2022 Supreme(SC) 576

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, M.M. SUNDRESH, JJ.
Abu Salem Abdul Kayyum Ansari - Appellant
Versus
The State Of Maharashtra - Respondent
Criminal Appeal No. 679 of 2015 With Criminal Appeal No.180 of 2018
Decided on : 11-07-2022

IMPORTANT POINTS
(1) Sentence – Law would have application within country and does not have anything to do with extra-territorial application where trial and conviction has taken place for a local offence.
(2) Sentence – Principle of just punishment is bedrock of sentencing in respect of a criminal offence – This is a delicate balance which has to be kept in mind.
(3) Sentence – Separation of Judicial and Executive powers and scheme of Indian Constitution cannot bind Indian courts in proceedings under Extradition Act – Courts must proceed in accordance with law and impose sentence as law of land requires.

Headnote:

(A) Criminal Law – Sentence – Principle of just punishment is bedrock of sentencing in respect of a criminal offence – Punishment cannot be disproportionately high or low – It should not be oppressive, but should serve purpose of deterrence against crimes in a society along with a sense of justice to victim and their family – This is a delicate balance which has to be kept in mind. (Para 1)

(B) Criminal Procedure Code, 1973 – Sections 432 and 433 – Extradition Act, 2003 – Section 3(1) – Sentence – Separation of Judicial and Executive powers and scheme of Indian Constitution cannot bind Indian courts in proceedings under Extradition Act – Courts must proceed in accordance with law and impose sentence as law of land requires, while simultaneously Executive is bound to comply with its international obligations under Extradition Act as also on principle of comity of courts which forms basis of extradition – President acts under aid and advice of Government of India under provisions of Article 74 of Constitution and Government of India bound itself to advise President of India to commute sentence to 25 years in view of its commitment to Courts in Portugal – Sovereign assurance also mentioned Sections 432 and 433 of Cr.P.C., by which Government could itself suspend or remit, and commute the sentence respectively – On completion of period of 25 years of sentence, in compliance of its commitment to courts in Portugal, it is required that Government of India advise President of India to exercise its powers under Article 72(1) of Constitution to commute remaining sentence, or that Government of India exercise powers under Sections 432 and 433 of Cr.P.C. (Paras 39, 40 and 42)

(C) Criminal Procedure Code, 1973 – Section 428 – Constitution of India – Article 72 – Set-off in sentence – When reference is made in a set off for adjustment of periods, reference is to proceedings within country – Criminal law of land does not have any extra-territorial application – What happens in another country for some other trial, some other detention, would not be relevant for the purposes of proceedings in country – 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 proceedings against him in India – His sentence would have been completed on 18.03.2007 de hors aspect of remission or commutation – However, he was granted conditional release for remaining sentence on 12.10.2005 – Mere fact that there was also a detention order under 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 Indian authorities – Period till 10.12.2005, when he was serving out sentence, could not have been counted – On appellant completing 25 years of sentence, Central Government is bound to advise President of India for exercise of his powers under Article 72 of Constitution, and to release appellant in terms of national commitment as well as principle based on comity of courts. (Paras 50 and 54)

Facts of the case:

Abu Salem Abdul Kayyum Ansari has a history and not a palatable one at all. He has been a part of the crime syndicate. Criminal Appeal No.679/2015 emanates from threatening a party in a civil dispute relating to a property and extracting money, which under threat was conceded by the litigating party, i.e., Jain brothers. On failure to make payment of some instalments of the threat money, one of the Jain brothers, i.e., Pradeep Jain, was murdered on 07.03.1995. As a result crime was registered at D.N. Nagar Police Station under Sections 302, 307, 452, 506(ii) read with Section 120-B of the Indian Penal Code, 1860, read with Sections 5, 27 of Arms Act, 1959 read with Sections 3(2)(i), 3(2)(ii), 3(5) and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987.

Findings of Court:

Only case which could emerge was of taking the date when he was given a conditional release on 12.10.2005. If one looks from the perspective of detention of the case in India, period commences only on his being detained at Portugal on 12.10.2005, albeit giving him benefit of a little less than one month.

Result : Appeals disposed of with directions.