Transfer of narcotics convict from Sri Lanka to India: Madras High Court penalises MEA & MHA officials
The Madras High Court has directed two joint secretaries serving in the Ministry of External Affairs (MEA) and Ministry of Home Affairs (MHA) to jointly
The Madras High Court has directed two joint secretaries serving in the Ministry of External Affairs (MEA) and Ministry of Home Affairs (MHA) to jointly pay ₹50,000 to the High Court Legal Services Committee for not rendering effective assistance to the court in deciding a habeas corpus petition related to a narcotics case convict repatriated from Sri Lanka to India. A Division Bench of Justices Anita Sumanth and Sunder Mohan wrote: “Respondent 5 and Respondent 6 are put to terms and shall remit ₹50,000 to High Court Legal Services Committee within four weeks.” The judges also recorded their displeasure over a central government senior panel counsel not answering questions raised by the court despite grant of multiple adjournments. The habeas corpus petition had been filed by the son of Zahir Hussain who had been convicted by a Sri Lankan court on May 18, 2015. The court over there had sentenced him to life imprisonment for the offence of drug trafficking after he was found to be in possession of 720 grams of heroin.
Thereafter, he was repatriated to India for serving the sentence in a local prison here. The petitioner’s counsel M. Mohamed Saifulla brought it to the notice of the court that the convict had sought repatriation to India in terms of the ‘Agresement between the Government of the Republic of India and the Government of the Democratic Socialist Republic of Sri Lanka on the transfer of sentenced persons,’ a bilateral treaty signed by both the nations in 2010. He said, the request for repatriation was accepted by an order passed by the MHA on July 29, 2016. The order stated that the maximum punishment in India for possession of 720 grams of heroin was only 10 years of rigorous imprisonment under Section 21 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act of 1985 and therefore, the convict shall be incarcerated upto September 21, 2022. Saifulla complained that his client had not been released till date and urged the court to declare his continued detention since September 22, 2022 as illegal.
However, on going through the records, the judges said, there was no explanation as to why the incarceration had been ordered only up to 2022 when the 10 year sentence, even as per the Indian law, would have ended only in 2025. More importantly, the judges pointed out that Article 8(1) of the bilateral treaty clearly stated that the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. Hence, it would be normally required for the receiving State to enforce the sentence as awarded by the foreign court and in the present case, it was for life. Only Article 8(2) carved out an exception in a situation where the sentence imposed by the foreign court was, by its nature or duration or both, incompatible with the Indian law. In such circumstances, the competent authority had been permitted to obtain a court order or pass an administrative order adapting the sentence to one of punishment as prescribed by the Indian laws.
The BriefWire