Summary
The appellant, an absconder in the 1993 Bombay blasts, was extradited from Portugal in 2005 after the Deputy Prime Minister assured on 17.12.2002 that he would not face death or imprisonment beyond 25 years, citing Section 34C of the Extradition Act, Article 72 and Sections 432–433 CrPC; the Portuguese courts accepted this as an executive guarantee. Convicted by the TADA court, he sought a 25-year cap and set-off from his arrest in Portugal in 2002. The Supreme Court held the assurance binds the executive, not the courts, which sentence under Indian law; but as the Union affirmed it would honour it, the Central Government must, within a month of his completing 25 years, advise the President under Article 72 or act under Sections 432–433 to release him. Set-off under Section 428 runs only from 12.10.2005, when his Portuguese sentence ended.
Issues
- Whether a sovereign assurance given by the Government of India to a foreign State in extradition proceedings, that the fugitive will not be sentenced to death or to imprisonment beyond 25 years, binds Indian courts in imposing sentence.
- Whether, and how, the Court should give effect to such an assurance which the Union of India affirms it will honour, and whether the question can be deferred until the 25 years expire.
- Whether the period of detention in Portugal from arrest on a Red Corner notice, while serving a sentence for a Portuguese offence, qualifies for set-off under Section 428 CrPC.
Provisions considered
- Sections 3(1), 21 and 34C, Extradition Act, 1962The Act was applied to Portugal by notification; Section 34C ensures a fugitive extradited for an offence punishable with death is liable only to life imprisonment. The Act confers executive powers, binding the executive of the respective States and not the judiciary. The earlier ruling that lesser offences could be tried under Section 21 had led Portugal to terminate the extradition, after which the Union withdrew the additional charges. (¶¶ 7, 8, 15, 18, 37, 39)
- Articles 72(1) and 74, Constitution of IndiaThe assurance identified the President's power of pardon and commutation as the means of honouring the 25-year limit; since the President acts on the aid and advice of the Government, the Government bound itself to advise commutation, and was directed to do so within a month of completion of 25 years. (¶¶ 8, 39, 40, 42, 54)
- Sections 432 and 433, Code of Criminal Procedure, 1973The Government's own power to suspend, remit or commute, also referred to in the assurance, may alternatively be exercised within the same one-month period to give effect to the national commitment. (¶¶ 8, 40, 42, 54)
- Section 428, Code of Criminal Procedure, 1973Set-off refers to proceedings within the country; the criminal law has no extra-territorial application, so detention abroad while serving a sentence for a foreign offence cannot be set off. Only the period from conditional release in Portugal on 12.10.2005, when custody was solely in pursuance of the Indian case, counts. Allan John Waters was distinguished, and the Raghbir Singh, Najakat Ali and Atul Manubhai Parek debate on double benefit became academic. (¶¶ 43, 50, 51, 52, 53, 54)
- Section 3(2), Terrorist and Disruptive Activities (Prevention) Act, 1987Among the offences for which extradition was granted and for which the appellant was convicted by the Designated Court; the gravity of the offences meant the Court would not itself exercise any special power under Sriharan to fix the term of sentence. (¶¶ 9, 11, 41)
Held
- Under the separation of powers in the Indian Constitution the sovereign assurance given by the executive cannot bind the courts in proceedings under the Extradition Act; courts must impose the sentence the law requires, while the executive is simultaneously bound to comply with its international obligations under the Act and on the principle of comity of courts. The Portuguese courts themselves recognised this and sought only a guarantee that the Government would take all measures to comply. (¶¶ 37, 39, 40)
- Given the grievousness of the offences, the Court would not exercise any special privilege under Sriharan to fix or restrict the term of sentence itself; remission patterns differ across States. (¶¶ 36, 41)
- The Union's affidavit that it is bound by the assurance was clear, and its qualification 'subject to the remedies which may be available' was not appreciated; nor could the Government insist that the issue be postponed until 2030 or that the convict be compelled to argue the merits. To avoid an unending exercise and to honour the comity shown by the Portuguese courts, the Government must advise the President under Article 72 or act under Sections 432–433 within one month of completion of 25 years, subject to any aggravating conduct of the appellant. (¶¶ 29, 30, 31, 32, 42, 54)
- The appellant's conviction and sentence in Portugal for travelling on a fake passport, from 18.09.2002, had nothing to do with the Indian proceedings; the formal detention under the Red Corner notice during that sentence was of no significance. Detention for the Indian case commenced on his conditional release on 12.10.2005, giving him the benefit of the month before his handover on 10.11.2005. (¶¶ 50, 51, 53, 54)
Result
Appeals disposed of: detention for set-off to commence from 12.10.2005; on the appellant completing 25 years of sentence the Central Government is bound to advise the President under Article 72, or itself act under Sections 432 and 433 CrPC, within one month, to release him in terms of the national commitment. Parties to bear their own costs.