9911796707
TMI Blog2022 (7) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Code of Criminal Procedure and such an exercise should also take place within the same time period of one month. Appeal disposed off. - HON'BLE JUDGES SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ. For the Appellant : Rishi Malhotra and Vikash Singh, AORs For the Respondents : Sachin Patil, AOR, Rahul Chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss of life and loss of properties in enormous amount was the result. The Appellant was alleged to have stored, distributed and transported illegally smuggled AK-56 rifles, hand grenades as well as boxes of magazines from the godown in Gujarat to Mumbai in a Maruti van which had specially crafted secret cavities and all this was done after conspiratorial meetings relating to the blasts. In order to evade the penal consequences of his actions, the Appellant left Mumbai and later entered Portugal under an assumed name on a Pakistani passport, which reflects from where the conspiracy and support may have emanated. 4. The Appellant could not be arrested for his crime having moved out of the country during the course of the investigation and, thus, the Designated Court, Mumbai issued Proclamation No. 15777 of 1993 against him on 15.09.1993. As the Appellant did not appear before the court, he was declared as a proclaimed offender on 15.10.1993. He was shown as an absconder in the chargesheet dated 04.11.1993. Thereafter, common charge of conspiracy was framed by the Designated Court, Mumbai against all the Accused persons on 10.04.1995. The Designated Court, Mumbai issued a non-bailable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h in India, on his surrender, he shall not be liable for death penalty and shall be liable for punishment of life imprisonment in place of death penalty, for the said offence. The sovereign assurance also referred to Article 72(1) of the Constitution of India (hereinafter referred to as the 'Constitution') to emphasise that the President of India has power to grant pardon, reprieve, respite, or remit punishment or suspend, remit or commute the sentence of any person convicted of any offence. Lastly, the assurance also mentioned that Sections 432 and 433 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.), which confer power on the Government to commute the sentence of life imprisonment to a term not exceeding 14 years. In a way, the relevant constitutional and legal provisions were brought to the notice of Portugal to give them confidence that there were provisions in India which would ensure that the commitments given would be adhered to. 9. The Ministry of Justice, Portugal by its order dated 28.03.2003, admitted the Appellant's extradition for offences such as, inter alia, Section 120-B read with Section 302 of the Indian Penal Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. The consequence of the failure of the Indian Government to fulfil its undertaking to impose a sentence as submitted in its assurance was clearly specified in the aforesaid order dated 27.01.2005, i.e., Portugal either officiously or upon the interested party's request, could timely demand devolution of the Appellant. The Court specifically observed in para 12.2 of its judgment that the Government of India cannot guarantee that the sentence as assured by the Government of India will be applied by the Courts in India, in view of the Indian judicial system where the Courts are independent of the Executive. Hence, the Court stated that it could only request a guarantee that should such sentence be imposed, in order to restrict the sentence, it will resort to all legal measures available, the description of which had already been set out in the request letter. On 13.06.2005, the Appellant's appeal against this order dated 27.01.2005 was rejected by the Constitutional Court of Portugal. 13. The custody of the Appellant was handed over to the Indian authorities on 10.11.2005, the Appellant was extradited to India from Portugal on 11.11.2005 and was arrested on 24.11.2005. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the authorisation for extradition, in which case the presence of the Appellant in India would have to be considered illegal. However, the Court of Appeals, Lisbon considered it appropriate to defer consideration of the matter till the Supreme Court of India passed a final order in the aforementioned appeals and the writ petition. The Supreme Court of India passed a common order dated 10.09.2010 with respect to the aforementioned appeals and the writ petition and observed that Portugal had not included certain offences for which charges had been framed against the Appellant by the Designated Court, Mumbai. However, it opined that a bare reading of Section 21 of the Extradition Act indicated that the Appellant could be tried for lesser offences, in addition to the offences for which he had been extradited. These charges made in addition were punishable with lesser punishment than the offence for which he had been extradited and, thus, these lesser offences could not be equated with the term minor offence as mentioned in Section 222 of the Code of Criminal Procedure. The opinion given was that there had been no violation of the principle of speciality and the solemn sovereign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must provide the assurance required for the compliance with the Rule of speciality. 4. The immunity referred to in this Article ceases whenever: a. the person under consideration has the possibility of leaving the Portuguese or foreign territory and does not do so within 45 days; or b. He voluntarily returns to one of those territories; c. After earlier hearing the suspect, Defendant or the convicted person, the State that authorises the transfer gives consent for the derogation of the Rule of speciality. 5. The provisions of numbers 1 and 2 do not exclude the possibility of requesting by means of a new request for the extension of the cooperation to facts other than those that laid the foundation for the previous one, a request which will be submitted and prepared under the terms of this legal statute. 6. In the case referred to in the number above, the submission of proceedings containing the declarations of the person who benefits from the Rule of speciality is mandatory. 7. In the event of the request being submitted to a foreign State, the cases referred to in the number above, are drawn up by the High Court situated in the place where the person who benefits from the Rule of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h maximum punishment and, therefore, it would not be detrimental to any of the parties. This Court also held that the ministerial order dated 28.03.2003 stands valid and effective in the eyes of law and that the Portugal Courts had categorically stated that the Portuguese law does not provide for any specific consequence for violation of the principle of speciality . Thus, the findings of the Portugal Courts may not be construed as a direction to the Union of India to return the Appellant to Portugal but shall serve as a legal basis for the Government of Portugal to seek return of the Appellant through political or diplomatic channels, which had not been done till that date according to the then learned Attorney General. The Court also recorded the then Attorney General's assurance that they were in the process of withdrawing other charges pending in various States against the Appellant, which were claimed to be in violation of the extradition order. Thus, what the Government of India sought to do was to bring the legal process fully in conformity with the extradition order of Portugal albeit belatedly and the consequences of the termination of the Appellant's extradition a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution and Sections 432 and 433 of the Code of Criminal Procedure was to assure that the Union of India would ensure that while executing the sentence or punishment imposed by the Court in India, the Union of India would exercise its powers and bring down the punishment consistent with the solemn sovereign assurance given to the Government of Portugal. 22. The trial court opined that the sovereign assurance was a plain and simple assurance that death penalty was out of question and if any other punishment was awarded as per law by Indian Courts, the Government of India would exercise the powers under the Constitution, Indian Extradition Act and the Code of Criminal Procedure to bring the punishment in conformity with the assurance. The Government of India was conscious of the principle of the independence of the Judiciary. The sovereign assurance could not have been construed as an assurance of the Courts of India and, in fact, had not been so construed by the Courts at Portugal. The independence of Judiciary would not support impeding the powers of the Designated Court, Mumbai to exercise its jurisdiction to award punishment provided under the law. This is so as the application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date against the sentence that would be imposed on him. 27. The Designated Court, Mumbai convicted the Appellant and sentenced him under the different provisions of law as reflected in the judgment, which need not be referred to by us because that does not have a bearing on the propositions advanced before us. The Present Proceedings: 28. The appeal was taken up for hearing on 02.02.2022, when the learned Counsel for the Appellant, Mr. Rishi Malhotra made a four-fold submission recorded in that order as under: 1) The stand of the Government of India/State Government (three appeals have been prosecuted by the State while two other by the C.B.I.) vis- -vis the solemn sovereign assurance given by them to the Court in Portugal while seeking extradition of the Appellant (on 17.12.2002 and 25.05.2003). In a nutshell it is his submission that the imprisonment term cannot extend beyond 25 years as per the assurance given, even though the TADA Courts said it was not bound by the assurances as the judicial system was independent of the executive. He submits that even if the TADA Court does not have the power, this Court can pass necessary orders based on an affidavit to be filed by the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 17.12.2002. The period of 25 years which is mentioned in the assurance will be abided by the Union of India at an appropriate time subject to the remedies which may be available. 31. We did not appreciate the underlined portion aforesaid as once it was recognised that the Government would abide by the assurance, nothing more or less was to be said. As far as the courts were concerned, they were to take a view as to the effect of that assurance. 32. The affidavit also averred that the occasion for the Union of India honouring the assurance will arise only when period of 25 years was to expire. We noted that we had to take a call on the effect of that assurance and we could not postpone the hearing of the appeal on that basis, nor was it permissible for the Government to say on an affidavit that the Appellant could not raise this argument. In effect, the affidavit sought to urge this Court to decide the appeal on merits. As to what the Court will do will be the Court's own call. If the convict was accepting his guilt, he could not be compelled to urge on the merits of the appeal. Learned Counsel for the Appellant on that date also clearly stated that his third and fourth pleas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied punishment providing for any specific term of incarceration lies only either with the High Court or the Supreme Court, and not any inferior court. Thus, what the counsel urged was that this Court should opine now itself as to when the term would end and direct the release of the Appellant on expiry of that term. 37. On the other hand, learned ASG, Mr. 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 Extradition Act enabled the Executive of one State to extradite Accused/convicts of another State. These were Executive powers, by only the Executive of the respective States were bound. 38. It was sought to be urged that honouring the period of 25 years mentioned in the assurance will arise only when the 25 years were to expire, i.e., on 10.11.2030 and that the Union of India would abide by the period of 25 years at an appropriate time subject to remedies, which may be available and that such a plea cannot be raised as an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court of India that the Government of India possibly realising the larger consequences, sought to bring it within the conformity with the order of the Portugal Courts. 40. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is is of course subject to any aggravating aspect of the Appellant. Plea of Set off: 43. The Appellant was arrested on 18.09.2002 on the basis of the Red Corner notice. Thereafter, the Appellant's extradition proceedings started on 28.03.2003. The Designated Court, Mumbai did not give benefit of any set off from 18.09.2002 till 12.10.2005. 44. Learned Counsel for the Appellant urged that as per Section 428 of the Code of Criminal Procedure, an Accused person is 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. It was also urged that it is immaterial that the Appellant was in custody for some other case in Portugal and was also serving a sentence there, as it is not the requirement of law that an Accused has to be only in exclusive custody of that particular case for which the set off is claimed. To support this proposition learned Counsel for the Appellant relied upon the following judicial pronouncements: i. Allan John Waters (supra): The Petitioner therein was arrested in pursuance of a Red Corner notice on 02.07.2003 and remained in custody till 06.09.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the Appellant was arrested pursuant to the Red Corner notice, or at worst from 28.03.2003, i.e., the date of the ministerial order when extradition was granted to the Appellant for various offences. 46. On the other hand, learned ASG referred to the fact that the Appellant 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 Code of Criminal Procedure The period undergone by the Appellant then was not as an undertrial prisoner as in the present case. In any case, assuming that the Union of India is bound by its assurance, the period would start only from the date the Appellant was handed over to the Indian authorities, i.e., 10.11.2005. 47. Learned ASG also submitted that the convicts sentenced to life imprisonment are liable to undergo imprisonment for the rest of their normal life, subject to power Under Sections 432 and 433 of the Code of Criminal Procedure, or Article 72 or 161 of the Constitution and Section 428 of the Code of Criminal Procedure will be attracted only if and when such power is exercised. Thus, Section 428 of the Code of Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be relevant for the purposes of the proceedings in the country. 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. 51. We cannot accept the plea of the learned Counsel for the Appellant that the formal arrest on 18.09.2002 of the Appellant under the Red Corner notice is the date to be taken into reckoning for serving out sentence in the present case or for that matter that the relevant date should be 28.03.2003, when the extradi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
