# OJ 13 (ADDL.) S.C.R. 8 ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF MAHARASHTRA & ANR

- **Citation:** [2010] 13 S.C.R. 8
- **Court:** Supreme Court of India
- **Decided:** 2010-09-10
- **Case number:** Criminal Appeal No. 990 of 2006
- **Bench:** P. Sathasivam, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oj-13-addl-s-c-r-8-abu-salem-abdul-qayoom-ansari-v-state-of-maharashtra-anr-26422
- **Pages:** 68

## Headnote

· Extradition Act, 1962 - ss. 21 and 19 - Absconded
accused charged under various provisions of /PC, TADA,
C Arms Act and the Explosive Substances Act - The accused
detained in Portugal - No formal extradition treaty existed
between Portugal and India - Indian Government by a
Notification, making the Extradition Act applicable to Portugal
- India making request to Portugal for extradition of the
o accused under International Convention on Suppression of
Terrorist Bombings - India also assuring that the accused, if
extradited, would not be visited by death penalty or
imprisonment beyond 25 years - Portuguese Go~·ernment
extradited the accused for Section 1208 rlw. s. 302 /PC and
E s. 3(2) TADA among others, but denied extradition for s. 25
(1A) and (128) of Arms Act and ss. 4 and 5 'or Explosive
Substances Act - India also assured that oocused would not
be tried for the offences other than those for which extradition
sought - After extradition, accused tried for all the offences -
F Accused challenged before Supreme Court of India as well
as Portuguese courts, his trial for the offence.....for which
extradition was not granted - Portuguese Court adjourned the
matter till the disposal of the matter in the instant cases by
Supreme Court - Held: The extradition of the accused. was
not only under the provisions of the convention, but also in
G the light of the principle of reciprocity made applicable
through the application of the Act to the Portugal and also the
provisions of the Act applicable to Non-Treaty States - Trial
of the extradited accused is permissible u/s. 21 for 'lesser
H
8
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
9
MAHARASHTRA
offences', even if the same are not covered by extradition
A
Decree - There has been no violation of Rule of Speciality -
Penal Code, 1860 - s. 1208 r/w. ss. 324, 326, 427, 435, 121,
121A, 122, 307, 302 and 201 -
Terrorist and Disruptive
Activities (Prevention) Act, 1987 - ss. 3, 4 and 5 - Arms Act,
1959- ss. 3, 7(a), 25(1A), 25(1AA) 26, 29 and 35- Explosive
B
Substances Act, 1908 - ss. 3, 4, 5 and 6 - Convention on
Suppression of Terrorist Bombing - Articles 2(1) and (3) and
1 (3)(d) - Notification No. GSR-822 (E) dated 13. 12. 2002
issued by Government of India
International Law - The term 'extradition' - Explained.
Criminal Trial - Separation of trial - Absconded accused
charged under various provisions of /PC, TADA, Arms Act
and Explosive Substances Act alongwith 189 accused - On
c
the detention of the absconded accused, trial of the accused D
separated from the trial of the other 123 accused whose trial
was nearing completion - Propriety of separation of the trial
- Held: On facts, separation of trial was correct - Code of
Criminal Procedure, 1973.
Doctrines:
Doctrine of 'Speciality' - Applicability of.
Doctrine of 'Reciprocity' - Applicability of.
Rule of non-inquiry - Applicability of.
Doctrine of 'Double Criminality' - Applicability of
Doctrine of 'Clean Slate' - Applicability of
Words and Phrases:
'Extradition' - Connotation of
'Lesser Offence' and 'Minor Offence'- Difference between
E
F
G
H
10
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A
'Lesser Offence'- Meaning of, in the context of s. 21 of
Extradition Act, 1962.
The Appellant-accused, and 189 other accused
persons, were charged with offences punishable u/s.
8 120B r/w. ss. 324, 326, 427, 435, 121, 121-A, 122, 307, 302
and 201 IPC r/w. SS. 3, 4 and 5 of TADA Act r/w. SS. 3, 7
(a), 25 (1A), 25 (1AA), 26, 29, 35 of Arms Act, 1959 r/w. ss.
3, 4, 5 and 6 of the Explosive Substances Act, 1908 in
connection with the serial bomb Blast cases of ·1993 in
Bombay, The appellant was one of the 44 absconders.
C He was declared proclaimed offender. The Designated
Court issued non-bailable warrant against him and
INTERPOL also issued Red Corner''Notice for his arrest.
Portuguese police detained the appellant on the
D basis of the Red Corner Notice. As no formal extradition
treaty existed between India and Portugal, Government
of India reque

## Text

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A
B
[201 OJ 13 (ADDL.) S.C.R. 8
ABU SALEM ABDUL QAYOOM ANSARI
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 990 of 2006)
SEPTEMBER 10, 2010
[P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.]
· Extradition Act, 1962 - ss. 21 and 19 - Absconded
accused charged under various provisions of /PC, TADA,
C Arms Act and the Explosive Substances Act - The accused
detained in Portugal - No formal extradition treaty existed
between Portugal and India - Indian Government by a
Notification, making the Extradition Act applicable to Portugal
- India making request to Portugal for extradition of the
o accused under International Convention on Suppression of
Terrorist Bombings - India also assuring that the accused, if
extradited, would not be visited by death penalty or
imprisonment beyond 25 years - Portuguese Go~·ernment
extradited the accused for Section 1208 rlw. s. 302 /PC and
E s. 3(2) TADA among others, but denied extradition for s. 25
(1A) and (128) of Arms Act and ss. 4 and 5 'or Explosive
Substances Act - India also assured that oocused would not
be tried for the offences other than those for which extradition
sought - After extradition, accused tried for all the offences -
F Accused challenged before Supreme Court of India as well
as Portuguese courts, his trial for the offence.....for which
extradition was not granted - Portuguese Court adjourned the
matter till the disposal of the matter in the instant cases by
Supreme Court - Held: The extradition of the accused. was
not only under the provisions of the convention, but also in
G the light of the principle of reciprocity made applicable
through the application of the Act to the Portugal and also the
provisions of the Act applicable to Non-Treaty States - Trial
of the extradited accused is permissible u/s. 21 for 'lesser
H
8
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
9
MAHARASHTRA
offences', even if the same are not covered by extradition
A
Decree - There has been no violation of Rule of Speciality -
Penal Code, 1860 - s. 1208 r/w. ss. 324, 326, 427, 435, 121,
121A, 122, 307, 302 and 201 -
Terrorist and Disruptive
Activities (Prevention) Act, 1987 - ss. 3, 4 and 5 - Arms Act,
1959- ss. 3, 7(a), 25(1A), 25(1AA) 26, 29 and 35- Explosive
B
Substances Act, 1908 - ss. 3, 4, 5 and 6 - Convention on
Suppression of Terrorist Bombing - Articles 2(1) and (3) and
1 (3)(d) - Notification No. GSR-822 (E) dated 13. 12. 2002
issued by Government of India
International Law - The term 'extradition' - Explained.
Criminal Trial - Separation of trial - Absconded accused
charged under various provisions of /PC, TADA, Arms Act
and Explosive Substances Act alongwith 189 accused - On
c
the detention of the absconded accused, trial of the accused D
separated from the trial of the other 123 accused whose trial
was nearing completion - Propriety of separation of the trial
- Held: On facts, separation of trial was correct - Code of
Criminal Procedure, 1973.
Doctrines:
Doctrine of 'Speciality' - Applicability of.
Doctrine of 'Reciprocity' - Applicability of.
Rule of non-inquiry - Applicability of.
Doctrine of 'Double Criminality' - Applicability of
Doctrine of 'Clean Slate' - Applicability of
Words and Phrases:
'Extradition' - Connotation of
'Lesser Offence' and 'Minor Offence'- Difference between
E
F
G
H
10
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A
'Lesser Offence'- Meaning of, in the context of s. 21 of
Extradition Act, 1962.
The Appellant-accused, and 189 other accused
persons, were charged with offences punishable u/s.
8 120B r/w. ss. 324, 326, 427, 435, 121, 121-A, 122, 307, 302
and 201 IPC r/w. SS. 3, 4 and 5 of TADA Act r/w. SS. 3, 7
(a), 25 (1A), 25 (1AA), 26, 29, 35 of Arms Act, 1959 r/w. ss.
3, 4, 5 and 6 of the Explosive Substances Act, 1908 in
connection with the serial bomb Blast cases of ·1993 in
Bombay, The appellant was one of the 44 absconders.
C He was declared proclaimed offender. The Designated
Court issued non-bailable warrant against him and
INTERPOL also issued Red Corner''Notice for his arrest.
Portuguese police detained the appellant on the
D basis of the Red Corner Notice. As no formal extradition
treaty existed between India and Portugal, Government
of India requested the Portuguese Government for
extradition of the appellant under the International
Convention on Suppression of Terrorist Bombings.
E Government of India also, by Notification dated
13.12.2002; made the Extradition Act applicable to the
Republic of Portugal. Indian Government gave assurance
to the Government of Portugal that the accused, if
extradited would not be visited by death penalty or
F imprisonment for a term beyond 25 years. In pursuance
to the above assurance, ministerial order was passed by
the Portuguese Government admitting extradition of the
accused amongst others for Section 120B r/w. s. 302 IPC,
s. 3(2) TADA. However, the order declined extradition for
G Section 25(1A) and (12B) of the Arms Act and Sections 4
and 5 of Explosive Substances Act. The Ambassador of
India gave further assurance that the accused would not
be tried for offences other than those for which
extradition was sought for, and they would not be
extradited to any third country. Ultimately, the Supreme
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
11
MAHARASHTRA
Court of Justice of Portugal permitted extradition in view
A
of the assurance of the Government of India. The order
was also confirmed by the Constitutional Court of
Portugal. The custody of the appellant was handed-over
to the Indian Authorities.
Thereafter, prosecution filed an application before
the Designated Court, seeking separation of the trial of
B '
c
the appellant-accused from the main trial. The appellantaccused also filed an application seeking production of
relevant record of extradition and seeking joint trial
alongwith the 123 accused, whose trial was nearing
completion. The Designated Court allowed separation of
trial and held that the appellant could be tried for all the
offences because the assurances were given with
respect to sentences which could be imposed and not
with respect to the offences with which he could be tried.
D
The appellant-accused filed instant appeals against
the orders of the designated court framing charges
against him and allowing separation of his trial from the
main trial in the Bombay Blast case. He also filed a writ
petition under Article 32 of the Constitution of India. In
addition thereto, he also moved an application before the
Portuguese Court of Appeal complaining that he was
being tried in India in violation of Principles of Speciality
as contained in Article 16 of Law 144/991 wherein the
Court expressed its inability to enquire into the question
of surrender by the Indian State. In the appeal against the
order, the Supreme Court of Justice of Portugal remitted
E
F
the matter to the Court of Appeals to enquire whether
there was any violation of the conditions as alleged. The
G
Court of Appeals adjourned the matter till the final order
is passed by the Supreme Court of India in the instant
cases.
The appellant contended that his trial for the offences
H
12
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A for which he has not been specifically extradited, is in
flagrant disobedience of the mandate of s. 21 of Indian
Extradition Act as well as the solemn sovereign
assurance of the Government of India, the ministerial
order of extradition passed by the Government of
B Portugal, the judgment of the Court of Appeals as well as
Supreme Court of Portugal; that he was being wrongfully
tried by the Designated Court in violation of the
extradition decree and breaching the 'principle of
Speciality'. He also contended that because of the
c separation of his trial from the trial of the 123 accused,
he would forego the opportunity to cross-examine the
witnesses.
D
Dismissing the appeals and the writ petition, the
Court
HELD:
Per Sathasivam,J.
1.1 The term 'extradition' denotes the process
E whereby under a concluded treaty one State surrenders
to any other State at its request, a person accused or
convicted of a criminal offence committed against the
laws of the requesting State, such requesting State being
competentto try the alleged offender. Though extradition
F is granted in implementation of the international
commitment of the State, the procedure to be followed by
the courts in deciding whether extradition should be
granted and on what terms, is determined by the
municipal law of the land. Extradition is founded on the
G broad principle that it is in the interest of civilised
communities that criminals should not go unpunished
and on that account it is recognised as a part of the
comity of nations that one State should ordinarily afford
to another State assistance towards bringing offenders
H to justice. [Para 11] [34-E-H; 35-A]
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
13
MAHARASHTRA
1.2 The appellant has been charged within the
A
permissible scope of Section 21 (b) of the Extradition Act,
1962 and the Designated Court has not committed any
illegality in passing the impugned orders. No bar has
been placed by the Portuguese Courts for the trial of
lesser offences in accordance with the provisions
B
contained under Section 21(b) of the Extradition Act,
although Portuguese Courts were aware of the said
provisions of Extradition Act. [Paras 32 and 35] [63-C-D;
64-D]
1.3 The Doctrine of Specialty is a universally C
recognized principle of international law and partakes of
doctrines of both double criminality and reciprocity.
Indian Extradition Act, 1962 also recognizes the Doctrine
of Specialty in $ection 21 of the Act. Unlike the law in
United Kingdom, United States and Portugal, the law in
D
India only permits the extradited person to be tried for
lesser offence disclosed by the facts proved for the
purpose of securing his surrender. Apart from the said
offence being made out from the facts proved by the
Indian authorities for the surrender of the fugitive, the
E
additional indictment, if any, has to be lesser than the
offences for which the extradition has been granted.
[Paras 25 and 26] [56-F-H; 57-A-B]
Suman Sood @ Kamaljeet Kaur vs. State of Rajasthan
F
(2007) 5 sec 634 - relied on.
Daya Singh Lahoria vs. Union of India and Ors. (2001)
4 sec 516 - referred to.
"The Law of Extradition and Mutual Assistance". (Second
G
Editionby Clive Nicholls QC, Clare Montgomery QC, Julian B.
Knowles -Oxford Publication Halsbury's laws of England, 4th
Ed., Vol. 18, Para246; American Jurisprudence, 2nd Ed.,
Vol. 31A - referred to.
H
14
SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A
1.4 The assumption of the appellant that since he had
been extradited under International Convention for the
Suppression of Terrorist Bombings, he can be tried only
for the offences which are related to the said Convention,
cannot be sustained. If the said claim is accepted, it
B would be contrary to the judgment of the Constitutional
Court of Portugal and it also shows the ignorance of the
appellant towards the Notification dated 13.12.2002,
issued by the Government of India making the Extradition
Act applicable to Government of Portugal except Chapter
c Ill. The Court has not granted extradition merely on the
basis of Extradition Treaty but also on the basis of
reciprocity. Pursuant to Section 3 of the Act, the order of
the Government of India GSR-822(E) dated 13.12.2002
was approved and published ensuring due regard for the
0
principle of reciprocity. [Para 27) [59-G-H; 60-A-C]
1. 5 It is true that there is no Extradition Treaty
between India and Portugal. However, the laws of both
the countries permit entertaining request for extradition
from Non-Treaty States also. The extradition request was
E made to the Government of Portugal by the Government
of India under the provisions of the Extradition Act
applicable to Non-Treaty States i.e. Section 19 of the Act.
Although the Convention was also relied upon for the
extradition, it was not the sole basis as is apparent from
F the Letter of Request. The primary consideration for the
request of extradition was the assurance of reciprocity.
The Notification dated 13.12.2002 by the Government of
India directing that the provisions contained in the
Extradition Act shall be applicable to the Republic of
G Portugal was issued keeping in view the said principle
of reciprocity. For the purpose of extradition
proceedings, the appellant was treated as a fugitive
criminal as defined under Section 2(f) of the Extradition
Act. The provisions of the Extradition Act are applicable
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
15
MAHARASHTRA
in respect of the extradition of the appellant-accused. The
A
Court of Appeals of Lisbon has recognized this principle
of reciprocity and the applicability of the provisions of the
Extradition Act to the Republic of Portugal. The Supreme
Court of Justice and Constitutional Court of Portugal
have also approved it. None of these courts have
B
mentioned in their orders that the accused could not be
tried in India for the offences for which his trial could take
place as per the domestic laws of India. [Para 28] [60-DH; 61-A-B]
1.6 A bare reading of Section 21 of the Extradition Act C
would indicate that the appellant-accused can be tried for
the offences for which he has been extradited. The
Supreme Court of Justice, Portugal has granted
extradition of the appellant for all the offences mentioned
in para-1 of the order dated 27 .01.2005. In addition, he can
D
also be tried for lesser offence/offences in view of
Section 21 of the Extradition Act disclosed by the facts
proved for the purposes of securing his surrender.
'Lesser offence' means an· offence which is made out
from the proved facts and provides lesser punishment,
E
as compared to the offences for which the fugitive has
been extradited. The offence has to be an extradition
offence, as defined under Section 2 (c) (ii) of the Act i.e.
an offence punishable with imprisonment for a term
which shall not be less than one year under the laws of
F
India or of a foreign State. The 'lesser offence' cannot be
equated with the term 'minor offence' as mentioned in
Section 222 Cr.P.C .. The Legislature has deliberately used
the word "lesser" in Section 21 (b) of the Extradition Act
instead of the word "minor". Thus, the punishment G
provided for the offence is relevant and not the
ingredients for the purposes of interpretation of the term
"lesser offence". [Para 29) [61-B-G)
1.7 The plea of the appellant that he can be tried only
for the offences covered under Article 2(1) of the
H
16
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Convention is misconceived in view of the fact that he
was extradited not only under the Convention but also
in the light of the principle of reciprocity made applicable
through the application of the Extradition Act to the
Republic of Portugal. A complete reading of Article 2 of
B the Convention makes it clear that it deals not only with
those accused who commit the substantive offences as
defined in Article 2(1) but also includes all the
conspirators and those who have constructive liability for
commission of the substantive offences as per clause (3)
C of Article 2 of the Convention, which fact has also been
mentioned by the Supreme Court of Justice, Portugal in
its order. Further, sub-clause (d) of Article 1 (3) of the
Convention makes it abundantly clear that the explosive
or lethal device means a weapon or device i.e. designed,
0
or has the capability to cause death, serious bodily injury
or substantial material damage through its release etc.
AK-56 rifles are the weapons/devices, which have the
capability to cause death and serious bodily injury
through the release of cartridges and are covered under
the said Article. The appellant has been charged for
E possession, transportation and distribution of AK-56
rifles, their ammunitions as well as hand-grenades, which
were illegally smuggled into the country in pursuance of
the criminal conspiracy. [Para 30) [61-G-H; 62-A-E]
F
1.8 There has been no violation of Rule of Speciality
and the Solemn Sovereign Assurance given by the
Government of India in the letter dated 25.05.2003 of the
Indian Ambassador to the Government of Portugal
regarding the trial of the appellant-accused. The said
G assurance of the Indian Ambassador was given to the
effect that the appellant will not be prosecuted for the
offences other than those for which his extradition has
been sought and that he will not be re-extradited to any
other third country. There has been no violation of Rule
H of Speciality. As per the Government of India Gazette
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
17
MAHARASHTRA
Notification dated 13.12.2002, all the provisions contained
A
under the Extradition Act are made applicable in respect
of the extradition of the appellant except those contained
in Chapter Ill of the Act. The Court of Appeals in Lisbon,
has recognized this principle of reciprocity and the
applicability of the provisions of Extradition Act to
B
Portugal. The Supreme Court of Justice and
Constitutional Court of Portugal have also approved it.
In view of the fact that the provisions of the Extradition
Act, 1962 have been made applicable to Portugal,
provisions contained in Section 21 of the Act would come c
into operation while conducting the trial of the appellant.
[Para 31] [82-E-H; 83-A-B]
1.9 In the light of the Notification of the Government
of India about the applicability of the Extradition Act the
additional charges that have been framed, fit well within
D
the Proviso to Section 21 (b) of the Extradition Act. The
offences with which the appellant has been additionally
charged are lesser than the offences for which the
appellant has been extradited i.e., the offences with which
the appellant is charged are punishable with lesser
E
punishment than the offence for which he has been
extradited. The extradition granted in the instant case had
due regard to the facts placed which would cover the
offences with which the appellant has been charged. The
offences are disclosed by the same set of facts placed
F
before the Government of Portugal. [Para 33] [63-E-G]
2. There is no basis in the apprehension raised by
the appellant that because of the separation of the trial,
he would forego the opportunity to cross-examine the
G
witnesses. The order dated 24.08.2009 has granted the
appellant an opportunity to submit a list of witnesses
examined in the main trial for cross-examination. This
grievance has been dealt with in separate set of
proceedings. [Para 34] [64-8-C]
H
18
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Per Asok Kumar Ganguly, J. (Concurring)
HELD: 1. In India, extradition has not been defined
under the Extradition Act 1962. But extradition is different
from deportation by which competent State authorities
B order a person to leave a country and prevent him from
returning to the same territory. Extradition is also
different from exclusion, by which an individual is
prohibited from staying in one part of a Sovereign State.
Both deportation and exclusion basically are none consensual exercise whereas extradition is based on a
consensual treaty obligation between the requesting
State and the requested State. Extradition, however, is
only to be resorted to in cases of serious offences.
Extradition treaties and legislation are designed to
0 combine speed and justice . [Paras 6, 8 and 9) [65-C; 66B-E]
Gerhard Terlinden vs. John C. Ames, Re Evans - 1994
(3) All E.R. 449- referred to.
E
"International Extradition and World Public Order, 1974,
Oceana Publications" - referred to.
2. Doctrinally speaking, Extradition has five
substantive ingredients. They are: (a) reciprocity, (b)
F double criminality, (c) extraditable offences, (d) specialty
and (e) non inquiry. In India, the Act suffered an
amendment in 1993, by Act 66of1993. As a result thereof
Section 21 has been completely recast and the doctrine
of Specialty has been introduced. The amendment
enables the requesting State to try the fugitive for a lesser
G offence without restoring him to the requested State. In
fact the doctrine of specialty is in fact a corollary to the
principle of double criminality, and is founded on policy
and expediency and on the basic principle of reciprocity.
It is thus a universally recognized principle of
H international law and partakes of doctrines of both double
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
19
MAHARASHTRA
criminality and reciprocity. [Paras 25, 26, 27 and 28] [71A
E-F; 73-D-G]
B
3. A fair balance has to be struck between Human
Rights norms and the need to tackle transnational crime.
The extradition law has to be an amalgam of international
and national law. Normally, in extradition law the
requested State is to follow the rule of Non-Inquiry which
means that the requested State is not to normally make
inquiry about the nature of criminal justice system in the
requesting State. That is why in the instant case, on a
C
complaint being made by the appellant in the Court of the
requested country, the Courts of Portugal await the
decision of this Court. The actual conduct of trial of the
extradited ~ccused is left to the criminal jurisprudence
followed in the requesting State. However, non-inquiry is
not an absolute principle. In a given situation, the
D
requested State may question the procedures in the
requesting State if they are prima facie contrary to
fundamental principles of justice and there is a high risk
of the fugitive being prejudiced by the process of
extradition. Obligations entered by many countries of the
E
world, including India, in the form of Covenant on Civil
and Political Rights, and The Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment (to which India is a Signatory), would
preclude a total and unconditional observance of the
F
principle of non-inquiry. Even though, non- inquiry is not
an absolute doctrine, but in the facts of the instant case,
it operates. [Paras 10, 11 and 16] [66-G; 67-D-F; 69-D-E]
Soering vs. United Kingdom 1989 (11) EHRR 439;
G
Canada vs. Schmidt (1987) 1 SCR 500 - referred to.
4. In the instant case, extradition has been allowed
by the requested State on the specific undertaking of the
Government of India that the extradited criminal will not
be subjected to death penalty or imprisonment beyond
H
20
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 25 years. Therefore, the basic human rights
considerations have been taken into account and the
guidelines in Soering case have been adhered to .. Thus,
primacy has been accorded to human rights norms in the
B
extradition process. [Para 24] [71-C-D]
Soering vs. United Kingdom 1989 (11) EHRR 439 -
referred to.
5. This position of extraditable offences, and the
obligations of the requesting State can further be
C understood, if one bears in mind the fact that the
doctrines of double criminality and specialty are both
safeguards of the individual rights of the extraditee wtio
should not be tried on unexpected counts, as well as the
rights of the requested State to have its laws and
D processes given adequate deference by the requesting
State. It is not only a means to protect the person from
unexpected prosecution, but also a preventive guard
against the abuse of the legal process of the requested
State. While the first takes care of the individual's right,
E the second takes care of the rights of a sovereign State.
[Para 31] [74-F-H; 75-A]
6. Section 21 of Extradition Act is in keeping with the
rule of double criminality, which requires a mutually
F acceptable position between the requesting as well as
the requested State on all the aspects of the criminal act
committed by the person who is to be extradited. This
understanding is not about an agreement as to the
specifics, but rather a consensus ad idem in the
contractual relationship between two sovereign States.
G [Para 30] [74-C-D]
H
Extradition in International Law (1971) at page 137 -
referred to.
7. In the instant case, the insistence of the Central
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
21
MAHARASHTRA
Government on trying the appellant for lesser offences
A
B
is permissible, both under the Extradition Act as well as
under the Convention for Suppressing Terrorist
Bombings. The Convention fills up a huge void in
international law by expanding the legal framework and
enabling several States to co-operate in the investigation,
prosecution and extradition of several persons who are
engaged in such international terrorism. It is of utmost
importance as it strengthens international law
enforcement in controlling international terrorism. This
Convention is structured on prior counter terrorism
C
conventions adopted by the United Nations. It calls upon
the member parties to declare certain specified conducts
to be criminal activities and to initiate prosecution for
them, and to extradite persons who have committed such
conduct in one country and are staying in another 0
country. But unlike its pre~ecessors, this Convention
does not define terrorism. However, it points out
particular conducts, regardless of the motive, as
internationally condemnable. Thus, this convention is of
crucial importance· in the field of international law
enforcement devices. [Paras 17, 19 and 20) [69-F; 70-AE
E]
The International Convention for the Suppression of
Terrorist Bombings by Samuel M. Witten; American Journal
of International Law, Vol.92, No.4(October1998) pp.774-781
- referred to.
8. There are two ways in which to describe a lesser
crime. Either every single element of a lesser crime
should be component of the greater crime on the basis
of their statutory definitions; or the allegations of the
larger crime in the indictment should include all the
factual details of the lesser crime. Section 21 (b) of the Act
seems to embody the latter of these two principles. This
means that a crime which can be framed from out of the
F
G
H
22
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R
A factual averments themselves (i.e. evidence submitted)
before the requested State at the time of extradition, can
be the one upon which the fugitive can be tried. A lesser
crime can be a cognate crime, in that it shares its roots
with the primary crime, even though it may be
B independent of it. [Paras 21 and 22] [70-F-H; 71-A]
Submission of Lesser Crimes, Columbia Law
Review, Volume 56(6),1956 pp. 888-902 - referred to.
9. As long as the facts that have been submitted
C before the requested State prima facie show the guilt of
the extraditee in a foreseeable and logically consistent
way, the said person can be tried on all such counts that
can be conclusively proved against him or her. [Para 32]
[75-8]
D
E
F
Case Law Reference:
In the Judgement of P. Sathasivam, J:-
(2001) 4 sec 516
(2001) 5 sec 634
referred to
relied on
In the Judgment of Asok Kumar Ganguly, J:
1994 (3) All E.R. 449
referred to
1989 (11) EHRR 439
referred to
(1987) 1 SCR 500
referred to
Para 24
Para 26
Para 9
Para 10
Para 10
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 990 of 2006.
H
From the Judgment & Order dated 18.03.2006 &
13.06.2006 of the Designated Court, Arthur Road Jail, Mumbai
in Bombay Blast Case No. 1 of 1993.
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
23
MAHARASHTRA
WITH
A
W.P. (Crl.) No. 171 of 2006, Crl. A. No. 1142-1143 of 2007.
lrshad Ahmed, Arvind Kumar Shukla, S. Pasbola, Prem
Malhotra, Mrinmayee Sahu, Rishi Malhotra for the Appellant.
Gopal Subramaniam, SG, H.P. Rawal, ASG, Ranjana
Narayan, Satyakam, Arvind Kumar Sharma, P. Parmeswaran,
Arun R. Pednekar, Sanjay Kharde, Asha G. Nair, Ravindra
Keshavrao Adsure, V.N. Raghupathy for the Respondents.
The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1. The appeals and the writ petition
raised a common question, as such were heard together and
are being disposed of by this common judgment. The grievance
B
c
of the appellant-Abu Salem Abdul Qayoom Ansari in the
D
appeals and writ petition is that the criminal courts in the country
have no jurisdiction to try in respect of offences which do not
form part of the extradition judgment, by virtue of which he has
been brought to this country and he can be tried only for the
offences mentioned in the extradition decree.
E
2. Criminal Appeal No. 990 of 2006, filed under Section
19 of the Terrorist and Disruptive Activities (Prevention) Act,
1987 (hereinafter referred to as "the TADA Act"), arose out of
framing of charge on 18.03.2006 against the appellant by the
Designated Court at Arthur Road Jail, Mumbai in RC No.1 (S/
93)/CBl/STF known as Bombay Bomb Blast Case No. 1 of
1993 and the order dated 13.06.2006 passed by the said Court
separating the trial of the accused/appellant from the main trial
in the Bombay Bomb Blast Case.
3. The appellant filed Criminal Appeal Nos. 1142-1143 of
2007 against the order dated 16.04.2007 by the same
Designated Court, framing charges against him under Sections
1208, 302, 307, 387, 382 IPC and under Sections 3(2)(i),
3(2)(ii), 3(3), 3(5) and 5 of the TADA Act.
F
G
H
24
SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A
4. In addition to filing of the abovesaid appeals, the
appellant has also filed Writ Petition (Crl.) No. 171 of 2006
under Article 32 of the Constitution of India seeking a) to issue
a writ of Certiorari to quash the charges framed against him in
Bombay Bomb Blast Case No. 1 of 1993 arising out of RC No.
B 1 (S/93)/CBl/STF by framing of charge on 18.03.2006; b) to
issue a writ of Certiorari to quash the order passed by the
Designated Court under TADA Act dated 13.06.2006 passed
in Misc. Application No. 144 of 2006; c) issue a writ of Certiorari
to declare that the charges framed on 18.03.2006, in Bombay
C Bomb Blast Case No. 1 of 1993, as violative of the Rule of
Speciality and Section 21 of the Extradition Act, 1962; (d) issue
a writ of Mandamus to release and discharge the writ petitioner
by quashing all the proceedings against him; (e) issue a writ
of Prohibition prohibiting the respondents from prosecuting the
0 writ petitioner any further for the offences for which the petitioner
has not been extradited by the Court of Appeals at Lisbon as
affirmed by the order of the Supreme Court of Portugal; f) issue
a writ of Prohibition prohibiting the Designated Court at Arthur
Road Jail at Mumbai from separating the trial of the writ
E petitioner from the other accused whose trial is stated to have
been completed.
5. Prosecution Case:
(a) On 12.03.1993, there were a series of bomb explosions
F in the Mumbai City which resulted in death of 257 persons,
injuries of various types to 713 persons and destruGtion of
properties worth more than Rs. 27 crores (approximately).
These bomb explosions were caused at vital Government
installations, public places and crowded places in the city and
G its suburbs with an intention to overawe the Government
established by law, and to strike terror among the public at large
and also to adversely affect the peace and harmony among
different sections of the people. Twenty-seven criminal cases
were registered at respective Police Stations with regard to the
H said bomb explosions and subsequent recovery of arms,
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
25
MAHARASHTRA [P. SATHASIVAM, J.]
ammunitions and explosives, which were illegally smuggled into
A
the country with the intention to commit the said terrorist acts.
On completion of investigation, it was disclos.ed that various
acts committed by the accused persons were out of a single
conspiracy and, therefore, a single charge-sheet was filed in
the specially created Designated Court, Mumbai, against 189
B
accused persons including 44 absconders on 04.11.1993 for
offences punishable under Section 120B read with Sections
324, 326, 427, 435, 121, 121-A, 122, 307, 302 and 201 of the
Indian Penal Code read with Sections 3, 4 and 5 of the TADA
Act read with Sections 3, 7(a), 25(1A), 25(1M}, 26, 29, 35 of c
the Arms Act, 1959 read with Sections 3, 4, 5 and 6 of the
Explosive Substances Act, 1908. The appellant-Abu Salem
was one of the absconders mentioned in the charge-sheet.
(b) The investigation disclosed that the appellant-Abu
0
Salem and other accused persons hatched a criminal
conspiracy during the period December, 1992 to April, 1993
with an object to create disturbances of serious nature by
committing terrorist acts by bomb explosions, murders and
causing destruction of properties throughout India. In pursuance
of the said criminal conspiracy, a large quantity of arms like
E
AK-56 rifles, pistols, hand-grenades, ammunitions and ROX
explosives were illegally smuggled into the country through sea
at Dighi Jetty and Shekhadi ports in Maharashtra State during
January and February, 1993. These illegal arms and
ammunitions were kept and stored at different places with
F
different persons with the object to commit terrorist acts.
(c) The appellant-Abu Salem was entrusted with the task
of transportation of illegally smuggled arms and ammunitions,
their storage and distribution to other co-accused persons.
G
Investigation has disclosed that a portion of arms and
explosives, which were smuggled and brought illegally into India
on 09.01.1993, were taken to the State of Gujarat and stored
at Village Sansrod, Di$t. Bharuch. In the second week of .
January, 1993, on the instructions of absconding accused,
H
26
SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A
Anees Ibrahim Kaskar, appellant-Abu Salem brought AK-56
rifles, their ammunitions and hand-grenades from Village
Sansrod to Mumbai and distributed the same among coaccused persons.
8
(d) On 12.03.1993, ROX filled vehicles and suit-cases were
planted at strategic places like Bombay Stock Exchange, Air
India Building, Near Shiv Sena Bhawan, Plaza cinema and
thickly populated commercial places like Zaveri Bazar, Sheikh
Memon Street etc. The suit-case bombs were also planted in
C
the rooms of 3 five-star Hotels, namely, Hotel Sea Rock,
Sandra, Hotel Juhu Centaur and Airport Centaur, Mumbai.
Explosions were caused from the said vehicle-bombs and suitcase bombs in the afternoon of 12.03.1993 and within a period
of about two hours, large-scale deaths and'-destruction was
caused, as described earlier. Hand-grenades were also thrown
D
at two places i.e. Sahar International Airport, Mumbai and
Fishermen Colony, Mahim, Mumbai. The explosions caused by
hand-grenades also produced similar results.
(e) During the course of investigation, a large quantity of
E
arms, ammunitions and explosives were recovered from the
possession of accused persons. In India, AK-56 rifles,
ammunitions and hand-grenades cannot be possessed by
private individuals, as these types of sophisticated arms and
ammunitions can only be used by the armed forces and other
F
law enforcing agencies.
(f) Since the appellant-Abu Salem absconded and could
not be arrested during the course of investigation, he was shown
as an absconder in the charge-sheet. The Designated Court,
Mumbai, issued Proclamation No. 15777 of 1993 against him
G
on 15.09. 1993. As the accused did not appear before the
Court despite issuance of Proclamation, he was declared as
a Proclaimed Offender on 15.10.1993. The Designated Court,
Mumbai issued Non-bailable Warrant against appellant-Abu
Salem and Interpol Secretariat General, Lyons, France also
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF
27
MAHARASHTRA [P. SATHASIVAM, J.]
issued a Red Corner Notice No. A-103/3-1995 for his arrest.
A
(g) During the course of trial, the Designated Court,
Mumbai, framed common charge of criminal conspiracy
punishable under Section 3(3) of the TADA Act and Section
120 B of the Indian Penal Code read with Sections 3(2)(i), (ii),
B
3(3), 3(4), 5 and 6 of the TADA Act read with Sections 302,
307, 326, 324, 427, 435, 436, 201and212 of the Indian Penal
Code and offences under Sections 3 and 7 read with Sections
25 (1A), (1B), (a) of the Arms Act, 1959, Sections 9-B(1), (a),
(b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and
C
6 of the Explosive Substances Act, 1908 and Section 4 of the
Prevention of Damage to Public Property Act, 1984 against all
the accused who were present before the Court, as also the
accused who are absconding including the appellant. The
Designated Court, Mumbai, on 19.06.1995, ordered that the
evidence of the witnesses may be recorded against D
absconding accused persons in their absence in accordance
with the provisions of Section 299 Cr.P.C.
(h) On 18.09.2002, the appellant-Abu Salem was detained
by the Portugese Police at Lisbon on the basis of the above
E
mentioned Red Corner Notice. In December 2002, on receipt
of the intimation about his detention in Lisbon, the Government
of India submitted a request for his extradition in 9 criminal
cases (3 cases of CBI, 2 cases of Mumbai Police and 4 cases
of Delhi Police). The request was made relying on the
F
International Convention for the Suppression of Terrorist
. Bombings and on an assurance of reciprocity as applicable in
international law. Along with the requisition of extradition, the
relevant facts of the cases were enclosed in the form of duly
sworn affidavits of the concerned Police officers, together with
G
other supporting documents. The letter.of requisition was issued
under the signature of the then Minister of State for External
Affairs and the affidavit-in-support was affirmed by Sr.
Superintendent of Police, CBl/STF.
H
28
SUPREME COURT REPORTS [2010] 13 (ADDL) S.C.R.
A
(i) On 13.12.2002, the Government of India issued Gazette
Notification No. G.S.R.822(E) in exercise of tile powers
conferred by Sub-section ( 1) of Section 3 of the Extradition Act,
1962, directing that the provisions of the Extradition Act, other
than Chapter-Ill, shall apply to the Portuguese Republic with
B
effect from 13.12.2002.
0) The Government of India gave an undertaking under the
signatures of the then Dy. Prime Minister that on the basis of
provisions of the Constitution of India, Indian Extradition Act,
C
and the Code of Criminal Procedure, 1973 assured the
Government of Portugal that it will exercise its powers conferred
by the Indian Laws to ensure that if extradited by the Portugal
for trial in India, appellant-Abu Salem would not be visited by
death penalty or imprisonment for a term beyond 25 years. The
Ambassador of India in Lisbon, by letter dated 25.05.2003,
D gave another assurance that in the event of extradition of the
appellant- Abu Salem, he will :
E
(i)
not be prosecuted for offences other than those for
which his extradition has been sought.
(ii)
not be re-extradited to any third country.
(k) The request for the extradition of the appellant-Abu
Salem was considered and examined by the authorities in
Government of Portugal and by the Court of Appeals, Lisbon,
F
Supreme Court of Justice, Portugal and Constitutional Court of
Portugal. The Authorities/Courts in Portugal granted extradition
of the appellant-Abu Salem in 8 criminal cases (3 cases of CBI,
2 cases of Mumbai Police and 3 cases of Delhi Police).
Extradition in one case of Delhi Police was not granted. The
G Supreme Court of Justice, Portugal granted extradition of
appellant-Abu Salem for the following offences, included in the
request of Public Prosecution, as is clear from Para 13.1 of
the order dated 27 .01.2005 of Supreme Court of Justice,
Portugal, which was also confirmed by the Constitutional Court
H
of Portugal. The maximum sentence prescribed under the
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 29
MAHARASHTRA [P. SATHASIVAM, J.]
Indian Laws for these offences is mentioned here under:
A
S.
Offence
Maximum
No.
Punishment
(i)
The offence of criminal conspiracy
Death Penalty in the
punishable u/s. 1208 IPC
case present
B
(ii)
Murderpunishable U/s. 302 IPC
Death Penalty
(iii) Attempt to murder punishable u/s. Imprisonment for
307 IPC
Life
(iv)
Mischief punishable u/s. 435 IPC Imprisonment for 7
years
c
(v)
Mischief by fire or explosive
Imprisonment for
punishable u/s. 436 IPC
Life
(vi)
Offence punishable u/s.