Thread by @lawbarandbench

#SupremeCourt to hear a plea by terror-accused Abu Saleem which seeks for #India’s compliance with the assurances given to #Portugal to not keep him in jail for more than 25 years from the time he was #arrested, that is, in 2002.

Adv for Salem: I will show it from the judgment of the Portugal court to show that the assurance is in place.

Adv for Abu Salem now reads the judgment of the Portugal Court before the Bench of Justices Kaul and Sundresh.

#SupremeCourt

Adv reads some documents to show when Abu Salem was extradited to India, the bilateral agreement states that in case of the death penalty or imprisonment for *so and so*, the person will not be extradited to India. The President of India under Article 72 has the power to pardon.

Adv: The pardoning power of the president is exercised on the decision of the government, not alone and it is not judicially reviewable. "The Indian Gov solemnly assures gov of Portugal that Abu Salem will not be visited with Death Penalty or imprisonment over 25 years."

Adv: if the law of that country is something, then you have to apply that only. That is the law of reciprocity.

Adv: Also, there was an assurance that Abu Salem will not be extradited for any other offence other than the offences for which he is extradited.

Adv: Even the court of appeal in Lisbon [that is High Court of Portugal] took note of the solemn assurance by the Indian Government that Abu Salem to be extradited but only on the charges/offences which are mentioned, nothing else.

Adv: also, he shall not be punished with the death penalty or imprisonment over 25 years. Also the Supreme Court of Portugal considered the solemn assurance and passed similar remarks.

#SupremeCourt

Adv: now coming to non-consideration of these terms, the supreme court of Portugal states that if the requesting state (INDIA) exceeds the terms of the agreement, then the accused shall be extradited again back.

Adv: Milords, this extradition has been cancelled now, this is a violation of terms of the agreement and assurance given to the Portugal #SupremeCourt.

Adv: Even for the offences under TADA and even the TADA court said that the government has to go with the assurances given by India to Portugal.

Adv: now refers to the judgment of the #SupremeCourt in Hariharan.

Adv: Therefore, the TADA court held that the even the life imprisonment of the convict shall be limited to 25 years only and nothing more than that. Therefore, this is my first submission with respect to 25 years.

#SupremeCourt

Bench: now, the exercising of power by the executive and by the court is different. Once the life imprisonment is given, then it has to be given.

Adv: in execution of sentence, the TADA court says that we have to be bound by assurance.

#SupremeCourt

Adv: In Portugal's constitution, you cannot extradite a fugitive if you cannot imprison him for less than 25 years. If there was no assurance, then the indian government could not have extradited by them.

Bench: should this court be restricted to 25 years or should this court say that the government should return back the person back after 25 years?

Sundresh J : We cannot say anything on the judicial side, the TADA court observation is there. You should go to the government and ask for the same, but how can we say that the person must go back.

Adv: this court in Sriharan has said that the judicial mind must be applied and it is only the Supreme court which can fix the time period and only the supreme court or high court can do it.

Sriharan Judgment: indiankanoon.org/doc/132098234/

Bench: one there is a declaration by the executive that we [government] have to abide by 25 years agreement and the other is to say that the executive is not exercising power rather the court shall decide on the 25 years assurance.

Adv: this is simple milords, sometimes in 302 IPC cases, milords remit the sentences and reduce the sentences.

#SupremeCourt

Bench: your case is you should not get anything more than 25 years on the basis of the solemn assurance of the Union of India. Therefore, the decision about 25 years should be taken in a timebound manner but when 25 years approaches within 2 months.

bench: so only when 2 months are left in completion of 25 years, then you should approach the court and it must be heard and orders passed before completion of 25 years.

bench: the government is bound to honour the assurance.

Adv: but the TADA court judgment shall be modified as it says that my imprisonment is life which SHALL be modified.

bench: to bring that life to 25 years, that is only on the executive - to follow some law or the other and bring that down.

Adv: If we impose life or more than 25 years, then this whole extradition was not possible at all.

Bench: I was reading some other cases from UK also that India has never violated the extradition assurance. This is an executive function and we are bound by it . The nature of order to be passed is what?

Adv: now coming on the second submission of set off. Note down three dates which are very essential. I was in custody in Portugal 18.09.2002 serving a petty case. Also TADA court issued non-bailable warrants and i was also arrested on virtue of red corner notice.

Adv: my extradition started in 2003 which went for almost 2 years and custody was handed over in 2005. TADA court says , since i was not exclusively arrested in this case, therefore, i will not count that period, that is, from 2005. This is absolutely ABSURD.

Adv now reads the judgment / order of sentence of the TADA court.

Adv: In 2002, Abu Salem was detained and was in custody only and only in light of the red corner notice (non-bailable warrants) issued by the court.

Adv: The TADA court has erroneously held that the detention served in Portugal will not be considered. This is something I have never come across. this is some interpretation of Section 428 crpc.

Adv: The sentence of the accused/convict has to be set-off, that's the interpretation of the section and of this hon'ble court as well.

Adv: Even the detention undergone by the person during investigation and inquiry, that also must be set off by the courts.

Bench: if anything starts, then it starts from the extradition right? What is wrong in that?

Adv: I have shown the red corner notice also which involves detention and then, you have to use that.

bench: how can we apply section 428 and crpc for the incarceration in Portugal ? It will be very difficult for us Counsel. Separate offences have to be dealt with differently. How can we set off.

bench: you have undergone custody only for the investigation and enquiry. Then how is same as conviction or custody during trial? what you are arguing is very dangerous proposition. You are merging Portugal law and Indian law as well.

Adv: Even though I am serving a serving a sentence there, but if i am rearrested in some other case, then that custody will be counted milords. There is a three judges bench of this court milords.

Adv: I've been detained on the basis of red corner notice, hence, that has to be counted.

Bench: you were detained in Portugal, so why do we consider that?

Adv: how does it matter milords if i am detained there or here. The case is same milords.

Adv: Section 2(g) defines enquiry and enquiry excludes the court and even extradition will also mean enquiry.

Adv: the essence of enquiry under section 428 has to be the same case. It does not matter if we are in India or across borders. If i was not arrested pursuant to the red corner notice, then the situation would have been different.

Bench: can we rely on Section 428 and go to Portugal court to get set off?

Adv: milords, the effect of section 428 is about custody wherever i have gone through. Just because for the same case, my custody happens in foreign court, then how is it different?

Bench: you are getting confused.

Adv: suppose i was in Portugal and i was sentenced in that Portugese passport case and then i was also served the red corner notice. Now in both the matters i have been detained. Now will that custody not be counted to calculate my sentence.

Bench: that is not punishment, that is only the process of being there. It may take one year or two year but it can't be said to be punishment.

Adv: he was detained also milords.

Adv: you can't keep a person detained for n number of years and then say your sentence will only be counted after the sentencing is done by courts. Sorry milords.

Adv for Salem now reads Allan John Waters case.

Indian Kanoon: indiankanoon.org/doc/453012/

Adv for Salem now read the NazakatAli Case.

Adv: if the convict was in prison due to whatever reason and was later convicted and sentenced, therefore, the earlier sentence undergone by him shall be continued.

Adv: ... it shall be continued and shall be considered by the Courts as well. #SupremeCourt #AbuSalem

Adv: this view has been taken up by the Delhi High Court, a division bench of the Guwahati High Court as well. I will not read these propositions. The same is adopted by the Madras High Court (Justice Natrajan) has surveyed all the decisions of the high courts.

Adv: Time underwent by the accused as undertrial will also be counted for my set off. this has to be considered milords. My detention in Portugal also shall be counted for set off. That is my submission on the period of set off milords. Now come to my written submissions.

Adv: now in light of these judgments by high courts and supreme court, the TADA court was wrong in holding that my sentence shall not be set off for the time spent in the Portugal prison.

--- ASG KM Natraj appears for the Union ---

Natraj: if you go to Section 428 Crpc , there are three conditions which are to be fulfilled. If there is life imprisonment, then there is no applicability. Second, it must be same case and last, the last imprisonment period cannot be taken-up.

Natraj: To attract 428, it cannot be life imprisonment. It can only be in 433 where there is the power to remit as held in the Kartar singh case. When it comes to life, then he has to undergo the whole period.

Bench: what about your solemn assurance? So what is the nature of the order which we must pass? What is the start period of the sentence?

Natraj: If it is life sentence, then there is no applicability of section 428. Unless now s.433 is attracted.

Bench: What we are saying is that the period of sentence only starts after the conviction is rendered. Not before!

Bench: What we are asking is how do you count 25 years? what is the starting point?

ASG: in this present case, after we have taken him into custody after extradition then it starts.

Bench: His point of view is different, please answer what is he arguing .

ASG: Everything must be in this case.

Bench: he was issued red corner notice in this case right. So then, he was kept in custody in pursuance of that instant notice only. then, what to happen?

ASG: he was kept in custody in a different case.

Bench: let's assume there was no other case. Now what? if he is detained in pursuance to this case he is detained in other country. Now, will his period not be counted? Let's consider the Vijay Mallaya Case, what will happen to him when he comes here and gets convicted?

ASG: the earlier period cannot be counted. I will show judgments.

Bench: no, listen to me. In this case, when does his custody begins? That began in Portugal or in India when he is extradited?

ASG: From the first day, it starts when the red corner notice is issued.

Bench: what is the starting point of detention ?

ASG: that is when we have arrested him after extradition.

ASG: the period undergone need not be counted if he is detained out of India.

Bench: Let us say this was not life imprisonment. If he has undergone 5 years there outside. Then, do we count that 5 years in considering the total of 14 years?

ASG: No you cannot milords.

-- the bench discusses the issue among themselves --

Bench: If a judgment is rendered by three judges bench and even if there is one dissent, then also be a judgment of three judges bench and it cannot be two judges bench.

ASG now reads a judgment.

Bench: Mr Counsel you have derailed the earlier hearings, you said 15 mins and you took so much time. But lawyers must estimate the time correctly, always.

-- the bench rises for lunch --

ASG Continues the submission.

ASG reads a judgment on Section 428 CrPC, 1973.

ASG now reads Raghbir Singh v. State of Haryana -- indiankanoon.org/doc/1837044/

ASG reads from Raghbir Singh ---

ASG: So when the person is in custody, then the person cannot take benefit of that.

ASG: Conviction and detention in another case cannot be used here in this case to set off the sentence.

ASG: Our starting point should be from when the accused/convict was taken into the custody after the extradition.

Bench: So the only role of the court in this is to decide whether the person goes only for 14 years or life means life and no remission shall ever be granted?

ASG: refer to Sriharan judgment and para 61.

Adv for Salem rebuts the points made by the ASG.

Adv: ASG must have been little fair in arguing as an officer of the court. Under 428 crpc also, life imprisonment cases are applicable and there is a constitution bench of 5 judges which holds that.

ASG: I think you have not understood me.

Adv: No i have and now i will read the constitution bench judgment.

-- the bench rises --

The bench of Justices Kaul and Sundresh has reserved the judgment. Story coming up on @barandbench