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

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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

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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.

4

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

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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 political-

diplomatic 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

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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

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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 Ali

2

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 Ali

4

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 Sriharan

6

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 Waters

7

: 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 Ali

8

: 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 post-

convergence 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 Administration

9

: 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 Haryana

10

, 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. CBI

11

.

49.In the context of the judgment of this Court in Najakat Ali

Mubarak Ali

12

case, it was submitted by learned ASG that the judgment

in Raghbir Singh

13

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 Parek

14

case but the Court has

followed the view taken in Raghbir Singh

15

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 Singh

16

case, Atul Manubhai Parek

17

case and

16(supra)

17(supra)

41

Najakat Ali Mubarak Ali

18

case more academic. Suffice for us to say

that the judgment on this issue in Atul Manubhai Parek

19

case discusses

the earlier two opinions in Raghbir Singh

20

case and Najakat Ali

Mubarak Ali

21

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 Waters

22

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