ABU SALEM ABDUL KAYYUM ANSARI Versus THE STATE OF MAHARASHTRA
ABU SALEM ABDUL KAYYUM ANSARI Versus THE STATE OF MAHARASHTRA
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 679 OF 2015
ABU SALEM ABDUL KAYYUM ANSARI …Appellant
Versus
THE STATE OF MAHARASHTRA …Respondent
With
CRIMINAL APPEAL NO.180/2018
J U D G M E N T
SANJAY KISHAN KAUL, J.
1. Crime and punishment is something which has agitated the judicial
minds. Punishment cannot be disproportionately high or low. It should
not be oppressive, but should serve the purpose of deterrence against
crimes in a society along with a sense of justice to the victim and their
family. This is a delicate balance, which has to be kept in mind – an
1
aspect recently discussed in the judgment of this Court in Jaswinder
Singh (Dead) Through Legal Representative v. Navjot Singh Sidhu &
Ors.1 As was observed in the said case, the principle of just punishment
is the bedrock of sentencing in respect of a criminal offence. We are
faced with a somewhat similar scenario though with certain crucial
nuances, which have to be considered.
Facts :
2. Abu Salem Abdul Kayyum Ansari has a history – and not a
palatable one at all. He has been a part of the crime syndicate as is
obvious from the facts of the two criminal appeals before us. Criminal
Appeal No.679/2015 emanates from threatening a party in a civil dispute
relating to a property and extracting money, which under threat was
conceded by the litigating party, i.e., Jain brothers. On failure to make
the payment of some instalments of the threat money, one of the Jain
brothers, i.e., Pradeep Jain, was murdered on 07.03.1995. As a result the
crime was registered at D.N. Nagar Police Station under Sections 302,
307, 452, 506(ii) read with Section 120-B of the Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC’), read with Sections 5, 27 of the
12022 SCC OnLine SC 652
2
Arms Act, 1959 (hereinafter referred to as the ‘Arms Act’) read with
Sections 3(2)(i), 3(2)(ii), 3(5) and 5 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to as the ‘TADA’).
3. The second Criminal Appeal No.180/2018, deals with the factual
scenario where the very foundation of the civil society of our country
was threatened and disrupted by causing bomb explosions at vital
Government installations, public and crowded places in Mumbai and its
suburbs (commonly known as the ‘Bombay Bomb Blasts’). Loss of life
and loss of properties in enormous amount was the result. The appellant
was alleged to have stored, distributed and transported illegally smuggled
AK-56 rifles, hand grenades as well as boxes of magazines from the
godown in Gujarat to Mumbai in a Maruti van which had specially
crafted secret cavities and all this was done after conspiratorial meetings
relating to the blasts. In order to evade the penal consequences of his
actions, the appellant left Mumbai and later entered Portugal under an
assumed name on a Pakistani passport, which reflects from where the
conspiracy and support may have emanated.
4. The appellant could not be arrested for his crime having moved out
3
of the country during the course of the investigation and, thus, the
Designated Court, Mumbai issued Proclamation No.15777 of 1993
against him on 15.09.1993. As the appellant did not appear before the
court, he was declared as a proclaimed offender on 15.10.1993. He was
shown as an absconder in the chargesheet dated 04.11.1993. Thereafter,
common charge of conspiracy was framed by the Designated Court,
Mumbai against all the accused persons on 10.04.1995. The Designated
Court, Mumbai issued a non-bailable warrant against the appellant and
Interpol Secretariat General, Lyons, France also issued a Red Corner
notice for his arrest on 18.09.2002.
Detention in Republic of Portugal:
5. The appellant having travelled on a fake passport to the Republic
of Portugal was charged with the same and convicted and sentenced on
18.09.2002. The said sentence would have been completed on
18.03.2007 without taking into consideration any remission or
commutation or conditional release. The fact remains that the appellant
served the sentence from 18.09.2002 to 12.10.2005 when he was granted
conditional release for the remaining sentence.
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6. It is during this period of detention that on 18.09.2002, the
appellant was also formally detained (already in custody) by the
Portuguese Police in Lisbon on the basis of the Red Corner notice. To
complete the period of detention, he was again imprisoned from
12.10.2005 till 10.11.2005 for a month when he was handed over to the
Indian authorities.
Extradition request and Sovereign assurance by the Government of India:
7. The Government of India through Mr. Omar Abdullah, who was
the then Minister of State for External Affairs, submitted a requisition for
extradition dated 13.12.2002 to Portugal in nine criminal cases relying on
the International Convention for the Suppression of Terrorist Bombings
and on an assurance of reciprocity as applicable in international law.
Along with the requisition, relevant facts of the cases were enclosed in
the form of duly sworn affidavits of the concerned police officers along
with supporting documents. Subsequently, the Government of India
issued a notification under Section 3(1) of the Extradition Act, 1962
(hereinafter referred to as the ‘Extradition Act’) applying the provisions
of the Extradition Act to Portugal with effect from 13.12.2002.
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8. The Government of India further gave a solemn sovereign
assurance on 17.12.2002 through the then Deputy Prime Minister, Shri
L.K. Advani, to the effect that the Government will exercise its powers
conferred by the Indian laws to ensure that if extradited by Portugal for
trial in India, the appellant would not be visited by death penalty or
imprisonment for a term beyond 25 years. The assurance reproduced
Section 34C of the Extradition Act mandating that in case of extradition
of a fugitive criminal involved in the commission of offences punishable
with death in India, on his surrender, he shall not be liable for death
penalty and shall be liable for punishment of life imprisonment in place
of death penalty, for the said offence. The sovereign assurance also
referred to Article 72(1) of the Constitution of India (hereinafter referred
to as the ‘Constitution’) to emphasise that the President of India has
power to grant pardon, reprieve, respite, or remit punishment or suspend,
remit or commute the sentence of any person convicted of any offence.
Lastly, the assurance also mentioned that Sections 432 and 433 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as the
‘Cr.P.C.), which confer power on the Government to commute the
sentence of life imprisonment to a term not exceeding 14 years. In a
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way, the relevant constitutional and legal provisions were brought to the
notice of Portugal to give them confidence that there were provisions in
India which would ensure that the commitments given would be adhered
to.
9. The Ministry of Justice, Portugal by its order dated 28.03.2003,
admitted the appellant’s extradition for offences such as, inter alia,
Section 120-B read with Section 302 of the IPC and Section 3(2) of the
TADA. The ministerial order, however, declined extradition for offences
such as Sections 201, 212, 324, 326, and 427 of the IPC, Sections 3(4), 5
and 6 of the TADA, Sections 4 and 5 of the Explosive Substances Act,
1908 (hereinafter referred to the ‘Explosive Substances Act’), Section 9-
B of the Explosive Act, 1984 and Sections 25(1-A) and (1-B) of the Arms
Act.
10. The Ambassador of India in Lisbon gave another solemn assurance
on 25.05.2003 that if the appellant is extradited, then:
i. he will not be prosecuted for offences other than those for
which the extradition was sought, and
ii. he will not be extradited to any third country.
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11. The appellant preferred an appeal against the aforesaid ministerial
order dated 28.03.2003 before the Court of Appeal, Lisbon and the said
Court vide order dated 14.07.2004 allowed the appellant’s extradition for
offences mentioned in the request, except those which are punishable
with death or life imprisonment. The Supreme Court of Portugal
confirmed the aforesaid order of the Court of Appeal, Lisbon on
27.01.2005 in view of the assurance given by the Government of India
that the person extradited would not be visited with death penalty or
imprisonment for a term beyond 25 years. The Courts in Portugal
granted extradition for the following offences:
S.No. Offence Maximum
Punishment
i. The offence of criminal conspiracy
punishable under Section 120-B IPC
Death penalty in the
present case
ii. Murder punishable under Section 302
IPC
Death Penalty
iii. Attempt to murder punishable under
Section 307 IPC
Imprisonment for life
iv. Mischief punishable under Section 435
IPC
Imprisonment for 7
years
v. Mischief by fire or explosive punishable
under Section 436 IPC
Imprisonment for life
vi. Offence punishable under Section 3(2) of
the TADA Act
Death penalty in this
case
vii. Offence punishable under Section 3(3) of
the TADA Act
Life Imprisonment
viii. Offence punishable under Section 3 of
the Explosive Substances Act, 1908
Life Imprisonment
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ix. Offence punishable under Section 4 of
the Prevention of Damage to Public
Property Act
Imprisonment for 10
years
The Supreme Court of Portugal while emphasising on the “principle of
speciality” stated that it cannot be suspected that the appellant will be
subjected to trial for committing offences not included in the extradition
request.
12. The consequence of the failure of the Indian Government to fulfil
its undertaking to impose a sentence as submitted in its assurance was
clearly specified in the aforesaid order dated 27.01.2005, i.e., Portugal
either officiously or upon the interested party’s request, could timely
demand devolution of the appellant. The Court specifically observed in
para 12.2 of its judgment that the Government of India cannot guarantee
that the sentence as assured by the Government of India will be applied
by the Courts in India, in view of the Indian judicial system where the
Courts are independent of the Executive. Hence, the Court stated that it
could only request a guarantee that should such sentence be imposed, in
order to restrict the sentence, it will resort to all legal measures available,
the description of which had already been set out in the request letter. On
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13.06.2005, the appellant’s appeal against this order dated 27.01.2005
was rejected by the Constitutional Court of Portugal.
13. The custody of the appellant was handed over to the Indian
authorities on 10.11.2005, the appellant was extradited to India from
Portugal on 11.11.2005 and was arrested on 24.11.2005. On 09.12.2005,
the Designated Court, Mumbai altered the common charge of criminal
conspiracy by adding the appellant’s name in the list of the accused
persons before the court, by deleting his name from the list of absconding
accused in the said charge. That brought to an end the saga of ensuring
that the appellant is brought back to India and is tried and sentenced for
what he had done.
History of Proceedings:
14. It is not necessary in view of the limited pleas urged and examined
in this case to get into a further detailed examination of facts and
evidence. Suffice to say that by Criminal Appeal No. 990 of 2006, the
appellant first assailed the order dated 13.06.2006 of the Designated
Court, Mumbai, which had separated the trial of the appellant from the
main trial as well as a prior order dated 18.03.2006 of the Designated
10
Court, Mumbai, where substantive charges were framed against the
appellant for different offences relating to the IPC and TADA. In
addition, Criminal Appeals Nos. 1142-1143 of 2007 were filed against
the order framing charges dated 16.04.2007. A writ petition was also filed
seeking quashing of charges and proceedings against him on the ground
that the trial for offences for which he has specifically not been
extradited is violative of the fundamental rights enshrined under Article
21 of the Constitution. This was coupled with the appellant moving an
application before the Court of Appeal, Lisbon which was predicated on
the violation of the assurance given by India as he was sought to be tried
in India in violation of “principle of speciality”.
15. The Court of Appeal in Lisbon passed an order dated 18.05.2007
while opining that it did not have the competence to order the devolution
of the appellant, observed that if the alleged violations were confirmed, it
could only justify the accountability of the State (India in this case) at an
international level, which does not depend on the action of any
Portuguese Court and adequate use of defence by the appellant under
Indian laws. On appeal to the Supreme Court of Portugal, the matter was
remitted to the Court of Appeal, Lisbon by an order dated 13.12.2007 to
11
enquire whether violation of the “principle of speciality” had taken place.
It further opined that if any violation did take place, the Court of Appeal,
Lisbon would extract all due consequences such as declaring the
termination of the authorisation for extradition, in which case the
presence of the appellant in India would have to be considered illegal.
However, the Court of Appeals, Lisbon considered it appropriate to defer
consideration of the matter till the Supreme Court of India passed a final
order in the aforementioned appeals and the writ petition. The Supreme
Court of India passed a common order dated 10.09.2010 with respect to
the aforementioned appeals and the writ petition and observed that
Portugal had not included certain offences for which charges had been
framed against the appellant by the Designated Court, Mumbai.
However, it opined that a bare reading of Section 21 of the Extradition
Act indicated that the appellant could be tried for lesser offences, in
addition to the offences for which he had been extradited. These charges
made in addition were punishable with lesser punishment than the
offence for which he had been extradited and, thus, these lesser offences
could not be equated with the term “minor offence” as mentioned in
Section 222 of the Cr.P.C. The opinion given was that there had been no
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violation of the “principle of speciality” and the solemn sovereign
assurance given by the Government of India in the letter by the Indian
Ambassador dated 25.05.2003.
16. On the aforesaid opinion being delivered of the Supreme Court of
India, the Court of Appeal, Lisbon in its order dated 14.09.2011 held that
the authorisation granted for the appellant’s extradition ought to be
terminated. It was also held that while not considering the limits
imposed by Portugal on the appellant’s extradition, India had violated the
“principle of speciality”. If the extradition for certain crimes was not
admissible in the ministerial order dated 28.03.2003 due to lapses of the
criminal cases, then India could not impute and try the appellant for
identical crimes at a subsequent time, even if it is well founded on
different facts. The Court further opined that Law 144/99 of 31 August
does not anticipate any specific consequences for violation of “principle
of speciality”, however, this did not prevent Portugal from calling for
intervention of instances of international jurisdiction, drawing due
political conclusions from the case, and reacting through politicaldiplomatic channels, for which the judgment passed by the Portuguese
Courts would be relevant. However, crime punishable under Section 3(3)
13
of the TADA had not been expressly or implicitly excluded by Portugal
in the appellant’s extradition and, thus, the same could be imputed on the
appellant without violation of “principle of speciality” laid down in
Article 16 of Law 144/99 of 31 August, which reads as under:
“Article 16 – Rule of Speciality
1. The person who, as a consequence ofan act of international
cooperation appears in Portugal to participate in a penal
procedure as a suspect, defendant or convicted person cannot
be prosecuted, tried, detained or subjected to any other
restriction of his freedom for a fact prior to his presence on
national territory, other than the one which gives rise to the
request for cooperation formulated by a Portuguese authority.
2. The person who, under the terms of the number above,
appears before a foreign authority cannot be prosecuted,
detained or tried or subjected to any other restriction of his
freedom for a fact or conviction prior to his leaving the
Portuguese territory other than those determined in the request
for cooperation.
3. Before the transfer referred to in the number above is
authorised, the State that formulates the request must provide
the assurance required for the compliance with the rule of
speciality.
4. The immunity referred to in this article ceases whenever:
a. the person under consideration has the possibility of
leaving the Portuguese or foreign territory and does not do
so within 45 days; or
b. He voluntarily returns to one of those territories;
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c. After earlier hearing the suspect, defendant or the
convicted person, the State that authorises the transfer gives
consent for the derogation of the rule of speciality.
5. The provisions of numbers 1 and 2 do not exclude the
possibility of requesting by means of a new request for the
extension of the cooperation to facts other than those that laid
the foundation for the previous one, a request which will be
submitted and prepared under the terms of this legal statute.
6. In the case referred to in the number above, the submission
of proceedings containing the declarations of the person who
benefits from the rule of speciality is mandatory.
7. In the event of the request being submitted to a foreign State,
the cases referred to in the number above, are drawn up by the
High Court situated in the place where the person who benefits
from the rule of speciality resides or is present.”
17. The Union of India filed an appeal before the Supreme Court of
Portugal, which was dismissed on 11.01.2012 as the Court observed that
the non-observance of the “principle of speciality” requires two orders of
consequences in the ambit of international relations – first, the mistrust
on a State that does not have a credible and reliable behaviour in its
international relations, and second, a discredit of the judicial power that
is used by the institution of extradition in duplicity manner, generating
doubts on the administration of justice. A further appeal before the
Constitutional Court of Portugal was also dismissed on 05.07.2012 and,
15
thus, the termination of appellant’s extradition attained finality. There
rests the story of the extradition proceedings in Portugal.
18. However, the appellant filed Criminal Appeal Nos. 415-416 of
2012 before the Supreme Court of India challenging the order of the
Designated Court, Mumbai dated 08.11.2011, which had dismissed the
applications filed by the appellant for stay of all further proceedings in
view of the order dated 14.09.2011 passed by the Court of Appeals,
Lisbon treating the extradition order dated 28.03.2003 as having been
withdrawn. The abovementioned appeals were still pending when the
Central Bureau of Investigation (for short ‘CBI’) filed an application for
clarification/modification of the judgment and order dated 10.09.2010 of
the Supreme Court of India and prayed for permission to withdraw
certain charges levelled against the appellant. It was the submission of
the CBI that in the interest of comity of courts and united fight at
international level against global terrorism, the Government of India was
making further efforts through diplomatic talks and the additional
charges framed against the appellant might come as an impediment in
furthering such diplomatic talks. The application of the CBI was allowed
by the Supreme Court of India in terms of its order dated 05.08.2013 to
16
the extent of withdrawal of additional charges under Sections 3(3), 5 and
6 of the TADA, Sections 4(b) and 5 of the Explosive Substances Act,
Sections 25(1-A), (1-B)(a) read with Section 387 of the Arms Act, as
well as Section 9-B of the Explosives Act, 1884. The Court observed
that the offences for which the appellant was extradited to India are grave
enough to award the appellant with maximum punishment and, therefore,
it would not be detrimental to any of the parties. This Court also held
that the ministerial order dated 28.03.2003 stands valid and effective in
the eyes of law and that the Portugal Courts had categorically stated that
the Portuguese law does not provide for any specific consequence for
violation of the “principle of speciality”. Thus, the findings of the
Portugal Courts may not be construed as a direction to the Union of India
to return the appellant to Portugal but shall serve as a legal basis for the
Government of Portugal to seek return of the appellant through political
or diplomatic channels, which had not been done till that date according
to the then learned Attorney General. The Court also recorded the then
Attorney General’s assurance that they were in the process of
withdrawing other charges pending in various States against the
appellant, which were claimed to be in violation of the extradition order.
17
Thus, what the Government of India sought to do was to bring the legal
process fully in conformity with the extradition order of Portugal albeit
belatedly and the consequences of the termination of the appellant’s
extradition attained finality. This showed that the Government of India
was conscious of its sovereign assurance and sought to do everything to
abide by its assurance at that stage.
Trial Court Proceedings:
A. Sovereign Assurance:
19. The State initially pressed for awarding death sentence to the
appellant in Special Case No.1/2006. However, after the arguments of
the defence, the State submitted that death penalty is out of question in
the appellant’s case but in view of Section 34C of the Extradition Act and
Section 302 of the IPC, the appellant was liable to be punished with
imprisonment for life. It was urged that the solemn sovereign assurance
given by the Deputy Prime Ministry of India could not be construed as a
guarantee that no court in India would award the punishment provided by
Indian law and the same would, thus, come into play after awarding the
punishment by the Designated Court, Mumbai.
18
20. On the other hand, the appellant sought to urge that the solemn
sovereign assurance given to Portugal was construed as an undertaking
that no court in India shall award punishment of death or punishment for
a period of more than 25 years and a paramount duty had been cast upon
the Designated Court, Mumbai to enforce the solemn sovereign
assurance while awarding the punishment. While conceding that Section
34C of the Extradition Act, Section 302 of the IPC and Section 3(2)(i) of
the TADA are mandatory in character, the plea was that the hands of the
Designated Court, Mumbai are tied from awarding punishment for more
than 25 years.
21. The Designated Court, Mumbai examined the aforesaid
submissions and expressed concerns about serious repercussions if a
decision was taken contrary to the letter and spirit of Indian law. At the
same time, the spirit of the solemn sovereign assurance given by the
Deputy Prime Minister of India and understood by the Supreme Court of
Justice, Portugal in its judgment dated 27.01.2005 could not be lost sight
of as in substance, the principles of comity of courts and respect for
Indian Government and law was in issue. Section 34C of the Extradition
Act mentioned in the sovereign assurance made it clear that no court in
19
India was empowered in the appellant’s extradition to award death
sentence to him and that he could only be liable for life imprisonment.
The objective of incorporating Article 72 of the Constitution and Sections
432 and 433 of the Cr.P.C. was to assure that the Union of India would
ensure that while executing the sentence or punishment imposed by the
Court in India, the Union of India would exercise its powers and bring
down the punishment consistent with the solemn sovereign assurance
given to the Government of Portugal.
22. The trial court opined that the sovereign assurance was a plain and
simple assurance that death penalty was out of question and if any other
punishment was awarded as per law by Indian Courts, the Government of
India would exercise the powers under the Constitution, Indian
Extradition Act and the Cr.P.C. to bring the punishment in conformity
with the assurance. The Government of India was conscious of the
principle of the independence of the Judiciary. The sovereign assurance
could not have been construed as an assurance of the Courts of India and,
in fact, had not been so construed by the Courts at Portugal. The
independence of Judiciary would not support impeding the powers of the
Designated Court, Mumbai to exercise its jurisdiction to award
20
punishment provided under the law. This is so as the application in
awarding the punishment fell within the domain and jurisdiction of the
court, whereas the execution of the punishment fell within the domain
and jurisdiction of the executive and this power of the executive was
independent and not subject to judicial review.
23. The effect of the aforesaid was that the Judiciary had to perform its
functions of imposing sentence in accordance with law, while the
executive would have to perform its duty by restricting the sentence in
conformity with the assurance given to the Portuguese Courts.
B. Set off claimed by the Appellant:
24. The appellant relied upon the decision of this Court in State of
Maharashtra & Anr . v. Najakat Ali Mubarak Ali2
and submitted that as
per Section 428 of the Cr.P.C., the period of imprisonment undergone by
an accused as an undertrial prisoner during investigation, inquiry or trial
of a particular case, irrespective of whether it was in connection to that
very case, or another case can be set-off for the period of detention
imposed on conviction in that particular case. The appellant, thus,
submitted that he was entitled to the benefit of set off as he was already
2(2001) 6 SCC 311
21
in custody for a time period in Portugal.
25. On this aspect, the Designated Court, Mumbai opined that the
appellant was not kept in detention till 12.10.2005 exclusively pursuant
to the execution of the Red Corner notice by the Interpol and, thus, could
not be granted set off for the period for which he was undergoing the
sentence awarded to him by the Portuguese Court against the sentence
awarded to him in the present case. A set off would amount to granting
benefit to the appellant even for the period for which he was sentenced
for commission of offences as per Portuguese law in the Republic of
Portugal.
26. The judgment in Allan John Waters v. State of Maharashtra
&Anr.3
sought to be relied upon by the appellant was distinguished as in
that case the accused was not arrested in USA for commission of offence
under the laws of USA while in the present case it was so. The
proposition of law in Najakat Ali Mubarak Ali4
case was also found not
applicable. The appellant was arrested on 11.11.2005 and was arrested in
TADA Special Case No.1/2006 later, where the benefit of set off had
32012 SCCOnline Bom 389
4(supra)
22
been granted to him. The appellant would, thus, have the benefit of set
off from that date against the sentence that would be imposed on him.
27. The Designated Court, Mumbai convicted the appellant and
sentenced him under the different provisions of law as reflected in the
judgment, which need not be referred to by us because that does not have
a bearing on the propositions advanced before us.
The Present Proceedings:
28. The appeal was taken up for hearing on 02.02.2022, when the
learned counsel for the appellant, Mr. Rishi Malhotra made a four-fold
submission recorded in that order as under:
“1) The stand of the Government of India/State Government
(three appeals have been prosecuted by the State while two
other by the C.B.I.) vis-à-vis the solemn sovereign assurance
given by them to the Court in Portugal while seeking
extradition of the appellant (on 17.12.2002 and 25.05.2003). In
a nutshell it is his submission that the imprisonment term
cannot extend beyond 25 years as per the assurance given, even
though the TADA Courts said it was not bound by the
assurances as the judicial system was independent of the
executive. He submits that even if the TADA Court does not
have the power, this Court can pass necessary orders based on
an affidavit to be filed by the Central Government/prosecuting
agencies. Learned counsel for the State submits that by and
large they will follow the guidance of the Central Government
in this behalf but we believe in any case the Central
Government/prosecuting agencies may discuss this issue with
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the State Government to file an appropriate affidavit before us.
2) The period of set-off, as according to the learned counsel for
the appellant(s) he was detained on 18.09.2002 by the Portugal
authorities on account of the look out notice, that should be the
reckoning time and not when he was released from the Portugal
Court and taken into custody by the Indian authorities on
12.10.2005.
3) The consequences of Portugal Courts withdrawing the
permission for extradition on account of breach of the solemn
sovereign assurance given to them.
4) The Merits of the controversy.”
29. He made a submission, which was recorded, that it may be
possible to resolve these appeals if a reasonable stand is taken at least on
the first aspect and on the second aspect, also the authorities might take a
stand or in the alternative he would endeavour to persuade the Court. We
found that a fair stand was taken by the counsel and called upon the
Union of India to take a stand on both these aspects. However, the
affidavit filed was not found to be satisfactory. We wanted a clear stand
on behalf of the Government of India as to whether it stood by the
international commitment made by the former Deputy Prime Minister of
India and, thus, called upon the Home Secretary to file an affidavit in the
case.
24
30. On 21.04.2022, we recorded a detailed order. We went into the
affidavit filed by the Home Secretary, who had emphasised what was
only obvious, that it was a dastardly act conducted with pre-meditation in
which the appellant played a very active role, was absconding and
brought back to India under the Extradition Act. These powers were
stated to be Executive powers which would bind the Executive of the
respective States but the Judiciary, as the Constitution of India envisaged
was independent in deciding the cases in accordance with the law
applicable. Para 6 of that affidavit referred to the assurance given vide
letter dated 17.02.2002 as solemn assurance to the Government of
Portugal by the Government of India, while para 7 stated as under:
“It is respectfully submitted that the Government of India is bound
by the assurance dated 17.12.2002.The period of 25 years which is
mentioned in the assurance will be abided by the Union of India at
an appropriate time subject to the remedies which may be
available.”
31. We did not appreciate the underlined portion aforesaid as once it
was recognised that the Government would abide by the assurance,
nothing more or less was to be said. As far as the courts were concerned,
they were to take a view as to the effect of that assurance.
25
32. The affidavit also averred that the occasion for the Union of India
honouring the assurance will arise only when period of 25 years was to
expire. We noted that we had to take a call on the effect of that assurance
and we could not postpone the hearing of the appeal on that basis, nor
was it permissible for the Government to say on an affidavit that the
appellant could not raise this argument. In effect, the affidavit sought to
urge this Court to decide the appeal on merits. As to what the Court will
do will be the Court’s own call. If the convict was accepting his guilt, he
could not be compelled to urge on the merits of the appeal. Learned
counsel for the appellant on that date also clearly stated that his third and
fourth pleas recorded aforesaid stood withdrawn. In view of the
assurance of the Government of India, he only sought that the sentence
should be 25 years in terms of the solemn assurance. The other point
sought to be urged and debated before us is the point of set off. The
appeal was finally heard on 05.05.2022 and judgment was reserved.
Legal Pleas urged before us:
33. The matter remained in a narrow contour in view of what we have
recorded aforesaid, i.e., on the two aspects of sovereign assurance and set
26
off.
Plea of Sovereign Assurance:
34. The appellant submitted that solemn sovereign assurance dated
17.12.2002 categorically mentioned that under Portuguese law, an
offender cannot be extradited to the requesting country if the offences
committed attract either death penalty or imprisonment for an indefinite
period beyond 25 years. The supplementary assurance dated 25.05.2003
envisaged that the appellant will not be prosecuted for offences other
than those for which extradition had been sought. The affidavit
submitted by the Home Secretary, Government of India dated 18.04.2022
also stated that the Government of India was bound by its assurance.
These solemn assurances were considered by the Court of Appeals,
Lisbon in its judgment dated 14.07.2004 and the Supreme Court of
Justice, Portugal in its judgment dated 27.01.2005. It was opined that the
rule of traditional estoppel doctrine as well as International Public Law
(for instance, with respect to principle of reciprocity) required that the
solemn sovereign guarantees provided by sovereign States are respected
in future. The consequence of failure to do so gave Portugal the right to
timely demand devolution of the person to be extradited through
27
diplomatic or judicial channel.
35. The aforesaid aspect has been kept in mind by the Designated
Court, Mumbai in its main judgment dated 07.09.2017, wherein it opined
that India would ensure that while executing the sentence or punishment
imposed by the court in India, it would exercise its power and bring
down the punishment consistent and commensurate with the solemn
sovereign assurance.
36. The only real submission in this behalf by the learned counsel for
the appellant was that in view of the Constitution Bench decision of this
Court in Union of India v. V. Sriharan alias Murugan & Ors.5
it had
been opined that the powers to impose a modified punishment providing
for any specific term of incarceration lies only either with the High Court
or the Supreme Court, and not any inferior court. Thus, what the counsel
urged was that this Court should opine now itself as to when the term
would end and direct the release of the appellant on expiry of that term.
37. On the other hand, learned ASG, Mr. K.M. Nataraj urged that in
the Constitutional Scheme of India, there was a doctrine of separation of
52016 (7) SCC 1 (paras 104 & 105)
28
powers with the Judiciary being independent and, thus, the solemn
sovereign assurance given by the Executive was carefully worded such
that it could not bind the Judiciary while deciding the case on merits.
The Extradition Act enabled the Executive of one State to extradite
accused/convicts of another State. These were Executive powers, by only
the Executive of the respective States were bound.
38. It was sought to be urged that honouring the period of 25 years
mentioned in the assurance will arise only when the 25 years were to
expire, i.e., on 10.11.2030 and that the Union of India would abide by the
period of 25 years at an appropriate time subject to remedies, which may
be available and that such a plea cannot be raised as an argument before
the period elapses.
39. We tend to agree with the submissions of the learned ASG on the
larger conspectus, i.e., the separation of Judicial and Executive powers
and the scheme of the Indian Constitution cannot bind the Indian courts
in proceedings under the Extradition Act. Thus, the courts must proceed
in accordance with law and impose the sentence as the law of the land
requires, while simultaneously the Executive is bound to comply with its
29
international obligations under the Extradition Act as also on the
principle of comity of courts, which forms the basis of the extradition. A
reference to the solemn sovereign assurance on 17.12.2002 itself makes it
clear that the assurance, which was given on behalf of the Executive in
India was that if the appellant was extradited by Portugal for trial in
India, he would not be visited with death penalty or imprisonment for a
term beyond 25 years. To achieve this objective the methodology placed
before the Portugal Courts was that Article 72(1) of the Constitution
conferred power on the President of India to grant pardon, reprieve,
respite or remit punishment or suspend, remit or commute the sentence of
any convict person convicted of any offence. This was with the
assurance under Sections 432 and 433 of the Cr.P.C. which conferred the
power on the Government to commute the sentence to life imprisonment
with terms not exceeding 14 years. It is also the subsequent solemn
assurance of the Ambassador of India given on 25.05.2003 that on the
appellant being extradited, he will not be prosecuted for offences other
than those for which the extradition was sought and he will not be
extradited to any third country. Insofar as the latter assurance is
concerned, it is nobody’s subsisting case that there is a violation or there
30
can at all be a violation. As far as the first assurance is concerned, there
was some ostensible deviation from it, but the ultimate affidavit in the
earlier proceedings before the Supreme Court sought to correct it by
limiting the trial to the offences for which he was extradited. That is the
reason that the challenge to the extradition proceedings on account of
extradition order being recalled by Portugal Courts was given up before
us. No doubt those proceedings attained finality before the Portugal
Courts but it is subsequently in the earlier proceedings before the
Supreme Court of India that the Government of India possibly realising
the larger consequences, sought to bring it within the conformity with the
order of the Portugal Courts.
40. A significant aspect is that the Courts in Portugal realised the
constraints of the extent to which the Government of India could give an
undertaking considering that the courts in India were independent of
Executive control. Thus, it was opined in para 12.2 of the judgment of
the Supreme Court of Portugal dated 27.01.2005 that what could be
requested was only a guarantee by the Government of India that should a
sentence be imposed higher than that is specified, the Government of
India would take all measures to comply with its obligations. As to how
31
the obligations were to be complied with, was also specified by the
Government of India in the solemn sovereign assurance dated
17.12.2002, in view of the powers of the President of India under Article
72(1) of the Constitution. The President acts under the aid and advice of
the Government of India under the provisions of Article 74 of the
Constitution and, thus, the Government of India bound itself to advice
the President of India to commute the sentence to 25 years in view of its
commitment to the Courts in Portugal. The sovereign assurance also
mentioned Sections 432 and 433 of the Cr.P.C., by which the
Government could itself suspend or remit, and commute the sentence
respectively.
41. We do believe that looking into the grievousness of the offence in
which the appellant was involved, there is no question for this Court
exercising any special privileges to commute or restrict the period of
sentence of the appellant. In fact, different States in India have followed
different patterns before even a case for remission is considered. We,
thus, do not accept that the plea of the learned counsel for the appellant
based on the judgment of this Court in Sriharan6
case.
6(supra)
32
42. However, we are in agreement with the submissions of the learned
counsel for the appellant and do not accept the contention of the learned
ASG that we should not opine on this aspect at present. The affidavit of
the Union of India through the Home Secretary is clear, at least, to the
effect that they will abide by the assurance given by the Government of
India to Portugal. Thus, on completion of the period of 25 years of
sentence, in compliance of its commitment to the courts in Portugal, it is
required that the Government of India advise the President of India to
exercise its powers under Article 72(1) of the Constitution to commute
the remaining sentence, or that the Government of India exercise powers
under Sections 432 and 433 of the Cr.P.C. We do believe that there is a
necessity of making this time bound so that it does not result in an
unending exercise and, thus, the Government of India must exercise the
aforesaid powers or render advice on which the President of India is
expected to act, within a month of the period of completion of sentence.
We say so also to respect the very basis on which the Courts of Portugal
observed the principles of comity of courts by recognising that there is a
separation of powers in India and, thus, the Courts cannot give any
assurance. The corresponding principle of comity of courts, thus, has to
33
be observed such that the Government of India having given the solemn
assurance, and having accepted the same before us, is bound to act in
terms of the aforesaid. We are, thus, taking a call on this issue now and
do not want to leave it to any uncertainty in future. This is of course
subject to any aggravating aspect of the appellant.
Plea of Set off:
43. The appellant was arrested on 18.09.2002 on the basis of the Red
Corner notice. Thereafter, the appellant’s extradition proceedings started
on 28.03.2003. The Designated Court, Mumbai did not give benefit of
any set off from 18.09.2002 till 12.10.2005.
44. Learned counsel for the appellant urged that as per Section 428 of
the Cr.P.C., an accused person is entitled to set off for the period of
detention undergone by him during any investigation or inquiry and such
period would be set off against the remainder of the sentence. It was also
urged that it is immaterial that the appellant was in custody for some
other case in Portugal and was also serving a sentence there, as it is not
the requirement of law that an accused has to be only in exclusive
custody of that particular case for which the set off is claimed. To
34
support this proposition learned counsel for the appellant relied upon the
following judicial pronouncements:
i. Allan John Waters7
: The petitioner therein was arrested
in pursuance of a Red Corner notice on 02.07.2003 and
remained in custody till 06.09.2004. The extradition
procedure had commenced in America and the competent
court had allowed the extradition to India on 24.11.2003
though the petitioner was finally brought to India only on
06.09.2004. The Bombay High Court vide its judgment
dated 13.03.2012 referred to Section 2(h) of Cr.P.C.,
which defines ‘investigation’ and held that all
proceedings for collection of evidence etc., is
investigation, and hence the proceedings adopted by the
investigating officer for seeking arrest was also part of
the investigation. Hence, the detention in America of the
appellant in that case was his detention during
investigation.
7(supra)
35
ii. Najakat Ali Mubarak Ali8
: This court observed that
Sections 427 and 428 of the Cr.P.C. are intended to
provide amelioration to the prisoner. Under Section 427
of the Cr.P.C., the sentence of life imprisonment imposed
on the same person in two different convictions would
converge into one and thereafter it would flow through
one stream alone. Even if the sentence in one of those
two cases is not imprisonment for life, but only a lesser
term, the convergence will take place and postconvergence flow would be through the same channel.
In all other cases, it is left to the court to decide whether
the sentences in two different convictions should merge
into one period or not. Under Section 428 of the Cr.P.C.,
if the convict was in prison, for whatever reason, during
the stages of investigation, inquiry or trial of a particular
case and was later convicted and sentenced to any term
of imprisonment in that case, the earlier period of
detention undergone by him should be counted as part of
the sentence imposed on him and it is immaterial if the
8(supra)
36
prisoner was undergoing a sentence of imprisonment in
another case also during the said period.
iii. Bhagirath v. Delhi Administration9
: The Constitution
Bench held that the assumption that the word “term”
under Section 428 of Cr.P.C. implies a concept of
ascertainability, or conveys a sense of certainty is
contrary to the letter of law and hence the period of
detention undergone by the accused as undertrial
prisoners shall be set off against the sentence of life
imprisonment imposed on them.
45. The nutshell of the submission was that the set off period should
commence from 18.09.2002 when the appellant was arrested pursuant to
the Red Corner notice, or at worst from 28.03.2003, i.e., the date of the
ministerial order when extradition was granted to the appellant for
various offences.
46. On the other hand, learned ASG referred to the fact that the
appellant was convicted by the Courts in Portugal for an offence
committed in Portugal and was serving a sentence which cannot be for
9(1985) 2 SCC 580
37
the appellant’s benefit for purposes of Section 428 of the Cr.P.C. The
period undergone by the appellant then was not as an undertrial prisoner
as in the present case. In any case, assuming that the Union of India is
bound by its assurance, the period would start only from the date the
appellantwas handed over to the Indian authorities, i.e., 10.11.2005.
47. Learned ASG also submitted that the convicts sentenced to life
imprisonment are liable to undergo imprisonment for the rest of their
normal life, subject to power under Sections 432 and433 of the Cr.P.C.,
or Article 72 or 161 of the Constitution and Section 428 of the Cr.P.C.
will be attracted only if and when such power is exercised. Thus, Section
428 of the Cr.P.C. applies to a specified term, and not the whole life of
the accused as there is no purpose of setting off a few years from the
punishment of life imprisonment. However, no order under Sections 432
and433 of the Cr.P.C., Article 72 or 161 of the Constitution has been
passed in the present case so far and as such Section 428of the Cr.P.C.
has no application.
48. Learned ASG sought to rely upon the judgment of this Court in
38
Raghbir Singh v. State of Haryana10, wherein it was held that to secure
the benefit of Section 428 of the Cr.P.C., the prisoner should show that he
had been detained in prison for the purpose of investigation, inquiry or
trial of the case in which he is later on convicted and sentenced. The
Court also held that an accused cannot claim a double benefit under
Section 428 of the Cr.P.C., i.e., the same period being counted as part of
the period of imprisonment imposed for committing the former offence
and also being set off against the period of imprisonment imposed for
committing the latter offence as well. This view was also followed in
Atul Manubhai Parek v. CBI11
.
49. In the context of the judgment of this Court in Najakat Ali
Mubarak Ali12 case, it was submitted by learned ASG that the judgment
in Raghbir Singh13 case was considered, but not overruled. It was urged
before us that there is apparently a misreading of the opinion of Justice
Phukan as it aligned with the dissenting opinion of Justice R.P. Sethi and
did not concur with Justice K.T. Thomas’s opinion, which had opined
that any other period, which is not connected with a case cannot be said
10(1984) 4 SCC 348
11(2010) 1 SCC 603
12(supra)
13(supra)
39
to be reckonable for set off. It was submitted that these judgments have
also been mentioned in Atul Manubhai Parek14 case but the Court has
followed the view taken in Raghbir Singh15 case.
50. On examination of the submissions, we are unable to concur with
the view sought to be propounded by learned counsel for the appellant. It
cannot be lost sight that when reference is made in a set off for
adjustment of periods, the reference is to proceedings within the country.
The criminal law of the land does not have any extra-territorial
application. Thus, what happens in another country for some other trial,
some other detention, in our view, would not be relevant for the purposes
of the proceedings in the country. The factual scenario is that the
appellant was charged with having a fake passport. He was found guilty
and convicted of sentence from 18.09.2002. This had nothing to do with
the proceedings against him in India. His sentence would have been
completed on 18.03.2007 de hors the aspect of remission or
commutation. However, he was granted conditional release for the
remaining sentence on 12.10.2005. The mere fact that there was also a
detention order under the Red Corner notice was of no significance. He
14(supra)
15(supra)
40
was again imprisoned from 12.10.2005 till 10.11.2005, i.e. when he was
handed over to the Indian authorities. The period till 10.12.2005, when
he was serving out the sentence, certainly could not have been counted.
That leaves the period of less than a month only, which is really more of
an academic exercise.
51. We cannot accept the plea of the learned counsel for the appellant
that the formal arrest on 18.09.2002 of the appellant under the Red
Corner notice is the date to be taken into reckoning for serving out
sentence in the present case or for that matter that the relevant date
should be 28.03.2003, when the extradition proceeding started. In view
of what we have said, the only case which could emerge was of taking
the date when he was given a conditional release on 12.10.2005. Thus, if
one looks from the perspective of detention of the case in India, the
period commences only on his being detained at Portugal on 12.10.2005,
albeit giving him benefit of a little less than one month.
52. The factual scenario aforesaid, thus, makes the debate over the
judgment in Raghbir Singh16 case, Atul Manubhai Parek17 case and
16(supra)
17(supra)
41
Najakat Ali Mubarak Ali18 case more academic. Suffice for us to say
that the judgment on this issue in Atul Manubhai Parek19 case discusses
the earlier two opinions in Raghbir Singh20 case and Najakat Ali
Mubarak Ali21 case to opine that the accused cannot claim a double
benefit under Section 428 of the Cr.P.C. As already stated, the law would
have application within the country and does not have anything to do
with extra-territorial application where the trial and conviction has taken
place for a local offence, i.e. Portugal in this case.
53. Now turning to Allan John Waters22 case relied upon by learned
counsel for the appellant, the factual scenario is quite different from the
present case. The petitioner there was arrested pursuant to a Red Corner
notice on 02.07.2003 and remained in custody till 06.09.2004. In this
time period, the extradition process was on. Since the detention was in
pursuance of a case in India, the benefit of period in detention in the USA
was given to him. In fact, to that extent we have followed that principle
in the present case by giving the benefit of detention period qua the
present case and, thus, treated the date of detention in custody from
18(supra)
19(supra)
20(supra)
21(supra)
22(supra)
42
12.10.2005. We have ignored the formal detention order passed earlier
for the reason that the period the appellant was serving out his sentence
in Portugal, in pursuance of a local offence, cannot be a set off against
the detention in the present case. It is also apparent from the fact that on
serving his sentence and getting the benefit of conditional release, his
detention thereafter was in pursuance of the present proceedings on the
same date of 12.10.2005.
Conclusion:
54. In view of the aforesaid facts and circumstances, we conclude that
the detention of the appellant commence from 12.10.2005 in the present
case. On the appellant completing 25 years of sentence, the Central
Government is bound to advice the President of India for exercise of his
powers under Article 72 of the Constitution, and to release the appellant
in terms of the national commitment as well as the principle based on
comity of courts. In view thereof, the necessary papers be forwarded
within a month of the period of completion of 25 years sentence of the
appellant. In fact, the Government can itself exercise this power in terms
of Sections 432 and 433 of the Cr.P.C. and such an exercise should also
take place within the same time period of one month.
43
55. The appeals are accordingly disposed of leaving the parties to bear
their own costs.
………………………J.
[Sanjay Kishan Kaul]
....……………………J.
[M.M. Sundresh]
New Delhi.
July 11, 2022.
44
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