Extradition assurance and foreign custody set-off: Executive must honour the promise, but separate foreign detention is excluded.

In extradition matters, the judiciary sentences according to law, but the Executive remains bound by its sovereign assurance to the requesting State and must take steps to secure commutation or remission so the sentence does not extend beyond the assured 25-year period, with action required within one month after completion of that term. Section 428 of the Code of Criminal Procedure applies only to detention undergone in connection with the Indian case for which the accused is ultimately convicted and sentenced. Custody in Portugal for a separate local offence was not available as set-off, and the detention for the Indian proceedings was reckoned from 12.10.2005.

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Issues: (i) Whether the sovereign assurance given to the requesting State required the Union of India to act to ensure that the sentence did not exceed 25 years and to take consequential steps on completion of that period. (ii) Whether the period spent in custody in Portugal could be counted as set-off under Section 428 of the Code of Criminal Procedure, 1973.

Issue (i): Whether the sovereign assurance given to the requesting State required the Union of India to act to ensure that the sentence did not exceed 25 years and to take consequential steps on completion of that period.

Analysis: The assurance was given by the Executive in the context of extradition and was founded on the constitutional and statutory powers available to the Union of India. The courts in India were not bound by the assurance at the stage of imposing sentence, but the Executive remained bound to honour its international commitment. The assurance, read with the cited constitutional and statutory provisions, required the Union of India to take steps to secure commutation or remission so that the sentence did not continue beyond the assured period. To avoid uncertainty, the obligation was directed to be acted upon within a fixed time after completion of the 25-year period.

Conclusion: The assurance is binding on the Union of India at the executive level, and appropriate steps must be taken within one month after completion of 25 years of sentence.

Issue (ii): Whether the period spent in custody in Portugal could be counted as set-off under Section 428 of the Code of Criminal Procedure, 1973.

Analysis: Section 428 applies to detention undergone in connection with the case for which the accused is ultimately convicted and sentenced. The detention in Portugal was for a local offence relating to the foreign conviction and sentence, and not for the Indian proceedings. Foreign custody for an unrelated local prosecution could not be treated as detention in the present case. The relevant period for the Indian case therefore commenced only when the appellant was held for the present proceedings after conditional release in Portugal.

Conclusion: The pre-extradition custody in Portugal was not available as set-off, and the detention for the Indian case commenced on 12.10.2005.

Final Conclusion: The appeals were disposed of by recognising the Union of India's obligation to honour the extradition assurance after the sentence period and by rejecting the claim for set-off of the foreign imprisonment period, with detention in the present case reckoned from 12.10.2005.

Ratio Decidendi: In extradition matters, the judiciary must sentence according to law while the Executive remains bound to honour its sovereign assurance through the constitutional and statutory powers available to it; foreign custody for a separate local offence does not count as set-off under Section 428 for the Indian case.

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