ABU SALEM ABDUL KAYYUM ANSARI versus THE STATE OF MAHARASHTRA

Citation: [2022] 12 S.C.R. 169 · Decided: 11-07-2022 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Disposed off

cites 5 · see the full citation network in Lexace

Judgment (excerpt)

A
B
C
D
E
F
G
H
169
ABU SALEM ABDUL KAYYUM ANSARI
v.
THE STATE OF MAHARASHTRA
(Criminal Appeal No. 679 of 2015)
JULY 11, 2022
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Extradition Act, 1962: Sovereign assurance – In the instant
case, appellant was extradited from the Republic of Portugal and
custody of the appellant was handed over to Indian authorities –
Government of India submitted a solemn sovereign assurance under
the Portuguese law that appellant would not be convicted by death
penalty or imprisonment for a term beyond 25 years – Trial Court
convicted the appellant and sentenced him under the different
provisions of law – Held: Separation of Judicial and Executive
powers and the scheme of the Indian Constitution cannot bind the
Indian courts in proceedings under the Extradition Act – Thus, the
courts must proceed in accordance with law and impose the sentence
as the law of the land requires, while simultaneously the Executive
is bound to comply with its international obligations under the
Extradition Act – To achieve the objective of solemn assurance the
methodology placed before the Portugal Courts was that Art.72(1)
of the Constitution conferred power on the President of India to
grant pardon, reprieve, respite or remit punishment or suspend, remit
or commute the sentence of any convict person convicted of any
offence – Further with the assurance under ss.432 and 433 of the
Cr.P.C. which conferred power on the Government to commute the
sentence to life imprisonment with terms not exceeding 14 years.
Code of Criminal Procedure, 1973: s.428 – Plea of set off –
Appellant was charged for travelling on a fake passport and was
arrested by Portguese Police in Lisbon on 18.09.2002 – Thereafter,
the appellant’s extradition proceedings started on 28.03.2003 – He
served sentence from 18.09.2002 to 12.10.2005 when he was
granted conditional release for the remaining sentence – To complete
the detention, he was again imprisoned from 12.10.2005 till
10.11.2005 for a month when he was handed over to the Indian
authorities – Appellant claimed that he was entitled to set off as he
[2022] 12 S.C.R. 169
169
A
B
C
D
E
F
G
H
170
SUPREME COURT REPORTS
[2022] 12 S.C.R.
was already in custody for a time period in Portugal – Designated
Court, Mumbai did not give benefit of any set off from 18.09.2002
till 12.10.2005 – Held: When reference is made in a set off for
adjustment of periods, the reference is to proceedings within the
country – The criminal law of the land does not have any extra-
territorial application – Conviction and sentence from 18.09.2002
in Portugal had nothing to do with the proceedings against him in
India – However, he was granted conditional release for the
remaining sentence on 12.10.2005 – He was again imprisoned from
12.10.2005 till 10.11.2005, i.e. when he was handed over to the
Indian authorities – From the perspective of detention of the case
in India, the period commences only on his being detained at
Portugal on 12.10.2005, albeit giving him benefit of a little less
than one month.
Disposing of the appeals, the Court
HELD: 1. The separation of Judicial and Executive powers
and the scheme of the Indian Constitution cannot bind the Indian
courts in proceedings under the Extradition Act. Thus, the courts
must proceed in accordance with law and impose the sentence as
the law of the land requires, while simultaneously the Executive
is bound to comply with its international obligations under the
Extradition Act as also on the principle of comity of courts, which
forms the basis of the extradition. A reference to the solemn
sovereign assurance on 17.12.2002 itself makes it clear that the
assurance, which was given on behalf of the Executive in India
was that if the appellant was extradited by Portugal for trial in
India, he would not be visited with death penalty or imprisonment
for a term beyond 25 years. To achieve this objective the
methodology placed before the Portugal Courts was that Article
72(1) of the Constitution conferred power on the President of
India to grant pardon, reprieve, respite or remit punishment or
suspend, remit or commute the sentence of any convict person
convicted of any offence. This was with the assurance under
Sections 432 and 433 of the Cr.P.C. which conferred the power
on the Government to commute the sentence to life imprisonment
with terms not exceeding 14 years. [Para 39][188-D-G]
A
B
C
D
E
F
G
H
171
2. A significant aspect is that the Courts in Portugal realised
the constr

Excerpt shown. Read the full judgment & AI analysis in Lexace.