–Report by Ishika Sehgal

The Supreme Court ruled in ABU SALEM ABDUL KAYYUM ANSARI V. THE STATE OF MAHARASHTRA that the detention of Abu Salem from the 1993 Bombay blasts shall commence from 12.10.2005. After the completion of 25 years, the government will advise the President to exercise the powers given under Article 72 of the Indian Constitution due to national commitment.

FACTS OF THE CASE

There is a history behind Abu Salem Abdul Kayyum Ansari, and it is not a pleasant one at all. According to the facts of the criminal appeals, he was a member of the criminal organization. Due to his departure from the nation during the investigation, the appellant could not be arrested for the offences, and as a result, Proclamation No. 15777 of 1993 was issued by the Designated Court in Mumbai. The Designated Court in Mumbai then filed a common charge of conspiracy against all of the defendants on April 10, 1995. The reality remains that the appellant completed his sentence between September 18, 2002, and October 12, 2005, when he was given conditional release for the balance of his term. During this time in custody, the appellant was also formally taken into custody (by the Portuguese Police in Lisbon) on September 18, 2002, in accordance with the Red Corner notice. When he was turned over to the Indian authorities on October 12, 2005, he was once more imprisoned for a month to finish the imprisonment time. The Government of India requested extradition from Portugal in nine criminal cases under the International Convention through Mr. Omar Abdullah, who was the then-Minister of State for External Affairs. The Supreme Court of Portugal in light of the Government of India’s secured assurance that the extradited would not face the death penalty or a sentence of more than 25 years in jail.

CONTENTIONS OF APPELLANT

According to the appellant, a solemn sovereign assurance dated 17.12.2002 expressly stated that under Portuguese law, an offender cannot be extradited to the requesting nation if the crimes committed carry either the death penalty or an unlimited sentence longer than 25 years.

CONTENTIONS OF RESPONDENT

They contented the solemn sovereign promise given by the Executive was carefully phrased so that it could not bind the Judiciary while resolving the issue on merits because there existed a theory of separation of powers with the Judiciary being autonomous under the Indian Constitutional Scheme. The Extradition Act gave the Executive of one State the ability to extradite suspects and criminals from another State. These were executive powers, and only the individual State’s executive could be bound by them.

JUDGEMENT

The court stated that, given the seriousness of the offense in which the appellant was charged, it would not be appropriate for this Court to exercise any extraordinary powers to reduce the appellant’s sentence or commute it. At least, it is obvious from the affidavit of the Union of India through the Home Secretary that they will abide by the guarantee made to Portugal by the Government of India. The Bench further noted that, in accordance with Sections 432 and 433 of the CrPC, the Central Government may consider remission in the aforementioned one-month period after 25 years had passed. The Central Government is required to advise the President of India to exercise his powers under Article 72 of the Constitution upon the appellant serving out his 25-year sentence and to recommend the appellant’s release in accordance with both the national commitment and the principle based on the comity of courts.