Abu Salem Abdul Kayyum Ansari vs The State of Maharashtra

Criminal Appeal · 2022 INSC 671Decided 11 Jul 2022
Criminal Appeal No. 679 of 2015
Sanjay Kishan Kaul · M.M. Sundresh

Background

Abu Salem, a fugitive linked to organised crime and the 1993 Bombay bomb blasts conspiracy, fled India on a fake Pakistani passport and was later convicted and imprisoned in Portugal for that passport offence. India sought his extradition for the 1995 murder of Pradeep Jain (an extortion victim) and for the bomb blasts case, and the Government of India gave Portugal a solemn sovereign assurance, through the Deputy Prime Minister and reflecting Section 34C of the Extradition Act, that Salem would not face the death penalty or imprisonment beyond 25 years if extradited. Portugal's courts granted extradition only on this condition, and Salem was handed over to India in November 2005. Years later, disputes arose over (i) whether his death sentence for the murder conviction could stand given the 25-year assurance, and (ii) from what date his 25-year sentence should be calculated: specifically whether time spent in Portuguese custody (both serving his passport-offence sentence and under the Red Corner notice) should count toward the 25 years.

Decision Breakdown

The Court held that under Section 428 CrPC, only detention connected to the Indian proceedings can be set off against an Indian sentence: time served for an unrelated offence abroad (his Portuguese passport conviction) cannot be counted, since criminal law does not have extra-territorial application and set-off cannot give a "double benefit." It rejected Salem's argument that his formal detention date under the Red Corner notice (18.09.2002) should be the starting point, since during that period he was still serving out his separate Portuguese sentence. Instead, the Court held that his 25-year sentence period must be reckoned from 12 October 2005: the date he was granted conditional release from the Portuguese sentence and his detention became solely referable to the Indian extradition proceedings, following the reasoning from Allan John Waters. Given India's binding sovereign assurance to Portugal, the Court directed that on completion of 25 years from that date, the Central Government must place the matter before the President under Article 72 (or exercise its own remission powers under Sections 432/433 CrPC) to ensure his release, in line with international comity and the national commitment made to secure his extradition.

Lesson Learnt

A sovereign assurance given by India to a foreign country to secure someone's extradition is legally binding and must be honoured even years later; and time spent in foreign custody for an unrelated conviction cannot be credited against a later Indian sentence, only detention genuinely connected to the Indian case counts for such set-off.

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