ABU SALEM ABDUL KAYYUM ANSARI versus THE STATE OF MAHARASHTRA on 11 July 2022

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 instantcase, appellant was extradited from the Republic of Portugal andcustody of the appellant was handed over to Indian authorities –Government of India submitted a solemn sovereign assurance underthe Portuguese law that appellant would not be convicted by deathpenalty or imprisonment for a term beyond 25 years – Trial Courtconvicted the appellant and sentenced him under the differentprovisions of law – Held: Separation of Judicial and Executivepowers and the scheme of the Indian Constitution cannot bind theIndian courts in proceedings under the Extradition Act – Thus, thecourts must proceed in accordance with law and impose the sentenceas the law of the land requires, while simultaneously the Executiveis bound to comply with its international obligations under theExtradition Act – To achieve the objective of solemn assurance themethodology placed before the Portugal Courts was that Art.72(1)of the Constitution conferred power on the President of India togrant pardon, reprieve, respite or remit punishment or suspend, remitor commute the sentence of any convict person convicted of anyoffence – Further with the assurance under ss.432 and 433 of theCr.P.C. which conferred power on the Government to commute thesentence 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 wasarrested by Portguese Police in Lisbon on 18.09.2002 – Thereafter,the appellant’s extradition proceedings started on 28.03.2003 – Heserved sentence from 18.09.2002 to 12.10.2005 when he wasgranted conditional release for the remaining sentence – To completethe detention, he was again imprisoned from 12.10.2005 till10.11.2005 for a month when he was handed over to the Indianauthorities – Appellant claimed that he was entitled to set off as he A

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Awas already in custody for a time period in Portugal – DesignatedCourt, Mumbai did not give benefit of any set off from 18.09.2002till 12.10.2005 – Held: When reference is made in a set off foradjustment of periods, the reference is to proceedings within thecountry – The criminal law of the land does not have any extra-territorial application – Conviction and sentence from 18.09.2002Bin Portugal had nothing to do with the proceedings against him inIndia – However, he was granted conditional release for theremaining sentence on 12.10.2005 – He was again imprisoned from12.10.2005 till 10.11.2005, i.e. when he was handed over to theIndian authorities – From the perspective of detention of the caseCin India, the period commences only on his being detained atPortugal on 12.10.2005, albeit giving him benefit of a little lessthan one month.

Disposing of the appeals, the Court

HELD: 1. The separation of Judicial and Executive powersDand the scheme of the Indian Constitution cannot bind the Indiancourts in proceedings under the Extradition Act. Thus, the courtsmust proceed in accordance with law and impose the sentence asthe law of the land requires, while simultaneously the Executiveis bound to comply with its international obligations under the EExtradition Act as also on the principle of comity of courts, whichforms the basis of the extradition. A reference to the solemnsovereign assurance on 17.12.2002 itself makes it clear that theassurance, which was given on behalf of the Executive in Indiawas that if the appellant was extradited by Portugal for trial in

India, he would not be visited with death penalty or imprisonmentFfor a term beyond 25 years. To achieve this objective themethodology placed before the Portugal Courts was that Article72(1) of the Constitution conferred power on the President ofIndia to grant pardon, reprieve, respite or remit punishment orsuspend, remit or commute the sentence of any convict personGconvicted of any offence. This was with the assurance underSections 432 and 433 of the Cr.P.C. which conferred the poweron the Government to commute the sentence to life imprisonmentwith terms not exceeding 14 years. [Para 39][188-D-G]

2. A significant aspect is that the Courts in Portugal realisedthe constraints of the extent to which the Government of Indiacould give an undertaking considering that the courts in Indiawere independent of Executive control. Thus, it was opined inpara 12.2 of the judgment of the Supreme Court of Portugal dated27.01.2005 that what could be requested was only a guarantee bythe Government of India that should a sentence be imposed higherthan that is specified, the Government of India would take allmeasures to comply with its obligations. As to how the obligationswere to be complied with, was also specified by the Governmentof India in the solemn sovereign assurance dated 17.12.2002, inview of the powers of the President of India under Article 72(1)of the Constitution. The President acts under the aid and adviceof the Government of India under the provisions of Article 74 ofthe Constitution and, thus, the Government of India bound itselfto advice the President of India to commute the sentence to 25years in view of its commitment to the Courts in Portugal. Thesovereign assurance also mentioned Sections 432 and 433 of theCr.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 ofperiods, the reference is to proceedings within the country. Thecriminal law of the land does not have any extra-territorialapplication. Thus, what happens in another country for some othertrial, some other detention would not be relevant for the purposesof the proceedings in India. The factual scenario is that theappellant was charged with having a fake passport. He was foundguilty and convicted of sentence from 18.09.2002. This hadnothing to do with the proceedings against him in India. Hissentence would have been completed on 18.03.2007 de hors theaspect of remission or commutation. However, he was grantedconditional release for the remaining sentence on 12.10.2005.

The mere fact that there was also a detention order under theRed Corner notice was of no significance. He was againimprisoned from 12.10.2005 till 10.11.2005, i.e. when he washanded over to the Indian authorities. The period till 10.12.2005,when he was serving out the sentence, certainly could not havebeen counted. That leaves the period of less than a month only, AB

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Awhich is really more of an academic exercise. The only case whichcould emerge was of taking the date when he was given aconditional release on 12.10.2005. Thus, if one looks from theperspective of detention of the case in India, the periodcommences only on his being detained at Portugal on 12.10.2005,albeit giving him benefit of a little less than one month [Paras 50,B51][193-D-G; 194-A-C]

4. In view of the aforesaid facts and circumstances, thedetention of the appellant commence from 12.10.2005 in thepresent case. On the appellant completing 25 years of sentence,the Central Government is bound to advice the President of IndiaCfor exercise of his powers under Article 72 of the Constitution,and to release the appellant in terms of the national commitmentas well as the principle based on comity of courts. In view thereof,the necessary papers be forwarded within a month of the periodof completion of 25 years sentence of the appellant. In fact, theDGovernment can itself exercise this power in terms of Sections432 and 433 of the Cr.P.C. and such an exercise should also takeplace within the same time period of one month. [Para 54][195-C-D]

Jaswinder Singh (Dead) Through Legal RepresentativeEv. Navjot Singh Sidhu & Ors. 2022 SCC OnLine SC652; State of Maharashtra & Anr. v. Najakat AliMubarak Ali (2001) 6 SCC 311 : [2001] 3 SCR 600;Allan John Waters v. State of Maharashtra & Anr. 2012SCC Online Bom 389; Union of India v. V. Sriharanalias Murugan & Ors. (2016) 7 SCC 1 : [2015] 14FSCR 613; Bhagirath v. Delhi Administration (1985) 2SCC 580 : [1985] 3 SCR 743; Raghbir Singh v. Stateof Haryana (1984) 4 SCC 348 : [1985] 1 SCR 724;Atul Manubhai Parek v. CBI (2010) 1 SCC 603 : [2009]15 SCR 1105 – referred to.

GCase Law Reference

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ABU SALEM ABDUL KAYYUM ANSARI v. THE STATE OFMAHARASHTRA

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.679 of 2015.

From the Judgment and Order dated 25.02.2015 of the DesignatedCourt under the TADA (P) Act for Greater Bombay at Bombay passedin T.A.D.A. Special Case No. 01 of 2006.

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Criminal Appeal No. 180 of 2018

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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 KumarMaroria, Sachin Patil, Rahul Chitnis, Aaditya A. Pande, Geo Joseph,Ms. Shwetal Shepal, Advs. for the Respondent.

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The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

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1. Crime and punishment is something which has agitated thejudicial minds. Punishment cannot be disproportionately high or low. Itshould not be oppressive, but should serve the purpose of deterrenceagainst crimes in a society along with a sense of justice to the victim andtheir family. This is a delicate balance, which has to be kept in mind – anaspect recently discussed in the judgment of this Court in JaswinderSingh (Dead) Through Legal Representative v. Navjot Singh Sidhu& Ors.[1]As was observed in the said case, the principle of just punishmentis the bedrock of sentencing in respect of a criminal offence. We arefaced with a somewhat similar scenario though with certain crucialnuances, which have to be considered.

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Facts :

2. Abu Salem Abdul Kayyum Ansari has a history – and not apalatable one at all. He has been a part of the crime syndicate as isobvious from the facts of the two criminal appeals before us. Criminal H

1 2022 SCC OnLine SC 652

AAppeal No.679/2015 emanates from threatening a party in a civil disputerelating to a property and extracting money, which under threat wasconceded by the litigating party, i.e., Jain brothers. On failure to makethe payment of some instalments of the threat money, one of the Jainbrothers, i.e., Pradeep Jain, was murdered on 07.03.1995. As a resultthe crime was registered at D.N. Nagar Police Station under SectionsB302, 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 ofthe Arms Act, 1959 (hereinafter referred to as the ‘Arms Act’) readwith Sections 3(2)(i), 3(2)(ii), 3(5) and 5 of the Terrorist and DisruptiveActivities (Prevention) Act, 1987 (hereinafter referred to as the ‘TADA’).C

3. The second Criminal Appeal No.180/2018, deals with the factualscenario where the very foundation of the civil society of our countrywas threatened and disrupted by causing bomb explosions at vitalGovernment installations, public and crowded places in Mumbai and itssuburbs (commonly known as the ‘Bombay Bomb Blasts’). Loss of lifeDand loss of properties in enormous amount was the result. The appellantwas alleged to have stored, distributed and transported illegally smuggledAK-56 rifles, hand grenades as well as boxes of magazines from thegodown in Gujarat to Mumbai in a Maruti van which had specially craftedsecret cavities and all this was done after conspiratorial meetings relatingto the blasts. In order to evade the penal consequences of his actions,Ethe appellant left Mumbai and later entered Portugal under an assumedname on a Pakistani passport, which reflects from where the conspiracyand support may have emanated.

4. The appellant could not be arrested for his crime having movedout of the country during the course of the investigation and, thus, theFDesignated Court, Mumbai issued Proclamation No.15777 of 1993 againsthim on 15.09.1993. As the appellant did not appear before the court, hewas declared as a proclaimed offender on 15.10.1993. He was shownas an absconder in the chargesheet dated 04.11.1993. Thereafter,common charge of conspiracy was framed by the Designated Court,GMumbai against all the accused persons on 10.04.1995. The DesignatedCourt, Mumbai issued a non-bailable warrant against the appellant andInterpol Secretariat General, Lyons, France also issued a Red Cornernotice 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 Republicof Portugal was charged with the same and convicted and sentenced on18.09.2002. The said sentence would have been completed on 18.03.2007without taking into consideration any remission or commutation orconditional release. The fact remains that the appellant served thesentence from 18.09.2002 to 12.10.2005 when he was granted conditionalrelease for the remaining sentence.

6. It is during this period of detention that on 18.09.2002, theappellant was also formally detained (already in custody) by thePortuguese Police in Lisbon on the basis of the Red Corner notice. Tocomplete the period of detention, he was again imprisoned from12.10.2005 till 10.11.2005 for a month when he was handed over to theIndian authorities.

Extradition request and Sovereign assurance by theGovernment of India:

7. The Government of India through Mr. Omar Abdullah, whowas the then Minister of State for External Affairs, submitted a requisitionfor extradition dated 13.12.2002 to Portugal in nine criminal cases relyingon the International Convention for the Suppression of Terrorist Bombingsand on an assurance of reciprocity as applicable in international law.Along with the requisition, relevant facts of the cases were enclosed inthe form of duly sworn affidavits of the concerned police officers alongwith supporting documents. Subsequently, the Government of India issueda notification under Section 3(1) of the Extradition Act, 1962 (hereinafterreferred to as the ‘Extradition Act’) applying the provisions of theExtradition Act to Portugal with effect from 13.12.2002.

8. The Government of India further gave a solemn sovereignassurance on 17.12.2002 through the then Deputy Prime Minister, ShriL.K. Advani, to the effect that the Government will exercise its powersconferred by the Indian laws to ensure that if extradited by Portugal fortrial in India, the appellant would not be visited by death penalty orimprisonment for a term beyond 25 years. The assurance reproducedSection 34C of the Extradition Act mandating that in case of extraditionof a fugitive criminal involved in the commission of offences punishablewith death in India, on his surrender, he shall not be liable for deathpenalty and shall be liable for punishment of life imprisonment in placeof death penalty, for the said offence. The sovereign assurance also AB

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Areferred to Article 72(1) of the Constitution of India (hereinafter referredto as the ‘Constitution’) to emphasise that the President of India haspower 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 theCode of Criminal Procedure, 1973 (hereinafter referred to as theB‘Cr.P.C.), which confer power on the Government to commute thesentence of life imprisonment to a term not exceeding 14 years. In away, the relevant constitutional and legal provisions were brought to thenotice of Portugal to give them confidence that there were provisions inIndia which would ensure that the commitments given would be adheredCto.

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 theTADA. The ministerial order, however, declined extradition for offencesDsuch as Sections 201, 212, 324, 326, and 427 of the IPC, Sections 3(4), 5and 6 of the TADA, Sections 4 and 5 of the Explosive Substances Act,1908 (hereinafter referred to the ‘Explosive Substances Act’), Section9-B of the Explosive Act, 1984 and Sections 25(1-A) and (1-B) of theArms Act.

E10. The Ambassador of India in Lisbon gave another solemnassurance on 25.05.2003 that if the appellant is extradited, then:

i. he will not be prosecuted for offences other than those for whichthe extradition was sought, and

ii. he will not be extradited to any third country.F

11. The appellant preferred an appeal against the aforesaidministerial order dated 28.03.2003 before the Court of Appeal, Lisbonand the said Court vide order dated 14.07.2004 allowed the appellant’sextradition for offences mentioned in the request, except those whichare punishable with death or life imprisonment. The Supreme Court ofGPortugal confirmed the aforesaid order of the Court of Appeal, Lisbonon 27.01.2005 in view of the assurance given by the Government ofIndia that the person extradited would not be visited with death penaltyor imprisonment for a term beyond 25 years. The Courts in Portugalgranted extradition for the following offences:

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The Supreme Court of Portugal while emphasising on the “principleof speciality” stated that it cannot be suspected that the appellant will besubjected to trial for committing offences not included in the extraditionrequest.

12. The consequence of the failure of the Indian Government tofulfil its undertaking to impose a sentence as submitted in its assurancewas clearly specified in the aforesaid order dated 27.01.2005, i.e., Portugaleither officiously or upon the interested party’s request, could timelydemand devolution of the appellant. The Court specifically observed inpara 12.2 of its judgment that the Government of India cannot guaranteethat the sentence as assured by the Government of India will be appliedby the Courts in India, in view of the Indian judicial system where theCourts are independent of the Executive. Hence, the Court stated that itcould only request a guarantee that should such sentence be imposed, inorder 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 27.01.2005was rejected by the Constitutional Court of Portugal.

13. The custody of the appellant was handed over to the Indianauthorities on 10.11.2005, the appellant was extradited to India fromPortugal 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 A

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Aconspiracy by adding the appellant’s name in the list of the accusedpersons before the court, by deleting his name from the list of abscondingaccused in the said charge. That brought to an end the saga of ensuringthat the appellant is brought back to India and is tried and sentenced forwhat he had done.

BHistory of Proceedings:

14. It is not necessary in view of the limited pleas urged andexamined in this case to get into a further detailed examination of factsand evidence. Suffice to say that by Criminal Appeal No. 990 of 2006,the appellant first assailed the order dated 13.06.2006 of the DesignatedCCourt, Mumbai, which had separated the trial of the appellant from themain trial as well as a prior order dated 18.03.2006 of the DesignatedCourt, Mumbai, where substantive charges were framed against theappellant for different offences relating to the IPC and TADA. In addition,Criminal Appeals Nos. 1142-1143 of 2007 were filed against the orderframing charges dated 16.04.2007. A writ petition was also filed seekingDquashing of charges and proceedings against him on the ground that thetrial for offences for which he has specifically not been extradited isviolative of the fundamental rights enshrined under Article 21 of theConstitution. This was coupled with the appellant moving an applicationbefore the Court of Appeal, Lisbon which was predicated on the violationEof the assurance given by India as he was sought to be tried in India inviolation of “principle of speciality”.

15. The Court of Appeal in Lisbon passed an order dated18.05.2007 while opining that it did not have the competence to orderthe devolution of the appellant, observed that if the alleged violationsFwere confirmed, it could only justify the accountability of the State (Indiain this case) at an international level, which does not depend on theaction of any Portuguese Court and adequate use of defence by theappellant under Indian laws. On appeal to the Supreme Court of Portugal,the matter was remitted to the Court of Appeal, Lisbon by an orderdated 13.12.2007 to enquire whether violation of the “principle ofGspeciality” had taken place. It further opined that if any violation didtake place, the Court of Appeal, Lisbon would extract all dueconsequences such as declaring the termination of the authorisation forextradition, in which case the presence of the appellant in India wouldhave to be considered illegal. However, the Court of Appeals, LisbonHconsidered it appropriate to defer consideration of the matter till the Supreme Court of India passed a final order in the aforementioned appealsand the writ petition. The Supreme Court of India passed a commonorder dated 10.09.2010 with respect to the aforementioned appeals andthe writ petition and observed that Portugal had not included certainoffences for which charges had been framed against the appellant bythe Designated Court, Mumbai. However, it opined that a bare readingof Section 21 of the Extradition Act indicated that the appellant could betried for lesser offences, in addition to the offences for which he hadbeen extradited. These charges made in addition were punishable withlesser punishment than the offence for which he had been extraditedand, thus, these lesser offences could not be equated with the term “minoroffence” as mentioned in Section 222 of the Cr.P.C. The opinion givenwas that there had been no violation of the “principle of speciality” andthe solemn sovereign assurance given by the Government of India in theletter by the Indian Ambassador dated 25.05.2003.

16. On the aforesaid opinion being delivered of the Supreme Courtof India, the Court of Appeal, Lisbon in its order dated 14.09.2011 heldthat the authorisation granted for the appellant’s extradition ought to beterminated. It was also held that while not considering the limits imposedby Portugal on the appellant’s extradition, India had violated the “principleof speciality”. If the extradition for certain crimes was not admissible inthe 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 asubsequent time, even if it is well founded on different facts. The Courtfurther opined that Law 144/99 of 31 August does not anticipate anyspecific consequences for violation of “principle of speciality”, however,this did not prevent Portugal from calling for intervention of instances ofinternational jurisdiction, drawing due political conclusions from the case,and reacting through political-diplomatic channels, for which the judgmentpassed by the Portuguese Courts would be relevant. However, crimepunishable under Section 3(3) of the TADA had not been expressly orimplicitly excluded by Portugal in the appellant’s extradition and, thus,the same could be imputed on the appellant without violation of “principleof speciality” laid down in Article 16 of Law 144/99 of 31 August, whichreads as under:

“Article 16 – Rule of Speciality

1. The person who, as a consequence ofan act of internationalcooperation appears in Portugal to participate in a penal procedure A

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as a suspect, defendant or convicted person cannot be prosecuted,tried, detained or subjected to any other restriction of his freedomfor a fact prior to his presence on national territory, other than theone which gives rise to the request for cooperation formulated bya Portuguese authority.

2. The person who, under the terms of the number above, appearsbefore a foreign authority cannot be prosecuted, detained or triedor subjected to any other restriction of his freedom for a fact orconviction prior to his leaving the Portuguese territory other thanthose determined in the request for cooperation.

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3. Before the transfer referred to in the number above isauthorised, the State that formulates the request must provide theassurance required for the compliance with the rule of speciality.

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4. The immunity referred to in this article ceases whenever:

a. the person under consideration has the possibility of leavingDthe Portuguese or foreign territory and does not do so within45 days; or

b. He voluntarily returns to one of those territories;

c. After earlier hearing the suspect, defendant or the convictedperson, the State that authorises the transfer gives consent forEthe derogation of the rule of speciality.

5. The provisions of numbers 1 and 2 do not exclude the possibilityof requesting by means of a new request for the extension of thecooperation to facts other than those that laid the foundation forthe previous one, a request which will be submitted and preparedFunder the terms of this legal statute.

6. In the case referred to in the number above, the submission ofproceedings containing the declarations of the person who benefitsfrom 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 theHigh Court situated in the place where the person who benefitsfrom the rule of speciality resides or is present.”

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17. The Union of India filed an appeal before the Supreme CourtHof Portugal, which was dismissed on 11.01.2012 as the Court observed that the non-observance of the “principle of speciality” requires twoorders of consequences in the ambit of international relations – first, themistrust on a State that does not have a credible and reliable behaviourin its international relations, and second, a discredit of the judicial powerthat is used by the institution of extradition in duplicity manner, generatingdoubts on the administration of justice. A further appeal before theConstitutional Court of Portugal was also dismissed on 05.07.2012 and,thus, the termination of appellant’s extradition attained finality. Thererests the story of the extradition proceedings in Portugal.

18. However, the appellant filed Criminal Appeal Nos. 415-416 of2012 before the Supreme Court of India challenging the order of theDesignated Court, Mumbai dated 08.11.2011, which had dismissed theapplications filed by the appellant for stay of all further proceedings inview of the order dated 14.09.2011 passed by the Court of Appeals,Lisbon treating the extradition order dated 28.03.2003 as having beenwithdrawn. The abovementioned appeals were still pending when theCentral Bureau of Investigation (for short ‘CBI’) filed an application forclarification/modification of the judgment and order dated 10.09.2010 ofthe Supreme Court of India and prayed for permission to withdraw certaincharges levelled against the appellant. It was the submission of the CBIthat in the interest of comity of courts and united fight at internationallevel against global terrorism, the Government of India was making furtherefforts through diplomatic talks and the additional charges framed againstthe appellant might come as an impediment in furthering such diplomatictalks. The application of the CBI was allowed by the Supreme Court ofIndia in terms of its order dated 05.08.2013 to the extent of withdrawalof additional charges under Sections 3(3), 5 and 6 of the TADA, Sections4(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 theExplosives Act, 1884. The Court observed that the offences for whichthe appellant was extradited to India are grave enough to award theappellant with maximum punishment and, therefore, it would not bedetrimental to any of the parties. This Court also held that the ministerialorder dated 28.03.2003 stands valid and effective in the eyes of law andthat the Portugal Courts had categorically stated that the Portugueselaw does not provide for any specific consequence for violation of the“principle of speciality”. Thus, the findings of the Portugal Courts maynot be construed as a direction to the Union of India to return the appellantto Portugal but shall serve as a legal basis for the Government of Portugal AB

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Ato seek return of the appellant through political or diplomatic channels,which had not been done till that date according to the then learnedAttorney General. The Court also recorded the then Attorney General’sassurance that they were in the process of withdrawing other chargespending in various States against the appellant, which were claimed tobe in violation of the extradition order. Thus, what the Government ofBIndia sought to do was to bring the legal process fully in conformity withthe extradition order of Portugal albeit belatedly and the consequencesof the termination of the appellant’s extradition attained finality. Thisshowed that the Government of India was conscious of its sovereignassurance and sought to do everything to abide by its assurance at thatCstage.

Trial Court Proceedings:

A. Sovereign Assurance:

19. The State initially pressed for awarding death sentence to theDappellant in Special Case No.1/2006. However, after the arguments ofthe defence, the State submitted that death penalty is out of question inthe appellant’s case but in view of Section 34C of the Extradition Actand Section 302 of the IPC, the appellant was liable to be punished withimprisonment for life. It was urged that the solemn sovereign assurancegiven by the Deputy Prime Ministry of India could not be construed as aEguarantee that no court in India would award the punishment providedby Indian law and the same would, thus, come into play after awardingthe punishment by the Designated Court, Mumbai.

20. On the other hand, the appellant sought to urge that the solemnsovereign assurance given to Portugal was construed as an undertakingFthat no court in India shall award punishment of death or punishment fora period of more than 25 years and a paramount duty had been castupon the Designated Court, Mumbai to enforce the solemn sovereignassurance while awarding the punishment. While conceding that Section34C of the Extradition Act, Section 302 of the IPC and Section 3(2)(i) ofGthe TADA are mandatory in character, the plea was that the hands ofthe Designated Court, Mumbai are tied from awarding punishment formore than 25 years.

21. The Designated Court, Mumbai examined the aforesaidsubmissions and expressed concerns about serious repercussions if adecision was taken contrary to the letter and spirit of Indian law. At theH

same time, the spirit of the solemn sovereign assurance given by theDeputy Prime Minister of India and understood by the Supreme Courtof Justice, Portugal in its judgment dated 27.01.2005 could not be lostsight of as in substance, the principles of comity of courts and respectfor Indian Government and law was in issue. Section 34C of the ExtraditionAct mentioned in the sovereign assurance made it clear that no court inIndia was empowered in the appellant’s extradition to award deathsentence to him and that he could only be liable for life imprisonment.The objective of incorporating Article 72 of the Constitution and Sections432 and 433 of the Cr.P.C. was to assure that the Union of India wouldensure that while executing the sentence or punishment imposed by theCourt in India, the Union of India would exercise its powers and bringdown the punishment consistent with the solemn sovereign assurancegiven to the Government of Portugal.

22. The trial court opined that the sovereign assurance was aplain and simple assurance that death penalty was out of question and ifany other punishment was awarded as per law by Indian Courts, theGovernment of India would exercise the powers under the Constitution,Indian Extradition Act and the Cr.P.C. to bring the punishment inconformity with the assurance. The Government of India was consciousof the principle of the independence of the Judiciary. The sovereignassurance could not have been construed as an assurance of the Courtsof India and, in fact, had not been so construed by the Courts at Portugal.The independence of Judiciary would not support impeding the powersof the Designated Court, Mumbai to exercise its jurisdiction to awardpunishment provided under the law. This is so as the application inawarding the punishment fell within the domain and jurisdiction of thecourt, whereas the execution of the punishment fell within the domainand jurisdiction of the executive and this power of the executive wasindependent and not subject to judicial review.

23. The effect of the aforesaid was that the Judiciary had toperform its functions of imposing sentence in accordance with law, whilethe executive would have to perform its duty by restricting the sentencein 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 ofMaharashtra & Anr . v. Najakat Ali Mubarak Ali[2] and submitted that2 (2001) 6 SCC 311

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Aas per Section 428 of the Cr.P.C., the period of imprisonment undergoneby an accused as an undertrial prisoner during investigation, inquiry ortrial of a particular case, irrespective of whether it was in connection tothat very case, or another case can be set-off for the period of detentionimposed on conviction in that particular case. The appellant, thus,submitted that he was entitled to the benefit of set off as he was alreadyBin custody for a time period in Portugal.

25. On this aspect, the Designated Court, Mumbai opined that theappellant was not kept in detention till 12.10.2005 exclusively pursuantto 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 undergoingCthe sentence awarded to him by the Portuguese Court against thesentence awarded to him in the present case. A set off would amount togranting benefit to the appellant even for the period for which he wassentenced for commission of offences as per Portuguese law in theRepublic of Portugal.D

26. The judgment in Allan John Waters v. State of Maharashtra&Anr.[3]sought to be relied upon by the appellant was distinguished as inthat case the accused was not arrested in USA for commission of offenceunder the laws of USA while in the present case it was so. Theproposition of law in Najakat Ali Mubarak Ali[4] case was also foundEnot applicable. The appellant was arrested on 11.11.2005 and was arrestedin TADA Special Case No.1/2006 later, where the benefit of set off hadbeen granted to him. The appellant would, thus, have the benefit of setoff from that date against the sentence that would be imposed on him.

27. The Designated Court, Mumbai convicted the appellant andFsentenced him under the different provisions of law as reflected in thejudgment, which need not be referred to by us because that does nothave a bearing on the propositions advanced before us.

The Present Proceedings:

28. The appeal was taken up for hearing on 02.02.2022, when theGlearned counsel for the appellant, Mr. Rishi Malhotra made a four-foldsubmission recorded in that order as under:

“1) The stand of the Government of India/State Government (threeappeals have been prosecuted by the State while two other by the 3 2012 SCCOnline Bom 389H4 (supra)

C.B.I.) vis-à-vis the solemn sovereign assurance given by themto the Court in Portugal while seeking extradition of the appellant(on 17.12.2002 and 25.05.2003). In a nutshell it is his submissionthat the imprisonment term cannot extend beyond 25 years as perthe assurance given, even though the TADA Courts said it wasnot bound by the assurances as the judicial system was independentof the executive. He submits that even if the TADA Court doesnot have the power, this Court can pass necessary orders basedon an affidavit to be filed by the Central Government/prosecutingagencies. Learned counsel for the State submits that by and largethey will follow the guidance of the Central Government in thisbehalf but we believe in any case the Central Government/prosecuting agencies may discuss this issue with the StateGovernment to file an appropriate affidavit before us.

2) The period of set-off, as according to the learned counsel forthe appellant(s) he was detained on 18.09.2002 by the Portugalauthorities on account of the look out notice, that should be thereckoning time and not when he was released from the PortugalCourt and taken into custody by the Indian authorities on12.10.2005.

3) The consequences of Portugal Courts withdrawing thepermission for extradition on account of breach of the solemnsovereign assurance given to them.

4) The Merits of the controversy.”

29. He made a submission, which was recorded, that it may bepossible to resolve these appeals if a reasonable stand is taken at leaston the first aspect and on the second aspect, also the authorities mighttake a stand or in the alternative he would endeavour to persuade theCourt. We found that a fair stand was taken by the counsel and calledupon 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 clearstand on behalf of the Government of India as to whether it stood by theinternational commitment made by the former Deputy Prime Minister ofIndia and, thus, called upon the Home Secretary to file an affidavit in thecase.

30. On 21.04.2022, we recorded a detailed order. We went intothe affidavit filed by the Home Secretary, who had emphasised what AB

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Awas only obvious, that it was a dastardly act conducted with pre-meditation in which the appellant played a very active role, was abscondingand brought back to India under the Extradition Act. These powers werestated to be Executive powers which would bind the Executive of therespective States but the Judiciary, as the Constitution of India envisagedwas independent in deciding the cases in accordance with the lawBapplicable. Para 6 of that affidavit referred to the assurance given videletter dated 17.02.2002 as solemn assurance to the Government ofPortugal by the Government of India, while para 7 stated as under:

“It is respectfully submitted that the Government of India is boundby the assurance dated 17.12.2002.The period of 25 years whichCis mentioned in the assurance will be abided by the Union of Indiaat an appropriate time subject to the remedies which may beavailable.”

31. We did not appreciate the underlined portion aforesaid as onceit was recognised that the Government would abide by the assurance,Dnothing 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.

32. The affidavit also averred that the occasion for the Union ofIndia honouring the assurance will arise only when period of 25 yearswas to expire. We noted that we had to take a call on the effect of thatEassurance and we could not postpone the hearing of the appeal on thatbasis, nor was it permissible for the Government to say on an affidavitthat the appellant could not raise this argument. In effect, the affidavitsought to urge this Court to decide the appeal on merits. As to what theCourt will do will be the Court’s own call. If the convict was acceptingFhis 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 histhird and fourth pleas recorded aforesaid stood withdrawn. In view ofthe assurance of the Government of India, he only sought that the sentenceshould be 25 years in terms of the solemn assurance. The other pointsought to be urged and debated before us is the point of set off. TheGappeal 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 wehave recorded aforesaid, i.e., on the two aspects of sovereign assuranceand set off.H

Plea of Sovereign Assurance:

34. The appellant submitted that solemn sovereign assurance dated17.12.2002 categorically mentioned that under Portuguese law, anoffender cannot be extradited to the requesting country if the offencescommitted attract either death penalty or imprisonment for an indefiniteperiod beyond 25 years. The supplementary assurance dated 25.05.2003envisaged that the appellant will not be prosecuted for offences otherthan those for which extradition had been sought. The affidavit submittedby the Home Secretary, Government of India dated 18.04.2022 alsostated that the Government of India was bound by its assurance. Thesesolemn assurances were considered by the Court of Appeals, Lisbon inits judgment dated 14.07.2004 and the Supreme Court of Justice, Portugalin its judgment dated 27.01.2005. It was opined that the rule of traditionalestoppel doctrine as well as International Public Law (for instance,with respect to principle of reciprocity) required that the solemn sovereignguarantees provided by sovereign States are respected in future. Theconsequence of failure to do so gave Portugal the right to timely demanddevolution of the person to be extradited through diplomatic or judicialchannel.

35. The aforesaid aspect has been kept in mind by the DesignatedCourt, Mumbai in its main judgment dated 07.09.2017, wherein it opinedthat India would ensure that while executing the sentence or punishmentimposed by the court in India, it would exercise its power and bringdown the punishment consistent and commensurate with the solemnsovereign assurance.

36. The only real submission in this behalf by the learned counselfor the appellant was that in view of the Constitution Bench decision ofthis Court in Union of India v. V. Sriharan alias Murugan & Ors.[5] ithad been opined that the powers to impose a modified punishmentproviding for any specific term of incarceration lies only either with theHigh Court or the Supreme Court, and not any inferior court. Thus, whatthe counsel urged was that this Court should opine now itself as to whenthe term would end and direct the release of the appellant on expiry ofthat term.

37. On the other hand, learned ASG, Mr. K.M. Nataraj urged thatin the Constitutional Scheme of India, there was a doctrine of separation 5 2016 (7) SCC 1 (paras 104 & 105)

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Aof powers with the Judiciary being independent and, thus, the solemnsovereign assurance given by the Executive was carefully worded suchthat it could not bind the Judiciary while deciding the case on merits. TheExtradition Act enabled the Executive of one State to extradite accused/convicts of another State. These were Executive powers, by only theExecutive of the respective States were bound.B

38. It was sought to be urged that honouring the period of 25years mentioned in the assurance will arise only when the 25 yearswere to expire, i.e., on 10.11.2030 and that the Union of India wouldabide 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 anCargument before the period elapses.

39. We tend to agree with the submissions of the learned ASG onthe larger conspectus, i.e., the separation of Judicial and Executive powersand the scheme of the Indian Constitution cannot bind the Indian courtsin proceedings under the Extradition Act. Thus, the courts must proceedDin accordance with law and impose the sentence as the law of the landrequires, while simultaneously the Executive is bound to comply with itsinternational obligations under the Extradition Act as also on the principleof comity of courts, which forms the basis of the extradition. A referenceto the solemn sovereign assurance on 17.12.2002 itself makes it clearEthat the assurance, which was given on behalf of the Executive in Indiawas that if the appellant was extradited by Portugal for trial in India, hewould not be visited with death penalty or imprisonment for a term beyond25 years. To achieve this objective the methodology placed before thePortugal Courts was that Article 72(1) of the Constitution conferredpower on the President of India to grant pardon, reprieve, respite orFremit punishment or suspend, remit or commute the sentence of anyconvict person convicted of any offence. This was with the assuranceunder Sections 432 and 433 of the Cr.P.C. which conferred the poweron the Government to commute the sentence to life imprisonment withterms not exceeding 14 years. It is also the subsequent solemn assuranceGof the Ambassador of India given on 25.05.2003 that on the appellantbeing extradited, he will not be prosecuted for offences other than thosefor which the extradition was sought and he will not be extradited to anythird country. Insofar as the latter assurance is concerned, it is nobody’ssubsisting case that there is a violation or there can at all be a violation.As far as the first assurance is concerned, there was some ostensibleH

deviation from it, but the ultimate affidavit in the earlier proceedingsbefore the Supreme Court sought to correct it by limiting the trial to theoffences for which he was extradited. That is the reason that thechallenge to the extradition proceedings on account of extradition orderbeing recalled by Portugal Courts was given up before us. No doubtthose proceedings attained finality before the Portugal Courts but it issubsequently in the earlier proceedings before the Supreme Court ofIndia that the Government of India possibly realising the largerconsequences, sought to bring it within the conformity with the order ofthe Portugal Courts.

40. A significant aspect is that the Courts in Portugal realised theconstraints of the extent to which the Government of India could give anundertaking considering that the courts in India were independent ofExecutive control. Thus, it was opined in para 12.2 of the judgment ofthe Supreme Court of Portugal dated 27.01.2005 that what could berequested was only a guarantee by the Government of India that shoulda sentence be imposed higher than that is specified, the Government ofIndia would take all measures to comply with its obligations. As to howthe obligations were to be complied with, was also specified by theGovernment 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 theConstitution. The President acts under the aid and advice of theGovernment of India under the provisions of Article 74 of the Constitutionand, thus, the Government of India bound itself to advice the Presidentof India to commute the sentence to 25 years in view of its commitmentto the Courts in Portugal. The sovereign assurance also mentionedSections 432 and 433 of the Cr.P.C., by which the Government coulditself suspend or remit, and commute the sentence respectively.

41. We do believe that looking into the grievousness of the offencein which the appellant was involved, there is no question for this Courtexercising any special privileges to commute or restrict the period ofsentence of the appellant. In fact, different States in India have followeddifferent patterns before even a case for remission is considered. We,thus, do not accept that the plea of the learned counsel for the appellantbased on the judgment of this Court in Sriharan[6] case.

42. However, we are in agreement with the submissions of thelearned counsel for the appellant and do not accept the contention of the6 (supra)

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Alearned ASG that we should not opine on this aspect at present. Theaffidavit of the Union of India through the Home Secretary is clear, atleast, to the effect that they will abide by the assurance given by theGovernment of India to Portugal. Thus, on completion of the period of25 years of sentence, in compliance of its commitment to the courts inPortugal, it is required that the Government of India advise the PresidentBof India to exercise its powers under Article 72(1) of the Constitution tocommute the remaining sentence, or that the Government of Indiaexercise powers under Sections 432 and 433 of the Cr.P.C. We do believethat there is a necessity of making this time bound so that it does notresult in an unending exercise and, thus, the Government of India mustCexercise the aforesaid powers or render advice on which the Presidentof India is expected to act, within a month of the period of completion ofsentence. We say so also to respect the very basis on which the Courtsof Portugal observed the principles of comity of courts by recognisingthat there is a separation of powers in India and, thus, the Courts cannotgive any assurance. The corresponding principle of comity of courts,Dthus, has to be observed such that the Government of India having giventhe solemn assurance, and having accepted the same before us, is boundto act in terms of the aforesaid. We are, thus, taking a call on this issuenow and do not want to leave it to any uncertainty in future. This is ofcourse subject to any aggravating aspect of the appellant.

EPlea of Set off:

43. The appellant was arrested on 18.09.2002 on the basis of theRed Corner notice. Thereafter, the appellant’s extradition proceedingsstarted on 28.03.2003. The Designated Court, Mumbai did not givebenefit of any set off from 18.09.2002 till 12.10.2005.

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44. Learned counsel for the appellant urged that as per Section428 of the Cr.P.C., an accused person is entitled to set off for the periodof detention undergone by him during any investigation or inquiry andsuch period would be set off against the remainder of the sentence. Itwas also urged that it is immaterial that the appellant was in custody forGsome other case in Portugal and was also serving a sentence there, as itis not the requirement of law that an accused has to be only in exclusivecustody of that particular case for which the set off is claimed. To supportthis proposition learned counsel for the appellant relied upon the followingjudicial pronouncements:

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ABU SALEM ABDUL KAYYUM ANSARI v. THE STATE OFMAHARASHTRA [SANJAY KISHAN KAUL, J.]

i.Allan John Waters[7]: The petitioner therein was arrestedin pursuance of a Red Corner notice on 02.07.2003 andremained in custody till 06.09.2004. The extraditionprocedure had commenced in America and the competentcourt had allowed the extradition to India on 24.11.2003though the petitioner was finally brought to India only on06.09.2004. The Bombay High Court vide its judgment dated13.03.2012 referred to Section 2(h) of Cr.P.C., which defines‘investigation’ and held that all proceedings for collectionof evidence etc., is investigation, and hence the proceedingsadopted by the investigating officer for seeking arrest wasalso part of the investigation. Hence, the detention inAmerica of the appellant in that case was his detentionduring investigation.

ii.Najakat Ali Mubarak Ali[8]: This court observed thatSections 427 and 428 of the Cr.P.C. are intended to provideamelioration to the prisoner. Under Section 427 of theCr.P.C., the sentence of life imprisonment imposed on thesame person in two different convictions would convergeinto one and thereafter it would flow through one streamalone. Even if the sentence in one of those two cases is notimprisonment for life, but only a lesser term, theconvergence will take place and post-convergence flowwould be through the same channel. In all other cases, it isleft to the court to decide whether the sentences in twodifferent 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 ofinvestigation, inquiry or trial of a particular case and waslater convicted and sentenced to any term of imprisonmentin that case, the earlier period of detention undergone byhim should be counted as part of the sentence imposed onhim and it is immaterial if the prisoner was undergoing asentence of imprisonment in another case also during thesaid period.

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Aiii.Bhagirath v. Delhi Administration[9]: The ConstitutionBench held that the assumption that the word “term” underSection 428 of Cr.P.C. implies a concept of ascertainability,or conveys a sense of certainty is contrary to the letter oflaw and hence the period of detention undergone by theaccused as undertrial prisoners shall be set off against theBsentence of life imprisonment imposed on them.

45. The nutshell of the submission was that the set off periodshould commence from 18.09.2002 when the appellant was arrestedpursuant to the Red Corner notice, or at worst from 28.03.2003, i.e., thedate of the ministerial order when extradition was granted to the appellantCfor various offences.

46. On the other hand, learned ASG referred to the fact that theappellant was convicted by the Courts in Portugal for an offencecommitted in Portugal and was serving a sentence which cannot be forthe appellant’s benefit for purposes of Section 428 of the Cr.P.C. TheDperiod undergone by the appellant then was not as an undertrial prisoneras in the present case. In any case, assuming that the Union of India isbound by its assurance, the period would start only from the date theappellantwas handed over to the Indian authorities, i.e., 10.11.2005.

47. Learned ASG also submitted that the convicts sentenced toElife imprisonment are liable to undergo imprisonment for the rest of theirnormal 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, Section428 of the Cr.P.C. applies to a specified term, and not the whole life ofFthe accused as there is no purpose of setting off a few years from thepunishment of life imprisonment. However, no order under Sections 432and433 of the Cr.P.C., Article 72 or 161 of the Constitution has beenpassed in the present case so far and as such Section 428of the Cr.P.C.has no application.

G48. Learned ASG sought to rely upon the judgment of this Courtin Raghbir Singh v. State of Haryana[10], wherein it was held that tosecure the benefit of Section 428 of the Cr.P.C., the prisoner shouldshow that he had been detained in prison for the purpose of investigation, 9 (1985) 2 SCC 580H10 (1984) 4 SCC 348

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 underSection 428 of the Cr.P.C., i.e., the same period being counted as part ofthe period of imprisonment imposed for committing the former offenceand also being set off against the period of imprisonment imposed forcommitting the latter offence as well. This view was also followed inAtul Manubhai Parek v. CBI[11].

49. In the context of the judgment of this Court in Najakat AliMubarak Ali[12] case, it was submitted by learned ASG that the judgmentin Raghbir Singh[13] case was considered, but not overruled. It was urgedbefore us that there is apparently a misreading of the opinion of JusticePhukan as it aligned with the dissenting opinion of Justice R.P. Sethi anddid not concur with Justice K.T. Thomas’s opinion, which had opinedthat any other period, which is not connected with a case cannot be saidto be reckonable for set off. It was submitted that these judgments havealso been mentioned in Atul Manubhai Parek[14] case but the Court hasfollowed the view taken in Raghbir Singh[15] case.

50. On examination of the submissions, we are unable to concurwith 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 foradjustment 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 otherdetention, in our view, would not be relevant for the purposes of theproceedings in the country. The factual scenario is that the appellantwas charged with having a fake passport. He was found guilty andconvicted of sentence from 18.09.2002. This had nothing to do with theproceedings against him in India. His sentence would have beencompleted on 18.03.2007 de hors the aspect of remission orcommutation. However, he was granted conditional release for theremaining sentence on 12.10.2005. The mere fact that there was also adetention order under the Red Corner notice was of no significance. Hewas again imprisoned from 12.10.2005 till 10.11.2005, i.e. when he washanded over to the Indian authorities. The period till 10.12.2005, when 11 (2010) 1 SCC 603

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Ahe 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 ofan academic exercise.

51. We cannot accept the plea of the learned counsel for theappellant that the formal arrest on 18.09.2002 of the appellant under theBRed Corner notice is the date to be taken into reckoning for serving outsentence in the present case or for that matter that the relevant dateshould be 28.03.2003, when the extradition proceeding started. In viewof what we have said, the only case which could emerge was of takingthe 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, theCperiod 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 overthe judgment in Raghbir Singh[16] case, Atul Manubhai Parek[17] caseand Najakat Ali Mubarak Ali[18] case more academic. Suffice for us toDsay that the judgment on this issue in Atul Manubhai Parek[19] casediscusses the earlier two opinions in Raghbir Singh[20] case and NajakatAli Mubarak Ali[21] case to opine that the accused cannot claim a doublebenefit under Section 428 of the Cr.P.C. As already stated, the law wouldhave application within the country and does not have anything to doEwith extra-territorial application where the trial and conviction has takenplace for a local offence, i.e. Portugal in this case.

53. Now turning to Allan John Waters[22] case relied upon bylearned counsel for the appellant, the factual scenario is quite differentfrom the present case. The petitioner there was arrested pursuant to aFRed 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 detentionwas in pursuance of a case in India, the benefit of period in detention inthe USA was given to him. In fact, to that extent we have followed thatprinciple in the present case by giving the benefit of detention period quathe present case and, thus, treated the date of detention in custody fromG16 (supra)17 (supra)18 (supra)19 (supra)20 (supra)21 (supra)H22 (supra)

12.10.2005. We have ignored the formal detention order passed earlierfor the reason that the period the appellant was serving out his sentencein Portugal, in pursuance of a local offence, cannot be a set off againstthe detention in the present case. It is also apparent from the fact that onserving his sentence and getting the benefit of conditional release, hisdetention thereafter was in pursuance of the present proceedings on thesame date of 12.10.2005.

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54. In view of the aforesaid facts and circumstances, we concludethat the detention of the appellant commence from 12.10.2005 in thepresent case. On the appellant completing 25 years of sentence, theCCentral Government is bound to advice the President of India for exerciseof his powers under Article 72 of the Constitution, and to release theappellant in terms of the national commitment as well as the principlebased on comity of courts. In view thereof, the necessary papers beforwarded within a month of the period of completion of 25 years sentenceDof the appellant. In fact, the Government can itself exercise this powerin terms of Sections 432 and 433 of the Cr.P.C. and such an exerciseshould also take place within the same time period of one month.

55. The appeals are accordingly disposed of leaving the parties tobear their own costs.

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Devika Gujral(Assisted by : Shevali Monga, LCRA)

Appeals disposed of.

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