ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF MAHARASHTRA & ANR [2010] INSC 728 (10 September 2010)
Judgment
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 990 OF 2006 Abu Salem Abdul Qayoom Ansari .... Appellant(s) Versus State of Maharashtra & Anr. .... Respondent(s) WITH CRIMINAL APPEAL NOS. 1142-1143 OF 2007 AND WRIT PETITION (CRIMINAL) NO. 171 OF 2006
P. Sathasivam, J.
1) The appeals and the writ petition raised a common question, as such were heard together and are being disposed of by this common judgment. The grievance of the appellant-Abu Salem Abdul Qayoom Ansari in the appeals and writ petition is that the criminal courts in the country have no jurisdiction to try in respect of offences which do not form part of the extradition judgment, by virtue of which he has been brought to this country and he can be tried only for the offences mentioned in the extradition decree.
2) Criminal Appeal No. 990 of 2006, filed under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA Act"), arose out of framing of charge on 18.03.2006 against the appellant by the Designated Court at Arthur Road Jail, Mumbai in RC No.1(S/93)/CBI/STF known as Bombay Bomb Blast Case No. 1 of 1993 and the order dated 13.06.2006 passed by the said Court separating the trial of the accused/appellant from the main trial in the Bombay Bomb Blast Case.
3) The appellant filed Criminal Appeal Nos. 1142-1143 of 2007 against the order dated 16.04.2007 by the same Designated Court, framing charges against him under Sections 120B, 302, 307, 387, 382 IPC and under Sections 3(2)(i), 3(2)(ii), 3(3), 3(5) and 5 of the TADA Act.
4) In addition to filing of the abovesaid appeals, the appellant has also filed Writ Petition (Crl.) No. 171 of 2006 under Article 32 of the Constitution of India seeking a) to issue a writ of Certiorari to quash the charges framed against him in Bombay Bomb Blast Case No. 1 of 1993 arising out of RC No. 1 (S/93)/CBI/STF by framing of charge on 18.03.2006; b) to issue a writ of Certiorari to quash the order passed by the Designated Court under TADA Act dated 13.06.2006 passed in Misc. Application No. 144 of 2006; c) issue a writ of Certiorari to declare that the charges framed on 18.03.2006, in Bombay Bomb Blast Case No. 1 of 1993, as violative of the Rule of Speciality and Section 21 of the Extradition Act, 1962; (d) issue a writ of Mandamus to release and discharge the writ petitioner by quashing all the proceedings against him; (e) issue a writ of Prohibition prohibiting the respondents from prosecuting the writ petitioner any further for the offences for which the petitioner has not been extradited by the Court of Appeals at Lisbon as affirmed by the order of the Supreme Court of Portugal; f) issue a writ of Prohibition prohibiting the Designated Court at Arthur Road Jail at Mumbai from separating the trial of the writ petitioner from the other accused whose trial is stated to have been completed.
5) Prosecution Case:
a) On 12.03.1993, there were a series of bomb explosions in the Mumbai City which resulted in death of 257 persons, injuries of various types to 713 persons and destruction of properties worth more than Rs. 27 crores (approximately). These bomb explosions were caused at vital Government installations, public places and crowded places in the city and its suburbs with an intention to overawe the Government established by law, and to strike terror among the public at large and also to adversely affect the peace and harmony among different sections of the people. Twenty-seven criminal cases were registered at respective Police Stations with regard to the said bomb explosions and subsequent recovery of arms, 4 ammunitions and explosives, which were illegally smuggled into the country with the intention to commit the said terrorist acts. On completion of investigation, it was disclosed that various acts committed by the accused persons were out of a single conspiracy and, therefore, a single charge-sheet was filed in the specially created Designated Court, Mumbai, against 189 accused persons including 44 absconders on 04.11.1993 for offences punishable under Section 120B read with Sections 324, 326, 427, 435, 121, 121-A, 122, 307, 302 and 201 of the Indian Penal Code read with Sections 3, 4 and 5 of the TADA Act read with Sections 3, 7(a), 25(1A), 25(1AA), 26, 29, 35 of the Arms Act, 1959 read with Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908. The appellant-Abu Salem was one of the absconders mentioned in the charge-sheet.
b) The investigation disclosed that the appellant-Abu Salem and other accused persons hatched a criminal conspiracy during the period December, 1992 to April, 1993 with an object to create disturbances of serious nature by committing terrorist acts by bomb explosions, murders and causing destruction of properties throughout India. In pursuance of the said criminal conspiracy, a large quantity of arms like AK-56 rifles, pistols, hand- grenades, ammunitions and RDX explosives were illegally smuggled into the country through sea at Dighi Jetty and Shekhadi ports in Maharashtra State during January and February, 1993. These illegal arms and ammunitions were kept and stored at different places with different persons with the object to commit terrorist acts.
c) The appellant-Abu Salem was entrusted with the task of transportation of illegally smuggled arms and ammunitions, their storage and distribution to other co- accused persons. Investigation has disclosed that a portion of arms and explosives, which were smuggled and brought illegally into India on 09.01.1993, were taken to the State of Gujarat and stored at Village Sansrod, Dist.
Bharuch. In the second week of January, 1993, on the instructions of absconding accused, Anees Ibrahim Kaskar, appellant-Abu Salem brought AK-56 rifles, their ammunitions and hand-grenades from Village Sansrod to Mumbai and distributed the same among co-accused persons.
d) On 12.03.1993, RDX filled vehicles and suit-cases were planted at strategic places like Bombay Stock Exchange, Air India Building, Near Shiv Sena Bhawan, Plaza cinema and thickly populated commercial places like Zaveri Bazar, Sheikh Memon Street etc. The suit-case bombs were also planted in the rooms of 3 five-star Hotels, namely, Hotel Sea Rock, Bandra, Hotel Juhu Centaur and Airport Centaur, Mumbai. Explosions were caused from the said vehicle-bombs and suit-case bombs in the afternoon of 12.03.1993 and within a period of about two hours, large-scale deaths and destruction was caused, as described earlier. Hand-grenades were also thrown at two places i.e. Sahar International Airport, Mumbai and Fishermen Colony, Mahim, Mumbai. The explosions caused by hand-grenades also produced similar results.
e) During the course of investigation, a large quantity of arms, ammunitions and explosives were recovered from the possession of accused persons. In India, AK-56 rifles, ammunitions and hand-grenades cannot be possessed by private individuals, as these types of sophisticated arms and ammunitions can only be used by the armed forces and other law enforcing agencies.
f) Since the appellant-Abu Salem absconded and could not be arrested during the course of investigation, he was shown as an absconder in the charge-sheet. The Designated Court, Mumbai, issued Proclamation No. 15777 of 1993 against him on 15.09.1993. As the accused did not appear before the Court despite issuance of Proclamation, he was declared as a Proclaimed Offender on 15.10.1993. The Designated Court, Mumbai issued Non-bailable Warrant against appellant-Abu Salem and Interpol Secretariat General, Lyons, France also issued a Red Corner Notice No. A-103/3-1995 for his arrest.
g) During the course of trial, the Designated Court, Mumbai, framed common charge of criminal conspiracy punishable under Section 3(3) of the TADA Act and Section 120 B of the Indian Penal Code read with Sections 3(2)(i), (ii), 3(3), 3(4), 5 and 6 of the TADA Act read with Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212 of the Indian Penal Code and offences under Sections 3 and 7 read with Sections 25 (1A), (1B), (a) of the Arms Act, 1959, Sections 9-B(1), (a), (b), (c) of the Explosives Act, 1884, Sections 3, 4(a), (b), 5 and 6 of the Explosive Substances Act, 1908 and Section 4 of the Prevention of Damage to Public Property Act, 1984 against all the accused who were present before the Court, as also the accused who are absconding including the appellant. The Designated Court, Mumbai, on 19.06.1995, ordered that the evidence of the witnesses may be recorded against absconding accused persons in their absence in accordance with the provisions of Section 299 Cr.P.C.
h) On 18.09.2002, the appellant-Abu Salem was detained by the Portugese Police at Lisbon on the basis of the above mentioned Red Corner Notice. In December 2002, on receipt of the intimation about his detention in Lisbon, the Government of India submitted a request for his extradition in 9 criminal cases (3 cases of CBI, 2 cases of Mumbai Police and 4 cases of Delhi Police). The request was made relying on the International Convention for the Suppression of Terrorist Bombings and on an assurance of reciprocity as applicable in international law. Along with the requisition of extradition, the relevant facts of the cases were enclosed in the form of duly sworn affidavits of the concerned Police officers, together with other supporting documents. The letter of requisition was issued under the signature of the then Minister of State for External Affairs and the affidavit-in-support was affirmed by Sr. Superintendent of Police, CBI/STF.
i) On 13.12.2002, the Government of India issued Gazette Notification No. G.S.R.822(E) in exercise of the powers conferred by Sub-section (1) of Section 3 of the Extradition Act, 1962, directing that the provisions of the Extradition Act, other than Chapter-III, shall apply to the Portuguese Republic with effect from 13.12.2002.
j) The Government of India gave an undertaking under the signatures of the then Dy. Prime Minister that on the basis of provisions of the Constitution of India, Indian Extradition Act, and the Code of Criminal Procedure, 1973 assured the Government of Portugal that it will exercise its powers conferred by the Indian Laws to ensure that if extradited by the Portugal for trial in India, appellant-Abu Salem would not be visited by death penalty or imprisonment for a term beyond 25 years. The Ambassador of India in Lisbon, by letter dated 25.05.2003, gave another assurance that in the event of extradition of the appellant- Abu Salem, he will :
1 (i) not be prosecuted for offences other than those for which his extradition has been sought.
(ii) not be re-extradited to any third country.
k) The request for the extradition of the appellant-Abu Salem was considered and examined by the authorities in Government of Portugal and by the Court of Appeals, Lisbon, Supreme Court of Justice, Portugal and Constitutional Court of Portugal. The Authorities/Courts in Portugal granted extradition of the appellant-Abu Salem in 8 criminal cases (3 cases of CBI, 2 cases of Mumbai Police and 3 cases of Delhi Police). Extradition in one case of Delhi Police was not granted. The Supreme Court of Justice, Portugal granted extradition of appellant-Abu Salem for the following offences, included in the request of Public Prosecution, as is clear from Para
13.1 of the order dated 27.01.2005 of Supreme Court of Justice, Portugal, which was also confirmed by the Constitutional Court of Portugal. The maximum sentence prescribed under the Indian Laws for these offences is mentioned here under: S.No. Offence Maximum Punishment i) The offence of criminal conspiracy Death Penalty in the punishable u/s. 120B IPC present case ii) Murder punishable U/s. 302 IPC Death Penalty iii) Attempt to murder punishable Imprisonment for Life u/s. 307 IPC iv) Mischief punishable u/s. 435 IPC Imprisonment for 7 years v) Mischief by fire or explosive Imprisonment for Life punishable u/s. 436 IPC vi) Offence punishable u/s. 3(2) of Death Penalty in this case TADA (P) Act.
vii) 3(3) of TADA (P) Act Life Imprisonment viii) Section 3 of Explosive Substances Life Imprisonment Act, 1908 ix) Offence punishable u/s. 4 of Imprisonment for 10 years Prevention of Damage to Public Property Act l) Upon extradition, custody of the appellant-Abu Salem was handed over by the Govt. of Portugal to Indian Authorities on 10.11.2005 and he was brought to Mumbai on 11.11.2005. He was produced in the Designated Court, Mumbai, in connection with the serial Bombay Bomb Blast Cases (CBI Case RC No. 1 (S/93)/CBI/STF, Court case No. BBC 1 of 1993) m) On 01.03.2006, after completion of further investigation against the appellant-Abu Salem, a Supplementary Report u/s. 173(8) of Cr.P.C. was filed in the Designated Court, Mumbai. Prior to that, on 09.12.2005, the Designated Court altered the common charge of criminal conspiracy by adding the name of the appellant-Abu Salem in the list of the accused persons before the Court by deleting his name from the list of absconding accused in the said charge. On 18.03.2006, after hearing the counsel for the appellant and the Prosecution, the Court framed substantive charges against the appellant-Abu Salem.
n) The Designated Court has framed charges for the following offences against the appellant-Abu Salem vide its orders:
i) Offence of criminal conspiracy punishable u/s. 120-B IPC r/w. offences punishable under IPC, TADA (P) Act, Explosive Substances Act, Explosives Act, Arms Act and Prevention of Damage to Public Property Act.
ii) Offence punishable under Section 3 (3) of TADA (P) Act, 1987.
iii) Offence punishable under Section 5 of TADA (P) Act, 1987.
iv) Offence punishable under Section 6 of TADA (P) Act, 1987.
v) Section 4(b) of the Explosive Substances Act, 1908.
vi) Section 5 of the Explosive Substances Act, 1908.
vii) Section 25 (1-A)(1-B)(a) r/w Sections 3 and 7 of the Arms Act, 1959.
viii) Offence punishable u/s. 9-B of the Explosives Act, 1884.
o) These charges have been framed by the Designated Court keeping in view the provisions contained under Section 21 of the Extradition Act, 1962.
(p) The extradition order of the Supreme Court of Justice, Portugal, did not include the following offences for which the charges have been framed by the Designated Court, Mumbai. The maximum punishment provided for these offences is given here:- S.No. Offence Punishment i) Section 5 of TADA (P) Act, 1987. Imprisonment for Life ii) Section 6 of TADA (P) Act, 1987. Imprisonment for Life iii) Section 4-b of Explosive Imprisonment for 20 years.
Substances Act, 1908 iv) Section 5 of the Explosive Imprisonment for 14 years.
Substances Act, 1908 v) Section 25 (1-A) (1-B) (a) of Arms Imprisonment for 10 years.
Act, 1959.
vi) Section 9-B of Explosives Act, Imprisonment for 3 years.
1884 (q) The request for extradition of the appellant-Abu Salem has been made relying on the assurance of reciprocity as applicable in international law and the International Convention for Suppression of Terrorist Bombings. The order dated 27.01.2005 of the Supreme Court of Justice, Portugal mentions that Article9.3 of the said Convention applies to the case of appellant-Abu Salem. As per Article 9.3, the State Parties, which do not make extradition conditional on the existence of a treaty, shall recognize the offences themselves subject to the conditions provided by the law of the requested State.
Article 2 of the Convention defines the extraditable offences. The above mentioned offences for which the extradition has not been specifically granted, also covered under the definition of extraditable offence, as mentioned in Article 2 of the said Convention.
(r) The punishment provided for the offences, not included in the order of Supreme Court of Justice of Portugal, is lesser than the punishment provided for the offences included in the said order of Extradition. The said offences are disclosed by the facts, which were considered/proved for the purposes of extradition of appellant-Abu Salem from Portugal. It was further stated that the said offences are extradition offences, as defined under Section 2(c)(ii) of the Extradition Act, 1962 and, thus, the trial of appellant-Abu Salem for these offences is permissible under Section 21(b) of the Extradition Act, 1962.
(s) After framing of the charges on 18th March, 2006, the Designated Court invited the views of the prosecution and the defence about the further course of action for the trial of appellant-Abu Salem. The prosecution, Vide M.A. No. 144 of 2006, submitted its views to the Designated Court, suggesting therein that the trial of appellant-Abu Salem may be separated in the same manner as was done by the Designated Court in respect of absconding accused Mustafa Ahmed Dossa, upon his arrest in March 2003, to avoid hardships to 123 accused persons whose trial had already been completed. It was further submitted by the prosecution that 33 accused persons were in custody for the last about 12-13 years. The course of action as suggested by the prosecution would not cause any prejudice to any accused, including appellant-Abu Salem and would also avoid further delay in pronouncement of the judgment in the case. The Designated Court, Mumbai, after hearing both the sides, by its order dated 13.06.2006 ordered that the trial of appellant-Abu Salem, co-accused Riyaz Ahmed Siddique and other absconding accused, mentioned in the common charge of criminal conspiracy, and jointly in progress along with the other co-accused mentioned in the said charge, stood separated from the ongoing trial in progress. The Court further ordered that the said separated trial from that day (13.06.2006) to be continued under No. BBC-1-B of 1993, in continuity with the earlier joint case.
6) These orders are under challenge in these appeals and writ petition.
7) Stand of the appellant-Abu Salem The appellant has been extradited from Portugal for being tried in eight cases including the Bombay Bomb Blast Case No. 1 of 1993 subject to certain conditions and the sovereign assurance given by the Government of India to the Government of Portugal. It was his stand that the charges under Sections 3(4), 5 and 6 of the TADA Act, Sections 4(b) and 5 of the Explosive Substances Act, Section 25 of the Arms Act and Section 9B of the Explosives Act (in R.C. No. 1(S/93)/CBI/STF (Bomb Blast Case) and charges under Section 120B, 387 and 386 of the Indian Penal Code and under Section 5 of the TADA (in C.R. No. 144 of 1995) are in flagrant disobedience of the mandate of Section 21 of the Indian Extradition Act as well as the solemn sovereign assurance of the Government of India, the ministerial order of extradition of the appellant passed by the Government of Portugal, the judgment of the Court of Appeals as well as the Supreme Court of Portugal.
8) It is also his grievance that time and again the authorities abused the process of criminal law by failing to file the orders passed by Portugal Courts and by willfully and deliberately violating the solemn sovereign assurance. It is his categorical claim that the respondents are lowering the esteem of the nation by their deceitful behaviour in the field of international law, breaching the principle of speciality established under the rule of international law and recognized by Section 21 of the Extradition Act after securing the extradition and gaining control of the appellant. The construction made by the Designated Court is not acceptable and the appellant is being wrongly tried by the Designated Court in violation of the extradition decree and prayed for quashing of the entire proceedings.
9) Heard Mr. S. Pasbola, learned counsel for the appellant and Mr. Gopal Subramaniam, learned Solicitor General and Mr. H.P. Rawal, learned Additional Solicitor General for the respondents.
10) The contention of the appellant that he is being tried for the offences for which he has not been specifically extradited, has been rejected by way of the impugned order on the ground that the extradition has been granted for the offences of higher degree and the additional offences for which he is being tried are subsumed/included in the said higher degree of offences and the trial would be permissible by virtue of clause (b) of Section 21 of the Extradition Act, 1962. As pointed out earlier, apart from the appeals against the order of the Designated Court, the appellant has also preferred a writ petition seeking to invoke the extraordinary writ jurisdiction of this Court on the ground that the trial for the offences for which he has specifically not been extradited is violative of the fundamental rights enshrined under Article 21 of the Constitution of India which guarantees a fair trial with due process of law.
11) The term `extradition' denotes the process whereby under a concluded treaty one State surrenders to any other State at its request, a person accused or convicted of a criminal offence committed against the laws of the requesting State, such requesting State being competent to try the alleged offender. Though extradition is granted in implementation of the international commitment of the State, the procedure to be followed by the courts in deciding, whether extradition should be granted and on what terms, is determined by the municipal law of the land. Extradition is founded on the broad principle that it is in the interest of civilised communities that criminals should not go unpunished and on that account it is recognised as a part of the comity of nations that one State should ordinarily afford to another State assistance towards bringing offenders to justice.
12) With the tremendous increase in the facility of international transport and communication, extradition has assumed prominence since the advent of the present century. Because of the negative attitude of the customary international law on the subject, extradition is by and large dealt with by bilateral treaties. These treaties, inasmuch as they affected, the rights of private citizens, required in their turn alterations in the laws and statutes of the States which had concluded them. The established principle requires that without formal authority either by treaty or by statute, fugitive criminals would not be surrendered nor would their surrender be requested.
13) There is no general rule that all treaty rights and obligations lapse upon external changes of sovereignty over territory nor is there any generally accepted principle favouring the continuity of treaty relations. Treaties may be affected when one State succeeds wholly or in part to the legal personality and territory of another. The conditions under which the treaties of the latter survive depend on many factors including the precise form and origin of the succession and the type of treaty concerned.
The emancipated territories on becoming independent States may prefer to give general notice that they were beginning with a "clean slate" so far as their future treaty relations were concerned, or may give so-called "pick and choose" notifications as to treaties as were formally applicable to it before achieving independence. The "clean slate" doctrine was ultimately adopted in the relevant provisions of the Vienna Convention of 1978. The sound general working rule which emerges is to look at the text of the relevant treaty and other arrangements accompanying change of sovereignty and then ascertain as to what was the intention of the State concerned as to the continuance or passing of any rights or obligations under the treaty concerned. The question whether a State is in a position to perform its treaty obligations is essentially a political question which has to be determined keeping in view the circumstances prevailing and accompanying the change of sovereignty.
14) We have already referred to the factual details.
Hence there is no need to repeat the same once again.
However, it is useful to advert the following information, namely, on 04.11.1993, a single charge-sheet was filed in the Designated Court against 189 accused persons, of which, 44 accused persons were shown absconding. The role attributed to Abu Salem in RCI(S) relating to the Bombay Bomb Blast case of 1993 was that he was entrusted with the task of transportation of illegally smuggled arms and ammunitions and their storage and distribution to other co-accused. A portion of arms smuggled on 09.01.1993 were taken to village Sansrod, Distt. Bharuch, Gujarat on the instructions of absconding accused Anees Ibrahim Kaskar. Subsequently, the appellant took AK-56, ammunitions and hand grenades to Mumbai and distributed amongst various co-accused. A Red Corner Notice bearing No. A-103/3-1995 was issued through Interpol for the arrest of the appellant. On 19.11.1993, further investigation was transferred to C.B.I.
The CBI registered case Crime No. RC1(S)/93/STF/BB.
Consequently, further investigation was conducted by CBI and supplementary reports were filed under Section 173(8) of Cr.P.C. before the Designated Court on various dates. On 10.04.1995, the Designated Court, Mumbai, after hearing the arguments of both sides, framed charges against the accused persons. The Court framed a common charge of criminal conspiracy against all the accused persons present before it, absconding accused and other unknown accused persons. The appellant has been named in the charge as absconding accused. The charge included the offence of conspiracy also for the offences with which he has been substantively charged.
By order dated 19.06.1995, before commencing examination of witnesses, the Designated Court directed that evidence to be adduced against the absconding accused persons for the purpose of Section 299 of the Cr.P.C. On 18.09.2002, the appellant was detained by Portuguese Police, initially in a passport case and subsequently, in view of the Red Corner Notice.
15) In December, 2002, Government of India submitted request for extradition of the appellant in 9 criminal cases (three cases of CBI, two cases of Mumbai Police and four cases of Delhi Police).
16) Before going into the requisition made by the Government of India and the orders passed by the Government of Portugal as well as the Supreme Court of Justice, it is useful to refer certain provisions of the Extradition Act, 1962. In order to codify the laws relating to the extradition to fugitive criminals, the Parliament enacted the Extradition Act, 1962 which came into force on 05.01.1963. It extends to the whole of India. The following definitions are relevant:
"2. Definitions.--In this Act, unless the context otherwise requires,-- (a) .....
(b) .....
(c) extradition offence" means-- (i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;
(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence;
(d) "extradition treaty" means a treaty, agreement or arrangement made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty, agreement or arrangement relating to the extradition of fugitive criminals made before the 15th day of August, 1947, which extends to, and is binding on, India;
(e) "foreign State" means any State outside India, and includes every constituent part, colony or dependency of such State;
(f) "fugitive criminal" means a person who is accused or convicted of an extradition offence within the jurisdiction of a foreign State and includes a person who, while in India, conspires, attempts to commit or incites or participates as an accomplice in the commission of an extradition offence in a foreign State.
(g) .....
(h) .....
(i) ......
(j) "treaty State" means a foreign State with which an extradition treaty is in operation."
"3. Application of Act.--(1) The Central Government may, by notified order, direct that the provisions of this Act other than Chapter III shall apply to such foreign State or part thereof as may be specified in the order.
(2) The Central Government may, by the same notified order as is referred to in sub-section (1) or any subsequent notified order, restrict such application to fugitive criminals found, or suspected to be, in such part of India as may be specified in the order.
(3) Where the notified order relates to a treaty State,- (a) it shall set out in full the extradition treaty with that State;
(b) it shall not remain in force for any period longer than that treaty; and (c) the Central Government may, by the same or any subsequent notified order, render the application of this Act subject to such modifications, exceptions, conditions and qualifications as may be deemed expedient for implementing the treaty with that State.
(4) Where there is no extradition treaty made by India with any foreign State, the Central Government may, by notified order, treat any Convention to which India and a foreign State are parties, as an extradition treaty made by India with that foreign State providing for extradition in respect of the offences specified in that Convention."
"Section 21: Accused or convicted person surrendered or returned by foreign State not to be tried for certain offences - Whenever any person accused or convicted of an offence, which, if committed in India would be an extradition offence, is surrendered or returned by a foreign State, such person shall not, until he has been restored or has had an opportunity of returning to that State, be tried in India for an offence other than-- (a) the extradition offence in relation to which he has surrendered or returned; or (b) any lesser offence disclosed by the facts proved for the purpose of securing his surrender or return other than an offence in relation to which an order for his surrender or return could not be lawfully made; or (c) the offence in respect of which the foreign State has given its consent."
17) United Nations General Assembly adopted the Convention for the Suppression of Terrorist Bombings on 15th December, 1997. It is not in dispute that both India and Portugal are signatories to the said Convention. In the absence of any special treaty between India and Portugal, being the signatories to the said Convention, the requisition for extradition of the appellant-Abu Salem was signed by the then Minister of State of External Affairs. The said communication reads as under:- "Omar Abdullah MINISTER OF STATE FOR EXTERNAL AFFAIRS REQUISITION FOR EXTRADITION OF MR. ABU SALEM ABDUL QAYOOM ANSARI FROM THE PORTUGUESE REPUBLIC I, Omar Abdullah, Minister of State for External Affairs, Government of the Republic of India, relying on the International Convention for the Suppression of Terrorist Bombings and on an assurance of reciprocity as applicable in international law, hereby request that Mr. Abu Salem Abdul Qayoom Ansari, Indian national, who is accused of having committed certain criminal offences in India, and has been charged under the following Sections of the Indian Penal Code:
201 (causing disappearance of evidence of offence); 302 (Punishment for Murder); 307 (Attempt to murder); 324 (Voluntarily causing hurt by dangerous weapons); 326 (voluntarily causing grievous hurt by dangerous weapons);
427 (Mischief causing damage); 435 (Mischief by fire); 468 (Forgery for purpose of cheating);
471(Using as genuine a forged document) of the Indian Penal Code read with Sections 3, 4 and 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987 read with Sections 3, 7(a), 25(1)(A), 25(1)(AA), 26, 29, 35 of Arms Act 1959 read with Sections 3, 4, 5 & 6 of Explosive Substances Act of 1998 read with Section 12(1)(b) of the Passport Act, 1967 and 120-B (Punishment for Criminal Conspiracy) of Indian Penal Code.
In connection with Criminal Case Nos. CR.1(S)/93/CBI/STF/Mumbai, RC 15(S)/97/CBI/STF/NE . Delhi and RC 34(A)/2002-CBI/Hyderabad of the Central Bureau of Investigation;
And Sections 387 (Putting person in fear of death);
506 (Punishment for criminal intimidation); 507 (Criminal Intimidation by an Anonymous Communication); 120-B (Punishment for Criminal Conspiracy); 201 (Causing Disappearance of Evidence of Offence) of Indian Penal Code read with 3(ii), 3(iv) of Maharashtra Control of Organized Crime Act, 1999 in connection with Criminal Case No. 88/2002 dated 04/04/2002 of Police Station Greater Kailash, New Delhi And Sections 387 (Putting person in fear of death);
506 (Punishment for Criminal Intimidation);
120-B (Punishment for Criminal Conspiracy) of Indian Penal Code in connection with Case FIR No. 39/02 dated 26/07/02 of Police Station Special Cell, Lodhi Colony, New Delhi And Section 120-B (Punishment for Criminal Conspiracy) of Indian Penal Code; read with 302 (Punishment for Murder) of Indian Penal Code in 3 connection with Case FIR No. 849/98 of Police Station, Hauz Khas, New Delhi.
And Sections 120-B (Punishment for Criminal Conspiracy) read with Section 384 (Punishment for Extortion) of Indian Penal Code, in connection with Case FIR No. 850/98 of Police Station, Hauz Khas, New Delhi And Section 302 (Punishment for Murder) of Indian Penal code; read with Arms Act and Maharashtra Control of Organized Crime Act, in connection with Criminal Case No. CR No. 52/2001 of Crime Branch -CID Mumbai.
And Section 307 (Attempt to Murder); and 34 (Acts done by several persons in furtherance of common intention) of Indian Penal Code in connection with CR No. 144/99 of Police Station D.N. Nagar, Mumbai.
Be surrendered to the Republic of India to be dealt with according to law.
Particulars of the person whose extradition is being requested, facts of the cases, relevant laws under which he has been charged and the evidence to justify the issue of warrant for his arrest have been given in the form of duly sworn Affidavit together with other supporting documents in the enclosed volumes.
I may further state that there are a number of other criminal cases in which Mr. Abu Salem Abdul Qayoom Ansari is involved. A formal extradition request in respect of some of these criminal cases will be submitted shortly.
I, hereby, certify that all documents enclosed herewith have been authenticated, I have signed my name and caused my seal to be affixed hereunto at New Delhi today, the 13th December, 2002.
3 Sd/- illegible (Omar Abdullah) Minister of State for External Affairs Government of the Republic of India"
The above communication was supported on facts with a detailed affidavit dated 11.12.2002 duly sworn to by Mr. Om Prakash Chhatwal, Senior Superintendent of Police, Central Bureau of Investigation, Special Task Force, New Delhi 18) On 13.12.2002, a Gazette Notification was issued making the provisions of the Extradition Act, except Chapter III, applicable to Portuguese Republic under sub-Section (1) of Section 3 of the said Act. (published in the Gazette of India, Extraordinary, Pt. II, Section 3(i) Dated 13.12.2002).
19) In addition to the requisition by the then Minister of State for External Affairs and the Gazette Notification, on 17.12.2002, an assurance was extended by the then Deputy Prime Minister of India which reads as under:
"L.K. ADVANI Deputy Prime Minister No. I/11011/90/2000-IS-IV December 17, 2002 Excellency, At the outset, I would like to express my deep appreciation for your letter October 4, 2002 in response to the letter of our External Affairs Minister of September 23, 2002 regarding the return of Abu Salem Abdul Qayoom Ansari to India. In your letter, you had advised that a formal extradition request be presented which would fulfill the requirements of Portuguese law. Accordingly, the concerned authorities in India have been in the process of preparing the required formal extradition request for presentation.
In this context, we have been informed that under Portuguese law, an offender cannot be extradited to the requesting country if the offence or offences committed attract the visitation of either the death penalty or imprisonment for an indefinite period beyond 25 years. As the offences Abu Salem Abdul Qayoom Ansari is charged with or accused of would attract the death penalty and life imprisonment under Indian law, a solemn sovereign assurance is required to enable his extradition from Portugal to India.
The Government of India also desires that Abu Salem Abdul Qayoom Ansari's accomplice, Monica Bedi, be extradited to India. One of the offences she is accused of would carry the penalty of life imprisonment, Monica Bedi was arrested in Portugal on September 18, 2002 along with Abu Salem Abdul Qayoom Ansari.
The issue of the legal basis for the above assurance to be given by the Government of India has been given due attention. I may mention that Section 34(c) of the Indian Extradition Act, 1962 states that "Notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India is surrendered or returned by a foreign State on the request of the Government and the laws of that foreign State do not provide for the death penalty for such an offence, such fugitive criminal shall be liable for punishment of imprisonment for life only for that offence."
Further Article 72 (1) of the Constitution of India provides that "The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence." In all cases where the punishment or sentence is for any offence against any law relating to a matter to which the executive power of the Union extends including where the sentence is a sentence of death.
Further, it is a settled law that the power under Article 72 of the Constitution of India is to be exercised on the advice of the Government and not by the President acting on his own and that the advice of the Government is binding on the Head of the State. Also, the President's power under the said Article 72 is a constitutional power and is beyond judicial review.
It is also pertinent to state that in addition to the above provisions, Section 432 and 433 of the Code of Criminal Procedure of India 1973 confer power on the Government, to commute a sentence of life imprisonment to a term not exceeding 14 years.
The Government of India, therefore, on the basis of the provisions of the Constitution of India, the Indian Extradition Act, 1962 and the Code of Criminal Procedure of India, 1973 solemnly assures the Government of Portugal that it will exercise its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, Abu Salem Abdul Qayoom Ansari and Monica Bedi would not be visited by death penalty or imprisonment for a term beyond 25 years.
Please accept, your Excellency, the assurance of my highest consideration.
Sd/- illegible (L.K. ADVANI) H.E. MR. ANTONIO MARTINS DA CRUZ MINISTER FOR FOREIGN AFFAIRS PORTUGAL"
20) In pursuance of all the above assurances and communications, on 28.03.2003, the Ministerial order came to be passed admitting extradition amongst others for Section 120B read with Section 302 IPC , Section 3(2) of TADA.
However, the ministerial order declines extradition for Section 25(1A) and (1B) of the Arms Act and Sections 4 & 5 of Explosive Substances Act. On 25.05.2003, the Ambassador of India in Lisbon gave further assurance that they will not be tried for offences other than those for which extradition was sought for and they will not be extradited to a third country.
21) In pursuance of the Ministerial order dated 28.03.2003, Her Excellency, the Minister of Justice, under the terms provided in No. 2 of Article 48 of Law 144/99 submitted through the Public Prosecution a request for extradition before the Court of Appeals of Lisbon. The appellant-Abu Salem also preferred an appeal against the order of Extradition before the Court of Appeals, Lisbon. By order dated 14.07.2004, the Court of Appeals Lisbon agreed to authorize extradition for the offences contained in the request of prosecution with an exception of offences punishable with death or life imprisonment. Aggrieved by the same, the Public Prosecution challenged the order of Court of Appeals before the Supreme Court of Justice by lodging an appeal on 23.07.2004 and sought extradition also for offences punishable with death and life imprisonment. On 29.07.2004, the appellant also filed an appeal against the said order of the Court of Appeals. On 27.01.2005, the Supreme Court of Justice permitted the extradition for the offences in view of the assurances given by the Government of India that the person extradited would not be visited by death penalty or imprisonment for a term beyond 25 years. In addition to the same, on 03.03.2005, the Supreme Court of Justice issued a supplementary order maintaining the decision made on 27.01.2005. On 13.06.2005, the petition for appeal of the appellant-Abu Salem was rejected by the Constitutional Court by upholding the constitutional validity of the provisions of Article 9.3 of the said New York Convention which obliges the signatory State for extradition for offences covered under it notwithstanding lack of mutual extradition treaty between the parties. On 10.11.2005, the custody of the appellant was handed over to the Indian Authorities and on 11.11.2005, the appellant was brought to India and was produced before the Designated Court, Mumbai in RC-1(S) of 1993 and by order dated 18.03.2006, the substantive charges in addition to charge of conspiracy were framed against the appellant and his plea of not guilty and claim of trial was recorded. Thereafter, the prosecution filed Miscellaneous Application bearing No. 144/2006 seeking separation of the trial of the accused from the main trail in the Bombay Bomb Blast case. In the meanwhile, the appellant also filed Misc. Appeal No. 161 of 2006 seeking production of relevant record of extradition and sought joint trial along with other 123 accused whose trial was nearing completion. By order dated 13.06.2006, the Designated Court allowed the application of the Prosecution for separation of trial and held that the trial would continue as BBC-1-B/1993 in continuity with the earlier joint case. The Designated Court has pointed out that the assurances were given with respect to sentences which could be imposed and not with respect to the offences with which he could be tried.
It was further held that the `lesser offence' in Section 21 of the Extradition Act covers wider matters than the phraseology "minor offence" in Section 222 of Criminal Procedure Code. It was also held by the Designated Court that although the overt acts with which the appellant has been charged may not be cognate with the ingredients of offence with which he has been charged, however, they are lesser offences for the purposes of Section 21 of the Extradition Act.
22) It is relevant to point out that apart from challenging the above said order by way of an appeal under Section 19 of the TADA Act and a writ petition under Article 32 of the Constitution, the appellant has also moved an application before the Court of Appeal in Lisbon that he is being tried in India for violation of Principles of Specialty as contained in Article 16 of Law 144/99. It is brought to our notice that on 18.05.2007, the Court of Appeal expressed its inability to enquire into the question of surrender by the Indian State on the ground that the Indian State has violated certain conditions on which extradition was granted. When the said order was carried in appeal before the Supreme Court of Justice, which by order dated 13.12.2007, remitted the matter to the Court of Appeals to enquire whether there has been violation of any condition as alleged by the appellant. The Court of Appeals, by order dated 13.10.2008, has adjourned the matter till this Court passes a final order in the present case.
23) The main grievance of the appellant is that inasmuch as he being specifically extradited for trial of certain offences only, the present action of the Designated Court and the prosecution adding other offences without recourse to specific order from the Government of Portugal cannot be sustained.
Before us, learned counsel for the appellant administered the list of offences for which Government of Portugal agreed to and adding certain other charges which are in flagrant disobedience of the mandate of Section 21 of the Extradition Act as well as the solemn sovereign assurance of the Government of India. According to the appellant, the charges under Sections 3(4) , 5 and 6 of the TADA Act, Sections 4(b) and 5 of the Explosive Substances Act, Section 25 of the Arms Act, Section 9B of the Explosives Act and charges under Section 120-B, 387 and 386 of IPC and under Section 5 of TADA are all impermissible, contrary to the solemn sovereign assurance of the Government of India, the ministerial order of extradition of the appellant passed by the Government of Portugal, the judgment of the Court of Appeals as well as the Supreme Court of Portugal.
24) The parties are in agreement over the application of Section 21 of the Extradition Act, 1962 (which we have already extracted in the earlier part of our judgment) to the case of extradition of the appellant from Portugal to India on 11.11.2005. We have already pointed out that in the absence of formal treaty between India and Portugal, the request for extradition had been made under the International Convention on Suppression of Terrorist Bombings. By virtue of Notification dated 13.12.2002, the Government of India made the provisions of the Extradition Act applicable for the purpose of extradition of the appellant from Portugal to India. It is also pointed out that in the ministerial order dated 28.03.2003, the Government of Portugal rejected the request for extradition of the appellant for the offences under Sections 201, 212, 324, 326, 427 of the Indian Penal Code, Sections 3(4), 5 and 6 of the TADA Act, Sections 4 & 5 of the Explosive Substances Act, Section 9B of the Explosives Act and Section 25(1A) and (1B) of the Arms Act. Similarly, the Government of Portugal rejected the request for extradition of the appellant for the offences under Sections 120-B, 387 and 386 IPC and under Section 5 of the TADA Act. The said Notification dated 11.04.2003 was published in the official gazette of the Government of Portugal specifying the offences for which consent for extradition was granted. Learned counsel for the appellant has pointed out that the Court of Appeals and the Supreme Court of Portugal confirmed the ministerial order and the Notifications. The Supreme Court of Portugal specifically referred to the "Principle of Speciality" and the assurances given by the Government of India regarding the fulfillment of the speciality rule. The pith and substance of the argument of the counsel for the appellant is that once the appellant has been brought to India on the basis of the extradition treaty, he can only be tried for offences mentioned in the extradition decree for which his extradition had been sought and not for other offences. He also pointed out that the Designated Court has no jurisdiction to try the appellant for such offences. He relied on the judgment of this Court in Daya Singh Lahoria vs. Union of India & Ors., (2001) 4 SCC 516. Learned counsel pressed into service the following principles in respect of "Doctrine of Speciality" as discussed in pages 521-522 of the judgment:
"The doctrine of speciality is yet another established rule of international law relating to extradition. Thus, when a person is extradited for a particular crime, he can be tried for only that crime. If the requesting State deems it desirable to try the extradited fugitive for some other crime committed before his extradition, the fugitive has to be brought to the status quo ante, in the sense that he has to be returned first to the State which granted the extradition and a fresh extradition has to be requested for the latter crime. The Indian Extradition Act makes a specific provision to that effect. In view of Section 21 of the Indian Extradition Act, 1962 an extradited fugitive cannot be tried in India for any offence other than the one for which he has been extradited unless he has been restored to or has had an opportunity to return to the State which surrendered him. The doctrine of speciality is in fact a corollary to the principles of double criminality, and the aforesaid doctrine is premised on the assumption that whenever a State uses its formal process to surrender a person to another State for a specific charge, the requesting State shall carry out its intended purpose of prosecuting or punishing the offender for the offence charged in its request for extradition and none other. (See M. Cherif Bassiouni -- International Extradition and World Public Order.) In the book International Law by D.P. O'Connell, the principle of speciality has been described thus:
"According to this principle the State to which a person has been extradited may not, without the consent of the requisitioned State, try a person extradited save for the offence for which he was extradited. Many extradition treaties embody this rule, and the question arises whether it is one of international law or not."
The United States Supreme Court, while not placing the rule on the plane of international law, did in fact arrive at the same conclusion in the case of United States v.
Rauscher. The Supreme Court denied the jurisdiction of the trial court even though the Treaty did not stipulate that 4 there should be no trial and held: (US pp. 429-30:L Ed p.
432) "[T]he weight of authority and of sound principle are in favour of the proposition that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."
In view of the aforesaid position in law, both on international law as well as the relevant statute in this country, we dispose of these cases with the conclusion that a fugitive brought into this country under an extradition decree can be tried only for the offences mentioned in the extradition decree and for no other offence and the criminal courts of this country will have no jurisdiction to try such fugitive for any other offence. This writ petition and special leave petitions are disposed of accordingly."
If we apply the above principles in terms of the order of the Government of Portugal, the Designated Court/Prosecution cannot go beyond the various offences mentioned in extradition decree. Mr. Gopal Subramaniam, learned Solicitor General and Mr. H.P. Rawal, learned Additional Solicitor General explained the "Rule of Speciality". Learned Solicitor General has highlighted his arguments by way of an illustration, namely, a defendant extradited to UK is entitled to the speciality protection contained in Section 146 of Extradition Act, 2003 (C.41). In other words, following his extradition, he may only be tried in respect of the offences specified in that section. The offences specified in Section 146(3) are as follows:
(a) the offence in respect of which the defendant is extradited;
(b) an offence disclosed by the information provided to the category 1 territory in respect of that offence;
(c) an extradition offence in respect of which consent to the defendant being dealt with is given on behalf of the territory in response to a request made by the appropriate judge;
(d) an offence which is not punishable with imprisonment or another form of detention;
(e) an offence in respect of which the person will not be detained in connection with his trial, sentence or appeal;
(f) an offence in respect of which the person waives the right that he would have (but for Section 146(6)(f) not to be dealt with for the offence.
25) The "Rule of Speciality" has been succinctly explained in the treatise "The Law of Extradition and Mutual Assistance". (Second Edition by Clive Nicholls QC, Clare Montgomery QC, Julian B. Knowles - Oxford Publication) by way of the following example:
"The operation of the speciality principle in this context can be illustrated by an example, based on the facts of Kerr and Smith (1976) 62 Cr
