Supreme Court Reserves Judgment On Abu Salem's Plea That His Sentence Can't Exceed 25 Years As Per Indian Undertaking To Portugal

Appearing before a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh, Advocate, Mr. Rishi Malhotra, representing Salem, made two broad submissions -

1. In view of the sovereign commitment given to the Portuguese authorities while extraditing Salem, the sentence of life imprisonment imposed by the Trial Court (TADA Court) be modified or read down to 25 years; and
2. The period of detention in Portugal (from 18.09.2002, date of arrest till extradition) which was effected by the Red Corner Notice (RCN) issued by INTERPOL pursuant to the non-bailable warrant issued by the TADA Court in Mumbai, ought to be set-off against the sentence of imprisonment.

Per contra, Additional Solicitor General, Mr. K.M. Nataraj argued that the period of detention in Portugal ought not to be considered for the purpose of setting-off, as Salem was serving sentence in Portugal for violation of Portuguese passport law from the same day (18.09.2002) when he was arrested pursuant to the RCN. Moreover, set-off would be of no consequence when the punishment is that of life imprisonment, which ideally extends to the entirety of one's life.

In June 2017, a Special Terrorism and Disruptive Activities Act (TADA) Court had found Abu Salem and five others guilty of conspiring and carrying out a string of bomb blasts across Mumbai in 1993, which ended up killing 257 people. Abu Salem was convicted for offences punishable under Sections 120B, 302, 307, 326, 427, 435, 436, 201 and 212 of the Indian Penal Code, Sections 3, 3(3), 5, 6 of the Terrorist and Disruptive Activities Rapid Protection Act, and provisions of the Arms Act, Explosive Substances Act and the Prevention of Damage to Public Property Act.

The prosecution had submitted that the conspiracy was hatched in Dubai to avenge the demolition of Babri Masjid that took place on December 6, 1992. Salem transported and distributed arms and ammunitions used in the blast.

In September, 2017, the Mumbai court awarded life imprisonment to extradited gangster Abu Salem.

On 13.12.2002, the Government of India had issued a Gazette Notification in exercise of the 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-III, shall apply to the Portuguese Republic with effect from 13.12.2002. By way of a letter dated 17.12.2002, the then Deputy Prime Minister, Mr. L.K. Advani on behalf of the Government of India assured the Government of Portugal that it will exercise its powers conferred by the Indian Laws to ensure that if extradited by Portugal for trial in India, Salem would not be visited by death penalty or imprisonment for a term beyond 25 years.

"...The Government of India, therefore, on the basis of the provisions of the Constitution of India, the Indian Extradition Act, 1962 and the Code of Criminal Procedure of India, 1973 solemnly assures the Government of Portugal that it will exercise its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, Abu Salem Abdul Qayoom Ansari and Monica Bedi would not be visited by death penalty or imprisonment for a term beyond 25 years."

Subsequently, the Ambassador of India in Lisbon, by letter dated 25.05.2003, gave another assurance that in the event of extradition of the Abu Salem, he will :

(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.

After the request for the extradition of Abu Salem was considered and examined by the authorities in Portugal and by the Court of Appeals, Lisbon, Supreme Court of Justice, Portugal and Constitutional Court of Portugal, extradition of Abu Salem was granted in 8 criminal cases (3 cases prosecuted by CBI, 2 cases by Mumbai Police and 3 cases by Delhi Police).

Accordingly, Salem was extradited on 10.11.2005.

In an affidavit dated 18.04.2022 filed by the Union Home Minister before the Bench, the Union Government conceded that it is bound by the sovereign commitment. However, the same would be adhered to once the term of 25 years expires. The affidavit also urged the Bench to decide the appeal on merit without going into the issue of sovereign commitment, which would be adhered to by the Government of India in accordance with law and subject to the remedies available on the completion of the 25 years.

On the last date of hearing, the Bench expressed that it did not appreciate the tenor of the affidavit in the following terms -

"The affidavit goes on to state that it is legally untenable to club the assurance with the merits of the case and he should argue the appeal on the merits of the case. Thereafter, it is stated that this Hon'ble Court may decide the appeal on merit.

As to what this Court has to do or not to do is for the Court to take a call on. We don't appreciate the tenor of the affidavit. If a convict seeks to accept his guilt and conviction it cannot be said that the Court must hear the appeal on merits…"

Issue of Sovereign Assurance

On Thursday, at the outset, Mr. Malhotra addressed the issue of sovereign assurance given by the Union Government back in 2002. He pointed out that the assurance was required to be given because there is a statutory bar in Portugal against imposition of death penalty and imprisonment for an indefinite term. On the basis of the same, he claimed the application of the law of reciprocity.

"Under Portuguese law there is no question of awarding sentences beyond 25 years. Therefore the principle of reciprocity will come into play…Death Penalty and indefinite life imprisonment is expressedly and absolutely prohibited in Portugal."

Reading relevant portions from the orders of the Court of Appeal, Lisbon and the Supreme Court of Justice, Portugal he submitted that the solemn sovereign guarantee was taken into account by them as well. It was highlighted that the Supreme Court of Justice had held that the sovereign assurance would be binding on future Governments. -

"The SCJ held that the assurance is binding on future Govts. as well."

The consequence of non-adherence to the sovereign assurance as held by the Portuguese Supreme Court is that Portugal would be entitled to demand the revocation and devolution of the same.

"...If the requesting state (India) fails to fulfil its undertaking …then such conditioning shall award the requested state officially or at the request of the interested party the right to demand through diplomatic or judiciary channels devolution of the person to be extradited. "

Mr. Malhotra informed the Bench that Salem's extradition has now been cancelled -

"His extradition has been cancelled. This is the rigour of the SCJ judgment that you have to adhere to the assurance."

It was submitted that even the TADA Court, which sentenced Salem to life imprisonment had noted that the Union Government would exercise power to reduce the sentence consistent with the solemn sovereign assurance.

Referring to the Constitution Bench judgment in Union of India v. Shiharan wherein it was held that the power to impose life imprisonment with a fixed term does not lie with the Trial Court, but with the High Courts and the Supreme Court. In view of the same, he beseeched the Bench to consider reading down the life imprisonment awarded to Salem to 25 years.

Justice Sundresh stated that the Union Government on the last occasion had submitted that sentencing is exclusively in the domain of judiciary. At most the execution can consider the case of remission.

"What they (Union Government) say is if you are convicted for life or death penalty, it is not in our hands, but for the court to decide…Remission power is different and the power of the Court is different."

Justice Kaul added that as per the affidavit, the Union Government had accepted that they are bound by the sovereign assurance, but had also clarified that the occasion to adhere to the same would arise only after Salem undergoes 25 years of imprisonment.

"They say the occasion of exercising the power has not arisen. They would exercise the power of remission after 25 years. They say that let the Court not exercise the power, we would do that."

Justice Sundresh noted that the sovereign assurance was a qualified one, where they have categorically stated in the undertaking that the courts would not be bound by it.

Mr. Malhotra was concerned that leaving it to the executive would set a dangerous precedent given the conduct of the Union Government, which, he claimed, was 'playing high and seek with the requested country'.

Justice Kaul enquired about the prayer that he is seeking in the present matter -

"Should this Court restrict it to 25 years or should it say that the Govt is bound by the solemn assurance?"

Mr. Malhotra submitted that the life sentence imposed by the Trial Court be deemed to be life imprisonment for 25 years.

"What I am beseeching is that instead of life imprisonment imposed by TADA Court, it be read as 25 years. I am not saying 'release me today'."

Justice Kaul was doubtful, if the Bench can read down the sentence in view of the assurance, which has to be adhered to, by exercising executive power akin to remission.

"They say they will abide by the assurance after 25 years. You say the court read it down to 25 years in view of the assurance. But the assurance says, 'we will bring down the sentence in exercise of our executive power.'"

Mr. Malhotra impelled the Bench to modify or read down the sentence of life imprisonment to 25 years taking into account the sovereign assurance.

Mr. Nataraj acknowledged that the Union Government is bound by the sovereign assurance. But, he added that it can be done only in exercise of Section 432 of CrPC or by the Governor in exercise of Article 161 or by the President in exercise of Article 72. He submitted that -

"Sovereign assurance cannot be read into the judicial exercise of power."

Issue of Set-off

Salem was in custody in Portugal on 18.09.2002 for passport law violation. The TADA Court, Mumbai had issued non-bailable warrant, pursuant to which INTERPOL has issued a Red Corner Notice. Salem was also arrested on 18.09.2002 in Lisbon on the strength of the said Red Corner Notice. His extradition process had started on 28.03.2003. Ultimately, the custody was handed over to the Indian Authorities on 10.11.2005.

Mr. Malhotra pointed out that the TADA Court had refused to set-off the period he was detained in Portugal stating that the same was not exclusively for the concerned offences.

"TADA Court says that since I was not exclusively arrested in this case, the period would start from 10.11.2005."

Reference was made to Section 428 of the Cr.P.C., which states that the period of detention undergone during investigation, enquiry or trial of the same case shall be set off against the term of the sentence. He contended that since the arrest was on the basis of the RCN which was issued in pursuance to the issuance of non-bailable warrants by the TADA Court in relation to the concerned offences, the detention period in Portugal ought to be considered for the same offences. To substantiate his argument that the detention in Portugal was for the same offences for which he was extradited and later convicted, he referred to the orders of the Apex Court in the earlier rounds of litigation.

Reliance was placed on State of Maharashtra And Anr. v. Najakat Alia Mubarak wherein a 3-Judge Bench of the Apex Court had opined that for the purpose of set-off the period of detention undergone simultaneously in some other case would also be counted.

"Reading Section 428 of the Code in the above perspective, the words of the same case are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words of the same case were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words."

Justice Sundresh noted -

"The actual right to proceed against you starts from the expedition. Previously, the power was with the Portuguese authorities."

Mr. Malhotra submitted that because Salem was detained by virtue of the RCN as well, the relevant date would be 18.09.2002.

Justice Kaul enquired, "The passport case, did it culminate into conviction. How much time?"

Mr. Malhotra responded, "I was convicted from 18.09.2002 for 4 years."

Justice Sundresh was of the view that the Court has to examine if CrPC can be applied to convictions that had taken place in Portugal under Portuguese law.

"We don't know how to apply Indian law to an offence undergone in Portugal…If we do that it would mean we club CrPC with the law there….can you apply S. 428 to a detention in another country. "

Mr. Malhotra asserted that the present case would not involve such determination, as the detention was subsequent to the RCN and for the same offences for which he was extradited to India. So, the conviction in the passport rules violation case would not have a bearing in deciding the set-off period.

"Suppose I was in custody in Indian court and then TADA Court issues a warrant, and I am arrested wouldn't that term be counted..I was detained for the Red corner notice for the same case. Therefore that period of detention has to be counted. This is not in dispute that the request for extradition is for the same case. It doesn't matter if the enquiry was happening inside or outside India."

"How do you separate the incarceration for the passport issue? Law cannot be applied in abstraction…The decision to detain was by the Portuguese authority," remarked Justice Sundresh.

Mr. Malhotra submitted, "I was detained for the same case, so that period has to be reckoned."

He referred to the decision of the Bombay High Court in Allan John Waters v. State of Maharashtra wherein the detention period in the United States of America prior to extradition was set-off. The relevant portion is as under -

"The question required to be decided is `whether the detention period of the petitioner from 2nd July 2003 to 6th September 2004 in United State of America would amount to his "period of detention" as understood by section 428 of Code of Criminal Procedure, 1973 (Cr.P.C.)?' The facts are admitted and can be stated as under:

Offence under section 377 etc. was registered by Colaba Police Station on 15th November 2001 vide Crime No.312/2001. The name of the petitioner was shown as one of the accused since beginning. The police, therefore, went in search of the petitioner. After investigation, it was learnt that the petitioner had gone out of India and would be found in America etc. Accordingly, the police obtained a warrant of arrest from the concerned Magistrate. It was a red corner notice issued to the Central Bureau of Investigation (C.B.I.).

Pursuant to this notice/ warrant, the petitioner was arrested in America on 2nd July 2003 at New York. He was admittedly not wanted in any other case in America at that time. He was admittedly arrested pursuant to the warrant issued by the Indian Court. Investigation Officer then started procedure for extradition of the petitioner from America to India and pursuant to certain extradition treaty, the competent Court in America allowed extradition of the petitioner to India. This order was passed on 24th November 2003 and on 6th September 2004 the petitioner was finally brought to India. It is, thus, an admitted fact that the petitioner was under the detention of the America Court from 2nd July 2003 to 6th September 2004. The Sessions Court vide order dated 18th March 2006 convicted the petitioner for various offences and sentenced him to suffer rigorous imprisonment. After the petitioner was convicted, the usual order of set off was passed. The said order was not disturbed by the final Court. The question is whether the detention period of the petitioner in America is a period of detention as understood by section 428 of Cr.P.C. Section 428 of Cr.P.C. reads as under:

"428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person ha, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:"

4. It is said that the petitioner was arrested in America during investigation of this crime. The question is what is investigation and the answer would be found in the definition of term `investigation' given in section 2(h) of Cr.P.C., which reads as under:

"2. Definitions.- In this Code, unless the context otherwise requires,-

(a) to (g) ..... ..... ..... ..... .....

(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by in this behalf;

5. Thus, all the proceedings permissible under Cr.P.C., for collection of evidence, is investigation. The moment offence was registered in this case, the investigation started. The police at one hand arrested other accused in this case and also recorded the statement of various witnesses while the petitioner was abroad and eluding his arrest. The investigation was going on. When the police sought arrest warrant against the petitioner, the same was part of investigation and such warrant was issued under the provisions of section 166 read with section 70 of Cr.P.C. The proceedings adopted by the Investigation Officer for seeking arrest warrant against the petitioner was, thus, part of the investigation. Whatever happened subsequent to issuance of warrant was, thus, part of investigation. So arrest of the petitioner pursuant to the said warrant was also part of the investigation. The steps taken by the investigation officer seeking extradition of the petitioner was also part of the investigation. After the petitioner was brought to India whatever steps that were taken in respect of the petitioner such as recording of his statement or making him stand in test identification parade or getting his statement recorded under section 27 of the Evidence Act were all part of the investigation. So, by no stretch of imagination, one can say that the detention of the petitioner in America was not his detention during investigation."

He averred that at the very worst the reckoning period would be from 28.03.2003, i.e. when the extradition process began. It was contended -

"In any eventuality the view of the TADA Court, that set-off started only once I was handed over to Indian authorities, was erroneous."

Controverting the arguments put forth by the petitioner, Mr. Nataraj submitted that in order to invoke Section 428 CrPC, three conditions ought to be fulfilled -

1. It has to be a 'term sentence', not a sentence of life imprisonment which extend to the entire life;
2. It has to be for the same offence;
3. Past sentences cannot be taken into account.

He submitted that in cases of life imprisonment, set-off would be of no consequence because when a sentence to life imprisonment is imposed, it extends to the entire life of the accused.

Justice Kaul reminded him that in the present case the Union Government was bound by an assurance and hence it was imperative to decide a start-off date from which the 25 years would be considered.

Mr Nataraj responded -

"Assuming that it is by virtue of RCN, life imprisonment was given. Once a sentence is of life, unless Section 433 (Power to commute sentence) is exercised, Section 428 would have no application."

Justice Kaul asked Mr. Nataraj how would the Union Government know when they are required to adhere to the assurance.

"In India, after different detention periods remission is considered. Court can direct to consider remission after whatever is the period for the State. Here life means life. But, you have given a solemn assurance. When will you consider the case for remission? How will you count that?...Suppose his case has to be sent for remission after 25 years, then on what date will his case be considered for remission."

Mr. Nataraj vehemently refuted the argument that the detention period in Portugal is to be considered for the purpose of set-off. According to him, the relevant date for set off would be when he was extradited on 10.11.2015.

Justice Kaul enquired -

"Once he is arrested by virtue of RCN issued pursuant to the process of this Court, how is the period counted?...Once a detention takes place in another country in pursuance to a process of this court, how do you set aside that period of detention?...Let us assume there is no case of the passport act, in such a scenario what would have happened to the setting off?"

Mr. Nataraj submitted -

"For Section 438 to be attracted it has to be for the same offence. Here it was not the same case."

Justice Kaul rephrased his query as under -

"The period spent in detention in a foreign country in pursuance to extradition proceedings by virtue of RNC issued by the competent court of India to be counted or not?"

Mr. Nataraj contended that the same period need not be counted.

Thereafter, he referred to the judgments in Atule Manubhai Parekh v. CBI and Raghbir Singh v. State of Haryana, wherein the Court had stated that the benefit of Section 428 would enure to the accused only to set-off the period of detention undergone for the same offence for which the sentence of imprisonment is imposed. He also apprised the Bench that Justice Phukan, who was part of the majority decision in Najakat Ali was also of the view that the Section 428 can be invoked to set-off detention period undergone for the 'same offence'.

He concluded by submitting that -

"...time would start from when he was handed over to us."

[Case Title: Abu Salem Abdul Kayyum Ansari v. The State Of Maharashtra]

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