# ABU SALEM ABDUL KAYYUM ANSARI v. THE STATE OF MAHARASHTRA

- **Citation:** [2022] 12 S.C.R. 169
- **Court:** Supreme Court of India
- **Decided:** 2022-07-11
- **Case number:** Criminal Appeal No. 679 of 2015
- **Bench:** Sanjay Kishan Kaul, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/abu-salem-abdul-kayyum-ansari-v-the-state-of-maharashtra-35715
- **Pages:** 27

## Headnote

Extradition Act, 1962: Sovereign assurance - In the instant
case, appellant was extradited from the Republic of Portugal and
custody of the appellant was handed over to Indian authorities -
Government of India submitted a solemn sovereign assurance under
the Portuguese law that appellant would not be convicted by death
penalty or imprisonment for a term beyond 25 years - Trial Court
convicted the appellant and sentenced him under the different
provisions of law - Held: 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 international obligations under the
Extradition Act - To achieve the objective of solemn assurance the
methodology placed before the Portugal Courts was that Art.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 - Further with the assurance under ss.432 and 433 of the
Cr.P.C. which conferred power on the Government to commute the
sentence to life imprisonment with terms not exceeding 14 years.
Code of Criminal Procedure, 1973: s.428 - Plea of set off -
Appellant was charged for travelling on a fake passport and was
arrested by Portguese Police in Lisbon on 18.09.2002 - Thereafter,
the appellant's extradition proceedings started on 28.03.2003 - He
served sentence from 18.09.2002 to 12.10.2005 when he was
granted conditional release for the remaining sentence - To complete
the 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 - Appellant claimed that he was entitled to set off as he
[2022] 12 S.C.R. 169
169
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was already in custody for a time period in Portugal - Designated
Court, Mumbai did not give benefit of any set off from 18.09.2002
till 12.10.2005 - Held: 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 extraterritorial application - Conviction and sentence from 18.09.2002
in Portugal had nothing to do with the proceedings against him in
India - However, he was granted conditional release for the
remaining sentence on 12.10.2005 - He was again imprisoned from
12.10.2005 till 10.11.2005, i.e. when he was handed over to the
Indian authorities - 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.
Disposing of the appeals, the Court
HELD: 1. 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 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
convi

## Text

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ABU SALEM ABDUL KAYYUM ANSARI
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 679 of 2015)
JULY 11, 2022
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Extradition Act, 1962: Sovereign assurance - In the instant
case, appellant was extradited from the Republic of Portugal and
custody of the appellant was handed over to Indian authorities -
Government of India submitted a solemn sovereign assurance under
the Portuguese law that appellant would not be convicted by death
penalty or imprisonment for a term beyond 25 years - Trial Court
convicted the appellant and sentenced him under the different
provisions of law - Held: 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 international obligations under the
Extradition Act - To achieve the objective of solemn assurance the
methodology placed before the Portugal Courts was that Art.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 - Further with the assurance under ss.432 and 433 of the
Cr.P.C. which conferred power on the Government to commute the
sentence to life imprisonment with terms not exceeding 14 years.
Code of Criminal Procedure, 1973: s.428 - Plea of set off -
Appellant was charged for travelling on a fake passport and was
arrested by Portguese Police in Lisbon on 18.09.2002 - Thereafter,
the appellant's extradition proceedings started on 28.03.2003 - He
served sentence from 18.09.2002 to 12.10.2005 when he was
granted conditional release for the remaining sentence - To complete
the 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 - Appellant claimed that he was entitled to set off as he
[2022] 12 S.C.R. 169
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was already in custody for a time period in Portugal - Designated
Court, Mumbai did not give benefit of any set off from 18.09.2002
till 12.10.2005 - Held: 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 extraterritorial application - Conviction and sentence from 18.09.2002
in Portugal had nothing to do with the proceedings against him in
India - However, he was granted conditional release for the
remaining sentence on 12.10.2005 - He was again imprisoned from
12.10.2005 till 10.11.2005, i.e. when he was handed over to the
Indian authorities - 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.
Disposing of the appeals, the Court
HELD: 1. 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 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. [Para 39][188-D-G]
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2. 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 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. [Para 40][189-C-F]
3. 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 would not be relevant for the purposes
of the proceedings in India. 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 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,
ABU SALEM ABDUL KAYYUM ANSARI v. THE STATE OF
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which is really more of an academic exercise. 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 [Paras 50,
51][193-D-G; 194-A-C]
4. In view of the aforesaid facts and circumstances, 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. [Para 54][195C-D]
Jaswinder Singh (Dead) Through Legal Representative
v. Navjot Singh Sidhu & Ors. 2022 SCC OnLine SC
652; State of Maharashtra & Anr. v. Najakat Ali
Mubarak Ali (2001) 6 SCC 311 : [2001] 3 SCR 600;
Allan John Waters v. State of Maharashtra & Anr. 2012
SCC Online Bom 389; Union of India v. V. Sriharan
alias Murugan & Ors. (2016) 7 SCC 1 : [2015] 14
SCR 613; Bhagirath v. Delhi Administration (1985) 2
SCC 580 : [1985] 3 SCR 743; Raghbir Singh v. State
of Haryana (1984) 4 SCC 348 : [1985] 1 SCR 724;
Atul Manubhai Parek v. CBI (2010) 1 SCC 603 : [2009]
15 SCR 1105 - referred to.
Case Law Reference
[2001] 3 SCR 600
referred to
 Para 24
[2015] 14 SCR 613
referred to
 Para 36
[1985] 3 SCR 743
referred to
 Para 44(iii)
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[1985] 1 SCR 724
referred to
 Para 48
[2009] 15 SCR 1105
referred to
 Para 48
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
679 of 2015.
From the Judgment and Order dated 25.02.2015 of the Designated
Court under the TADA (P) Act for Greater Bombay at Bombay passed
in T.A.D.A. Special Case No. 01 of 2006.
With
Criminal Appeal No. 180 of 2018
Rishi Malhotra, Utkarsh Singh, S. Hariharan, Vikash Singh,
Ms. Prapti Allagh, Advs. for the Appellant.
K. M. Nataraj, ASG, Sanjay Kumar Tyagi, Rajesh K. Singh,
Shailesh Madiyal, Mayank Pandey, Vinayak Sharma, Sharath Nambiar,
Susheel Tiwari, Sachin Sharma, Arvind Kumar Sharma, Mukesh Kumar
Maroria, Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,
Ms. Shwetal Shepal, Advs. for the Respondent.
The Judgment of the Court was delivered by
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
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
1 2022 SCC OnLine SC 652
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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 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 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:
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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.
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.
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
ABU SALEM ABDUL KAYYUM ANSARI v. THE STATE OF
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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
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.
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:
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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 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
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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
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 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
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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 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) 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
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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;
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
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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,
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 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
ABU SALEM ABDUL KAYYUM ANSARI v. THE STATE OF
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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. 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.
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
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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
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
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
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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
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
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
3 2012 SCCOnline Bom 389
4 (supra)
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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 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.
30. On 21.04.2022, we recorded a detailed order. We went into
the affidavit filed by the Home Secretary, who had emphasised what
ABU SALEM ABDUL KAYYUM ANSARI v.