New Delhi: The Supreme Court has dismissed an appeal filed by extradited gangster Abu Salem Abdul Qayoom Ansari seeking release from custody on the ground that he had completed 25 years of incarceration, holding that his computation impermissibly double-counted an overlapping period of custody and that jail-earned remission could not be added to a sentence that continues to be one of life imprisonment, notwithstanding the sovereign assurance capping his detention at 25 years.
The Bench of Justice Vikram Nath and Justice Sandeep Mehta, was hearing an appeal under Article 136 of the Constitution against a judgment of the High Court of Judicature at Bombay, which had dismissed the appellant's writ petition seeking habeas corpus and mandamus for his release, on the ground that he had not yet completed the 25-year period fixed by the Supreme Court's earlier judgment dated 11.07.2022.
The appellant, previously associated with a criminal syndicate, had been extradited from Portugal pursuant to a solemn sovereign assurance conveyed by the Government of India in 2002 that he would not be subjected to the death penalty or imprisonment exceeding 25 years. Following his extradition and custody handover on 10.11.2005, he was convicted and sentenced to rigorous life imprisonment in TADA Case No.1 of 2006 by order dated 25.02.2015, and again in BBC Case No.1 of 1993 by order dated 07.09.2017, with the second sentence directed to run concurrently with the first. In its judgment dated 11.07.2022 disposing of his appeals against these convictions, the Supreme Court had held that his period of detention would be computed from 12.10.2005, rejected his claim for set-off under Section 428 Cr.P.C. for custody undergone abroad, and observed that upon completion of 25 years, the Central Government would be required to consider advising the President under Article 72 or exercising its powers under Sections 432 and 433 Cr.P.C.
Before the Court, senior counsel for the appellant contended that, as on 30.06.2026, he had completed 26 years, 9 months and 22 days of incarceration, computed by adding undertrial custody from 11.11.2005 to 07.09.2017, post-conviction custody from 25.02.2015 to 30.06.2026, and earned remission of 3 years, 6 months and 2 days. The Court found this computation flawed, observing that the appellant had used inconsistent starting and ending points for the two custody periods, resulting in the same stretch between 25.02.2015 and 07.09.2017 being counted twice, once as undertrial custody and once as post-conviction custody, even though the two sentences ran concurrently and could not be notionally doubled.
On the question of jail-earned remission, the Court held that its judgment dated 11.07.2022 had not converted the appellant's life sentences into a fixed term of 25 years, but had merely recognised the sovereign assurance and required the Executive to consider exercising its clemency powers upon completion of that period, rooting the distinction in the constitutional separation of powers between the Executive's assurance and the Judiciary's sentence. The Court held that “the jail-earned remission cannot be notionally added to the period of incarceration so as to further advance the appellant's release,” since to do so would confer a benefit over and above the sovereign assurance while the underlying sentence remained one of life imprisonment. Reliance on the respondent-State's own affidavit and calculation chart, indicating a probable release date of 31.01.2046 based on a 50-year recommended category, reinforced that the sentence remained one of life imprisonment for remission purposes.
Distinguishing the decisions relied upon by the appellant, including Yovehel v. State of Maharashtra, Union of India v. V. Sriharan @ Murugan, and Swamy Shraddananda v. State of Karnataka, the Court held that none of those cases involved a sovereign assurance capping detention pursuant to extradition, and that precedent could not be applied divorced from its material facts.
Noting the gravity of the offences, which were directed at destabilising the country's financial capital, the Court found no infirmity in the High Court's judgment, upheld it, and dismissed the appeal in limine.
Case Title: Abu Salem Abdul Qayoom Ansari v. The State of Maharashtra & Ors.
