Govt Bound To Act In Terms Of Its Solemn Assurance- SC While Directing Abu Salem's Release On Completion Of 25 Years Of Sentence

"The corresponding principle of comity of courts, thus, has to be observed such that the Government of India having given the solemn assurance, and having accepted the same before us, is bound to act in terms of the aforesaid", the Supreme Court has held while directing that the sentence of life imprisonment on Abu Salem, a convict in the Bombay Blast Case, be commuted on completion of the period of 25 years of his sentence.

"Thus, on completion of the period of 25 years of sentence, in compliance of its commitment to the courts in Portugal, it is required that the Government of India advise the President of India to exercise its powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercise powers under Sections 432 and 433 of the Cr.P.C.", the Bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh held.

The Court also ordered that the necessary papers be forwarded within a month of the period of completion of 25 years sentence of the appellant-Abu Salem.

Abu Salem was involved in the 1993 Bombay Bomb Blast Case. It was alleged that he had stored, distributed and transported illegally smuggled AK-56 rifles, hand grenades. In order to evade the penal consequences of his actions, he left Mumbai and later entered Portugal under an assumed name on a Pakistani passport. Having travelled on a fake passport to the Republic of Portugal Abu Salem was charged with the same and convicted and sentenced.

During the period of his detention, he was also formally detained (already in custody) by the Portuguese Police in Lisbon on the basis of the Red Corner notice. To complete the period of detention, he was again imprisoned in 2005 for a month when he was handed over to the Indian authorities.

Notably, the Government of India had given Portugal a solemn sovereign assurance to the effect that the Government will exercise its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, the appellant-Abu Salem would not be visited by death penalty or imprisonment for a term beyond 25 years.

Counsel for Abu Salem, Rishi Malhotra, submitted that the solemn sovereign assurance had categorically mentioned that under Portuguese law, an offender cannot be extradited to the requesting country if the offences committed attract either the death penalty or imprisonment for an indefinite period beyond 25 years.

It was urged that the supplementary assurance had envisaged that the appellant will not be prosecuted for offences other than those for which extradition had been sought.

He urged that the Court should opine as to when the term would end and direct the release of the appellant on the expiry of that term.

On the other hand Additional Solicitor General, K.M. Nataraj urged that in the Constitutional Scheme of India, there was a doctrine of separation of powers with the Judiciary being independent and, thus, the solemn sovereign assurance given by the Executive was carefully worded such that it could not bind the Judiciary while deciding the case on merits.

The Court noted that the affidavit of the Union of India was clear to the effect that they will abide by the assurance given by the Government of India to Portugal. Accordingly, the Court ordered that on completion of the period of 25 years of sentence, the Government of India shall advise the President of India to exercise its powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercise powers under Sections 432 and 433 of the Cr.P.C.

The Court observed that the aforesaid should be made time bound and hence held that "...the Government of India must exercise the aforesaid powers or render advice on which the President of India is expected to act, within a month of the period of completion of sentence."

The Counsel for the Abu Salem also raised the plea of set off. Notably, Abu Salem was arrested on 18th September 2002 on the basis of the Red Corner notice. Thereafter, his extradition proceedings started on 28th March 2003. The Designated Court, Mumbai did not give benefit of any set off from 18th September 2002 till 12th October 2005.

He urged that as per Section 428 of the Cr.P.C., an accused person was entitled to set off for the period of detention undergone by him during any investigation or inquiry and such period would be set off against the remainder of the sentence.

To this Additional Solicitor General, K.M. Nataraj pointed out that the appellant-Abu Salem was convicted by the Courts in Portugal for an offence committed in Portugal and was serving a sentence which cannot be for the appellant's benefit for purposes of Section 428 of the Cr.P.C.

He argued that the period undergone by Abu Salem then was not as an undertrial prisoner as in the present case.

On the plea of set off the Court observed that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country. The Court noted that Abu Salem was charged and convicted for fake passport in Portugal which had nothing to do with the proceedings against him in India.

The Court observed that the period he was serving out his sentence in Portugal, in pursuance of a local offence, cannot be a set off against the detention in the present case.

"In view of the aforesaid facts and circumstances, we conclude that the detention of the appellant commence from 12.10.2005 in the present case. On the appellant completing 25 years of sentence, the Central Government is bound to advice the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment as well as the principle based on comity of courts. In view thereof, the necessary papers be forwarded within a month of the period of completion of 25 years sentence of the appellant. In fact, the Government can itself exercise this power in terms of Sections 432 and 433 of the Cr.P.C. and such an exercise should also take place within the same time period of one month.", the Court held while disposing of the appeal.

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