2022 (7) TMI 1511 - SC - Indian Laws

Foreign detention irrelevant for sentence set-off; only custody after handover to Indian authorities counts under criminal law

Abu Salem Abdul Kayyum Ansari Versus The State of Maharashtra

The SC addressed set-off periods for detention in criminal proceedings, ruling that criminal law lacks extra-territorial application and foreign ... Principle of just punishment - threatening a party in a civil dispute relating to a property and extracting money, which under threat was conceded by the litigating party - HELD THAT:- It cannot be lost sight that 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 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. 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 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. Issues Involved:1. Sovereign assurance and its implications on sentencing.2. Set-off period for detention.Issue-wise Detailed Analysis:Sovereign Assurance:1. Background and Context:The appellant was extradited from Portugal based on a solemn sovereign assurance given by the Government of India. This assurance stated that the appellant would not face the death penalty or imprisonment for a term exceeding 25 years. The assurance was necessary to comply with Portuguese law, which prohibits extradition if the offenses attract either death penalty or indefinite imprisonment.2. Judicial Interpretation:The Designated Court, Mumbai acknowledged the sovereign assurance but emphasized the independence of the judiciary from the executive. The court opined that while it could impose sentences as per Indian law, the executive would need to ensure compliance with the international assurance through constitutional powers (Article 72) and statutory provisions (Sections 432 and 433 of the Cr.P.C.).3. Supreme Court's Stance:The Supreme Court of India upheld the principle that the judiciary is independent and must impose sentences as per Indian law. However, it recognized the executive's commitment to the sovereign assurance. The court directed that upon completion of 25 years of the appellant's sentence, the Government of India must advise the President to commute the remaining sentence, or exercise its powers under Sections 432 and 433 of the Cr.P.C. This action must be taken within one month of the completion of the 25-year period.Set-off Period for Detention:1. Appellant's Argument:The appellant argued for set-off under Section 428 of the Cr.P.C., claiming that the period of detention in Portugal (from 18.09.2002, the date of arrest under the Red Corner notice) should be considered as part of the sentence served in India.2. Designated Court's Decision:The Designated Court, Mumbai denied the set-off for the period the appellant was serving a sentence in Portugal for offenses committed there. The court reasoned that granting set-off for the period of detention in Portugal would be inappropriate as it was for a different offense.3. Supreme Court's Analysis:The Supreme Court agreed with the Designated Court's view, stating that the period of detention in Portugal for an unrelated offense could not be considered for set-off under Indian law. The court clarified that the relevant period for set-off would commence from 12.10.2005, the date when the appellant was conditionally released in Portugal and detained for extradition to India.4. Legal Precedents:The court distinguished the present case from others like Allan John Waters and Najakat Ali Mubarak Ali, noting that those cases involved detention directly related to the Indian offenses. The court emphasized that Indian criminal law does not have extra-territorial application and thus, detention for local offenses in another country cannot be set-off against the sentence for offenses in India.Conclusion:The Supreme Court concluded that the appellant's detention for the Indian offenses commenced from 12.10.2005. Upon completion of 25 years of sentence, the Government of India is obligated to advise the President to commute the remaining sentence or exercise its powers under Sections 432 and 433 of the Cr.P.C. within one month. The appeals were disposed of with these directions, ensuring the appellant's sentence aligns with the international assurance given to Portugal.