The Bombay High Court has held that where the Supreme Court, in view of a sovereign assurance furnished by the Government of India to a foreign State in extradition proceedings, restricts a life sentence to a maximum period of 25 years, that 25-year period constitutes the substantive minimum period of incarceration and cannot be automatically reduced by ordinary jail remissions earned under prison rules.
The Court clarified that such earned remissions are administrative in nature and do not ipso facto curtail the sentence imposed by Court; any reduction can only follow from the exercise of statutory powers under Sections 432 and 433 of the CrPC, and that exercise is to be undertaken one month prior to completion of the 25-year period in accordance with the Supreme Court’s directions.
Accordingly, the 25-year cap arising from sovereign assurance and extradition obligation cannot be read as a notional or remission-reducible term, and the convict is not entitled to release before expiry of that 25-year period merely by aggregating undertrial custody, post-conviction incarceration and earned remission, added the Court.
The Division Bench comprising Justice A. S. Gadkari and Justice Kamal Khata accepted the submissions advanced on behalf of the Union of India, the State and the CBI, and held that the core controversy lay in the interpretation of the “25-year” sentence imposed by the Supreme Court. The Bench observed that the said period constituted the substantive sentence required to be undergone by the Petitioner and was not a ceiling capable of reduction by application of ordinary prison remissions.
According to the Bench, the Supreme Court, while taking note of the sovereign assurance given to the Government of Portugal, had restricted the Petitioner’s incarceration to a maximum of 25 years, and the executive direction was only to consider exercise of statutory powers under Sections 432 and 433 of the CrPC one month prior to completion of that period.
The Bench specifically held that the Petitioner’s attempt to include “earned remissions” to shorten the 25-year cap was legally unsustainable. It observed that the 25-year limit itself functioned as a massive remission to a life sentence, necessitated by international treaty obligations, and that permitting further ordinary jail remissions to reduce this already capped 25-year period would violate the spirit of the Supreme Court’s directions.
The Bench reiterated that remission earned under prison rules is administrative in nature and does not ipso facto reduce the sentence imposed by a Court, and that any reduction in sentence must follow from an order passed in exercise of statutory powers under Sections 432 or 433 of the CrPC. It then observed that the present case arose from a life sentence, the duration of which had been restricted to 25 years in view of sovereign assurances, and that in such circumstances the period from 2005 to 2017 as undertrial was pre-trial detention and the 25 years included that period. However, the Petitioner could not claim an automatic reduction of that 25-year term by inclusion of earned remissions.
The Bench also upheld the TADA Court’s order dated December 10, 2024, noting that the TADA Court had rightly observed that the Supreme Court’s directions regarding the 25-year period were clear and that the Petitioner remained a convict undergoing sentence for heinous crimes against the State.
Further, the Bench held that the present case did not involve a fixed term sentence in that ordinary sense, because the Government of India had, on the basis of the Constitution, the Extradition Act, 1962 and the Code of Criminal Procedure, solemnly assured the Government of Portugal that if extradited for trial in India, the Appellant and his wife would not be visited with death penalty or imprisonment for a term beyond 25 years. Though the Appellant had been found guilty of offences punishable under Section 302 of the IPC and Section 3(2)(i) of the TADA (P) Act for which he was likely to be sentenced to death, that punishment stood commuted to imprisonment for life running concurrently, and it was by virtue of the sovereign assurance furnished by the Government of India that his imprisonment was restricted to 25 years.
Finally, the Bench observed that, insofar as the Appellant’s claim for remissions was concerned, the same had to be considered in the context of applicable local laws, and while a life convict may be entitled to remission in that period, there was no question of the sovereign assurance of 25 years being further reduced on account of remissions earned. In other words, the Appellant was not entitled to any reduction of sentence below the minimum period of 25 years by invoking either the Maharashtra Prisons (Remission System) Rules, 1962 or Section 432 of the CrPC.
Thus, the petition seeking immediate release by incorporating earned remissions into the computation of the 25-year term was held to be premature, totally misconceived and devoid of merit, added the Bench.
Briefly, the Petitioner, Abu Salem Abdul Qayoom Ansari, filed the present writ seeking habeas corpus and/or mandamus for his release from custody on the ground that he had completed the maximum sentence of 25 years by taking into account his undertrial detention, post-conviction incarceration, and earned jail remissions. The Petitioner had been extradited from Portugal and brought to India in November 2005, and was arrested and produced before the TADA Court on November 11, 2005 in connection with the Bombay Bomb Blast Case.
The Petitioner faced trial in both matters and was convicted on February 25, 2015 in TADA Case and sentenced to life imprisonment. He was also convicted on September 7, 2017 in TADA and sentenced to life imprisonment, with both sentences directed to run concurrently. The Supreme Court upheld the convictions but, in view of the solemn sovereign assurance dated December 17, 2002 given by the Government of India to the Government of Portugal, commuted the life sentences to a total sentence of 25 years, while directing the Government to consider remission under Sections 432 and 433 of the CrPC to ensure conformity with the sovereign assurance, one month prior to completion of the 25-year period.
Thereafter, the Petitioner approached the TADA Court seeking set-off of his undertrial period, which was allowed and he granted set-off of the period from November 11, 2005 to September 7, 2017, calculated from the date of arrest until the date of final judgment. The Petitioner was subsequently transferred from Taloja Central Prison to Nashik Road Central Prison and, pursuant to the Supreme Court’s order dated July 11, 2022, applied for determination of his date of release. The TADA Court rejected the application, which led to the filing of the present petition.
Appearances:
Senior Advocate Rishi Malhotra, along with Advocates Farhana Sahah, Shivaansh Maini, Darshana Gurjar, Yatish Desale, and Ansuiya, for the Petitioner
Acting PP, M. M. Deshmukh, for the Respondent-State
Advocates Kuldeep Patil, Saili Dhuru, Anay Joshi, Digviajy Kachare, Sumitkumar Nimbalkar, and Sanika Joshi for Respondent–CBI
ASG Anil C. Singh, along with Advocates Aditya Thakkar, D.P. Singh, Ayush Kedia, and Krishnakant Deshmukh, for the Respondent No.4-UOI
