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 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 extraterritorial 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]
2. A significant aspect is that the Courts in Portugal realised the constraints of the extent to which the Government of India could give an undertaking considering that the courts in India were independent of Executive control. Thus, it was opined in para 12.2 of the judgment of the Supreme Court of Portugal dated 27.01.2005 that what could be requested was only a guarantee by the Government of India that should a sentence be imposed higher than that is specified, the Government of India would take all measures to comply with its obligations. As to how the obligations were to be complied with, was also specified by the Government of India in the solemn sovereign assurance dated 17.12.2002, in view of the powers of the President of India under Article 72(1) of the Constitution. The President acts under the aid and advice of the Government of India under the provisions of Article 74 of the Constitution and, thus, the Government of India bound itself to advice the President of India to commute the sentence to 25 years in view of its commitment to the Courts in Portugal. The sovereign assurance also mentioned Sections 432 and 433 of the Cr.P.C., by which the Government could itself suspend or remit, and commute the sentence respectively. [Para 40][189-C-F]
3. 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. Thus, what happens in another country for some other trial, some other detention would not be relevant for the purposes of the proceedings in India. The factual scenario is that the appellant was charged with having a fake passport. He was found guilty and convicted of sentence from 18.09.2002. This had nothing to do with the proceedings against him in India. His sentence would have been completed on 18.03.2007 de hors the aspect of remission or commutation. However, he was granted conditional release for the remaining sentence on 12.10.2005. The mere fact that there was also a detention order under the Red Corner notice was of no significance. He was again imprisoned from 12.10.2005 till 10.11.2005, i.e. when he was handed over to the Indian authorities. The period till 10.12.2005, when he was serving out the sentence, certainly could not have been counted. That leaves the period of less than a month only, which is really more of an academic exercise. The only case which could emerge was of taking the date when he was given a conditional release on 12.10.2005. Thus, if one looks 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 [Paras 50, 51][193-D-G; 194-A-C]
4. In view of the aforesaid facts and circumstances, 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. [Para 54][195C-D] Jaswinder Singh (Dead) Through Legal Representative v. Navjot Singh Sidhu & Ors. 2022 SCC OnLine SC 652; State of Maharashtra & Anr. v. Najakat Ali Mubarak Ali (2001) 6 SCC 311 : [2001] 3 SCR 600; Allan John Waters v. State of Maharashtra & Anr. 2012 SCC Online Bom 389; Union of India v. V. Sriharan alias Murugan & Ors. (2016) 7 SCC 1 : [2015] 14 SCR 613; Bhagirath v. Delhi Administration (1985) 2 SCC 580 : [1985] 3 SCR 743; Raghbir Singh v. State of Haryana (1984) 4 SCC 348 : [1985] 1 SCR 724; Atul Manubhai Parek v. CBI (2010) 1 SCC 603 : [2009]
15 SCR 1105 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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