the Repatriation of Prisoners
Act, 2003 in India, a matter we will consider presently.
6. Being an Indian national convicted in Mauritius and serving a
sentence there, Raj sought a transfer to India. His application was
approved. He was repatriated to India on 27th February 2008. By
this time, Raj had been in prison for a little short of 12 years. He
claims that while effecting the transfer, the Indian Government was
not given a complete set of the paper work and all the information in
connection with his case. His life sentence, according to the records
transmitted, was shown as starting from 8th January 1999, not 1st
May 1996. Even so, as we shall see, this makes little difference today.
7. In June 2009 and May 2011, on account of his parents' ill-
health, Raj sought and was granted parole. There is no record of his
ever having abused this liberty.
8. In the meantime, there were changes to the landscape of
criminal law in Mauritius. A 2007 amendment was introduced to
that nation's Criminal Procedure Code. One of the many questions
that came before the Supreme Court of Mauritius related to the
constitutionality of mandatory sentences. On 19th October 2007,
after the 2007 Act came into force, the Court of Criminal Appeal of
the Supreme Court of Mauritius decided Philibert v The State.1 The
appellant in that case, Philibert, was convicted of murder and
sentenced to 45 years' penal servitude under Section 222(1) of Code
of Criminal Procedure as amended in 1995. The Mauritian Supreme
Court rejected the submission that every mandatory penalty or
[2007] SCJ 274; YKJ Yeung Sik Yuen, CJ, E Balancy and A Caunhye, JJ
5 of 16
CRWP2428-13-F
mandatory minimum penalty prescribed by statute violated the
constitutional doctrine of separation of powers. It extensively
reviewed the case law, including that relating to mandatory death
sentences, and found that a given mandatory sentence might, in a
given case, be unconstitutional for violating the doctrine of
proportionality. Disagreeing with an earlier decision of 2006, it held
that a 45-year mandatory penalty was incompatible with the right to
a fair hearing guaranteed under the constitution of Mauritius, and,
too, with the right not to be subjected to inhuman or degrading
punishment (also so guaranteed). It would, the Court held, be
equally objectionable for a law to demand that Mauritian Courts
impose substantial prison sentences mandatorily fixed by statute,
thereby binding judicial hands. This would render it impossible for
an accused to invoke the doctrine of proportionality or to urge that
the sentence was inappropriate despite mitigating factors. After the
2007 amendment, the relevant section of the Criminal Procedure
Code would, therefore, have to be read down so that on conviction,
the courts would retain discretion in the matter of sentencing, the
statutory period prescribed being only the maximum that could be
imposed.2 According to Raj, following Philibert, sentences of penal
servitude for life pronounced before the 2007 amendment in many
drug-related cases were read down by the Supreme Court to mean
prison terms of 15 years.
9. On 16th July 2008, Raj's father filed a petition in Mauritius
for remission of the sentence imposed on Raj. Another year went
See also the 9 July 2008 decision of the Privy Council in which Philibert
and other cases are reviewed: Boucherville v The State of Mauritius
(Mauritius) [2008] UKPC 37. Online version available for download at:
http://www.saflii.org/mu/cases/UKPC/2008/37.html
6 of 16
CRWP2428-13-F
past. On 1st September 2009, Raj sent a letter to this Court seeking
its intervention, pointing out the change in the Mauritian law and
the fact that he had been denied proper legal assistance. On 15th
December 2009, this Court converted Raj's letter into Criminal
Application No.4278 of 2010. That was decided and disposed of on
8th January 2010 on a statement made by the respondents to that
application to the effect that a proposal from the jail authorities
dated 1st January 2010 had been submitted to the Principal
Secretary (Appeals), Department of Home and Jails, Government of
Maharashtra and that a decision would be taken thereon within six
weeks. Raj claims that despite that assurance, nothing effective was
done.
10. On 10th June 2010, Raj's father petition for remission was
accepted by the Mauritian government, which granted what is
described in the petition before us as a 'Presidential Pardon',
reducing Raj's sentence by a period of 6 years and 7 months. This
was communicated by the 5th Respondent, the Union of India's
Ministry of Home Affairs, to the Principal Secretary (Prisons, A&S)
of the Government of Maharashtra by a letter dated 17th September
2010.
11. By this time, over 14 years had passed since Raj was arrested
at the airport in Mauritius. On 30th May 2011, while on parole, Raj
took legal advice and called on the State Government's Home
Department to comply with its undertaking given to this Court to
decide the proposal relating to his case. Faced with continued
inaction, on 8th August 2011, Raj filed the present petition, seeking
various reliefs all essentially directed to securing his immediate
7 of 16
CRWP2428-13-F
release on the ground that he has already undergone a period of
imprisonment longer than that prescribed by Indian law.
12. This Petition was admitted on 15th September 2011 and, by
another order of 7th February 2012, its hearing was expedited. On
15th February 2013, this Court directed Raj to make a fresh
representation to the Union of India in both the Home Ministry and
in the Ministry of Law & Justice for the adaptation of his sentence
to one prescribed in domestic law under Section 13(6) of the
Repatriation of Prisoners Act, 2003 ("the Repatriation Act").
13.
Raj made such an application. On 29th June 2013 that
application was decided by the 4th Respondent. His sentence was
computed to be 20 years. The Petition was amended, pursuant to
leave granted on 26th July 2013, to challenge that decision. We have
heard Learned Advocates appearing for the contesting parties at
some length.
14. The question before us today is whether the 4th
Respondent's decision of 29th June 2013 is correct; specifically,
what is the maximum sentence that could have been handed down
to the Petitioner under Indian law? That law is the Narcotic Drugs
and Psychotropic Substances Act, 1985 ("NDPS"), but before we
consider its provisions, we must consider the frame and ambit of
Section 13(6) of the Repatriation Act.
15. The purpose and intent of Repatriation Act is
straightforward. As its Statement of Objects and Reasons makes
8 of 16
CRWP2428-13-F
clear, prior to that Act there was no provision, either in the Code of
Criminal Procedure, 1973 or any other law, by which foreign
prisoners in India could be transferred to their home countries. This
was a matter of no little concern: allowing such prisoners to be
repatriated to serve out their remaining jail terms would, it was
thought, serve the object of social rehabilitation by placing them
closer to their families. The Repatriation Act was intended to work
in conjunction with bilateral international sovereign treaties so that
the Central Government to could transfer convicted foreigners to
their home countries and could, equally, receive Indians
incarcerated abroad. The Act came into force on 1st January 2004. It
applies to such countries outside India as may be notified. 3 Where
there exists a bilateral treaty for the transfer of prisoners, the
Notification must also set out the full text of the treaty; and the
treaty and the application of the Act are co-terminus. 4 The Act can
be applied with such conditions, modifications and exceptions to
any country as the Central Government thinks necessary. 5 A
"contracting state" is a foreign government with whom the Central
Government has an arrangement, by treaty or otherwise, for the
mutual transfer of prisoners; and includes any foreign country or
place as may be notified under Section 3(1).6 A prisoner is defined to
mean a person serving a sentence of imprisonment under an order
passed by a criminal court in a contracting state. 7 Any prisoner who
is a citizen of a contracting state -- i.e., a foreign prisoner in India
-- can apply to the Central Government for transfer of his custody
Section 3(1)
Section 3(2)
Section 3(3)
Section 2(a)
Section 2(c)
9 of 16
CRWP2428-13-F
from India to that state. An application may also be made on his
behalf.8 There follow, in Sections 5 to 10, provisions for the
processing of that application, and, if granted, the procedure that
must be then followed to repatriate the prisoner. Section 11 says that
the repatriation of a prisoner from India to a contracting State is not
to affect the power of the court that passed the judgment to review
its judgment, nor the power of the Central or State Government to
suspend, remit or commute the sentence in accordance with law. In
other words, the transferring State alone is competent to decide
applications for review and to grant pardons, amnesty or
commutation.
16. Section 12 then deals with transfers into India, and says that
such a transfer (of an Indian citizen imprisoned in a foreign
contracting State) may be accepted by the Central Government on
such terms as the two States agree. Should the Indian Government
accept such an inbound transfer, then it may issue a warrant to
detain the prisoner in accordance with the provisions of Section 13.
Under that section, the Central Government determines the prison
in which the prisoner is to be held and for how long; the warrant for
that purpose must be issued by an officer not below the rank of a
Joint Secretary to the Government; an officer must also be
designated to receive and hold the prisoner in accordance with such
warrant; and the warrant must, among other things, specify the
nature and duration of the imprisonment.9
Section 4
Section 13(4)(c)
10 of 16
CRWP2428-13-F
17. Section 13(5) of the Repatriation Act opens with a non-
obstante clause and says that the imprisonment of an inbound
prisoner is deemed to be imprisonment under a sentence of a court
competent to pass such a sentence of imprisonment in India. This is
the first of two sections that bring to bear the provisions of an Indian
law corresponding to that under which the prisoner was convicted
abroad. The next sub-section, Section 13(6), relates to adaptation of
a sentence of imprisonment to bring it into conformity with
domestic law. It says that if the sentence of imprisonment passed
against the prisoner in the contracting state be incompatible with
Indian law as to nature, duration, or both, the Central Government
may pass an order adapting the sentence's nature or duration (or
both nature and duration) to make it compatible with a sentence of
imprisonment for a similar offence had that offence been committed
in India. The proviso to that sub-section requires that, as far as
possible, such adaptation must correspond with the sentence
imposed by the judgment of the contracting State and, in any case,
the adaptation cannot be one that aggravates the punishment, in
terms of its nature or duration (or both), imposed by the contracting
state. The Repatriation Act and the bilateral India-Mauritius
Agreement of 24th October 2005 thus form the totality of the
statutory framework for the transfer of prisoners from Mauritius to
India and vice-versa.
18. This now brings into sharper focus the issue at hand. Raj was
convicted in Mauritius. His sentence was, initially, of imprisonment
for 30 years. He was repatriated to India under the bilateral treaty
between Mauritius and India. In Mauritius, changes in the law
indicated that, on a consideration of the facts in his case, the life
11 of 16
CRWP2428-13-F
sentence of 30 years imposed on him could be read down to a period
of 15 years. What if Raj had been arrested, tried and convicted in
India, under our corresponding law, for exactly the same offence?
What sentence might have been imposed on him? If the sentence
that could have been imposed in India was found to be incompatible
with that of Mauritian law, as Raj claimed in his application to the
4th Respondent, should the Central Government through the 4th
Respondent have adapted his sentence to one consistent with
domestic law? Did the 4th Respondent correctly decide Raj's
application under Section 13(6) of the Repatriation Act, having
regard to the provisions of the NDPS Act?
19. The NDPS Act was amended by the Narcotic Drugs and
Psychotropic Substances (Amendment) Act 2001 ("the NDPS
Amending Act"). That amendment introduced a wholly new
scheme of 'graded sentences': the severity of the sentence was
linked, in direct proportion, to the quantity of prohibited substances
carried -- the greater the quantity, the more severe the sentence. To
this end, the amending act introduced definitions of "small
quantity" and "commercial quantity", meaning respectively,
quantities less than, and greater than, those notified. 10 Section 21
was entirely substituted. In prescribing the punishment for
contravention in relation to manufactured drugs and preparations, it
now follows this scheme of graded sentences. It has three sub-
sections. The first of these, sub-section (a), specifies the
punishment where the contravention involves a 'small quantity'.
The second, sub-section (b), relates to contraventions where the
quantity is less than a 'commercial quantity' but more than a 'small
Sections 2(xxiiia) and (viia) of the NDPS, respectively.
12 of 16
CRWP2428-13-F
quantity', and says that in such cases, the punishment may extend to
ten years and fine of upto Rs. 1 lakh. The third, sub-section (c),
deals with contraventions involving 'commercial quantities' and, in
such cases, the punishment is a minimum of 10 years and may
extend to 20 years; and the offender is also liable to a fine of not less
than Rs.1 lakh but which may extend to Rs.2 lakhs. The rationale
behind this structure is set out in the NDPS Amending Act's
Statement of Objects and Reasons. Simply put, instead of a flat,
uniform punishment irrespective of quantity, the new, more
granular approach seeks to reserve the most severe punishment for
drug traffickers while adopting a reformative approach toward
addicts and users. The unamended NDPS Act's strict bail
provisions were found to add to the misery of addicts and, therefore,
the sentence structure was rationalised.
20. In the present case, the 4th Respondent has applied Section
21(c), on the basis that the Petitioner was found to be in possession
of a commercial quantity of heroin, some 371.1 grams of the
substance. That heroin is an opium derivative under the NDPS Act
cannot be disputed.11 All opium derivatives are included in the
definition of "manufactured drug".12
21. The definitions of "small quantity" and "commercial
quantity" in the amended NDPS Act both refer to a quantities
specified by the Central Government in the Official Gazette. Heroin
Section 2(xvi)(d) and (e): "Opium derivative means-- ... ... (d)
diacetylmorphine, that is, the alkaloid also known as diamorphine or
heroin and its salts; and (e) all preparations containing more than 0.2%
of morphine or containing any diacetylmorphine."
Section 2(xi)(a)
13 of 16
CRWP2428-13-F
is item 56 of that Notification.13 For this entry, a "small quantity" is
5 gms, and a "commercial quantity" is 250 gms. Entry 239, which
relates to any mixture or preparation of the listed drugs with or
without any neutral material, has no specified small or commercial
quantities.
22. It is clear from this that the legislative intent in the NDPS
Amending Act in linking quantity to punishment is only meaningful
if the punishment is related to the actual content of the drug in the
mixture and not to the gross weight of the mixture. This is also clear
from the fact that Entry 239 in the Notification, which speaks of
such mixtures of drugs with other substances, makes no distinction
between small and commercial quantities, although the entries for
all other drugs notified do draw such a distinction. This necessarily
means that the purity of the drug in the mixture is a relevant
consideration; indeed, it is a determinant of the sentence. It cannot
be that 4 gms of heroin is a 'small quantity' but the same 4 gms
when mixed with 700 gms of a dilutant becomes a 'commercial
quantity'. That would render the distinct classifications in the
NDPS Act and in the Notification both entirely redundant. It is not
possible to read the NDPS Act and the Notification in this manner.
In E. Micheal Raj v Intelligence Officer, Narcotic Control Bureau,14 the
Supreme Court analysed the scheme of the NDPS Amending Act.
In terms, it held that when a narcotic drug or psychotropic
substance is mixed with a neutral substance, the quantity of that
neutral substance must be excluded while determining whether
Notification S.O. 1055(e) dated 19th October 2001, published in the
Gazette of India, Extra., Pt.II, Sec. 3(ii) dated 19th October 2001.
(2008) 5 SCC 161
14 of 16
CRWP2428-13-F
there is a small quantity or commercial quantity of the prohibited
drug or substance.
"It is only the actual content by weight of the narcotic drug
which is relevant for the purpose of determining whether it
would constitute a small quantity or commercial quantity.
The intention of the legislature for introduction of the
amendment as it appears to us is to punish the people
who commit less serious offences with less severe
punishment and those who commit grave crimes, such as
trafficking in significant quantities, with more severe
punishment."15
23. That Raj was in possession of 371.1 grams of heroin is
undisputed and, indeed, cannot now be questioned. But that
contraband had a 6% purity; this, too, is undisputed. This translates
to an effective quantity of 22.4 grams of heroin. What the 4th
Respondent seems to have done is to simply look at the gross weight
of the seized material and treated it as a commercial quantity,
thereby justifying a 20-year sentence. This is clearly incorrect. At
22.4 grams, the offence is covered by Section 21(b) of the NDPS
Act. The quantity seized from Raj is between the upper limit of a
"small quantity" (5 gms) and the lower limit of a commercial
quantity (250 gms). So read, the maximum sentence that could have
been handed down to Raj was ten years and no more. We clarify that
our reasoning is confined to the facts of this case and is not to affect
other cases under the NDPS Act.
24. There remains the question of the date from which Raj's
imprisonment is to be reckoned. This is now entirely irrelevant. If
his imprisonment is to be reckoned as starting from the date
E. Micheal Raj, supra, para 15; This is also the view taken in Ouseph v
State of Kerala, (2004) 4 SCC 446.
15 of 16
CRWP2428-13-F
mentioned in the records when he was repatriated, 8th January
1999, then he has been in prison for 14 years; if, on the other hand,
as he claims, the starting point is taken as the day when he first was
arrested, 1st May 1996, then he has already served over 17 years. In
either case, he has served more jail time than could have been
awarded to him under Section 21(b) of the NDPS Act.
25. There is, therefore, no manner of doubt in our minds that the
Petition must succeed. The 4th Respondent's order dated 29th June
2013 is quashed and set aside. The Respondents are directed to
forthwith release the Petitioner, Prem Kishore Raj, if his continued
imprisonment is not required in any other case. No order as to costs.
All concerned to act on an authenticated copy of this order.
(G.S. Patel, J.) (S.C. Dharmadhikari, J.)
16 of 16
