Supreme Court of India
ABU SALEM ABDUL QAYOOM ANSARIversusSTATE OF MAHARASHTRA & ANR.
- Citation
- 2010 INSC 602
- Decided
- 10 September 2010
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
Under Section 21(b) of the Extradition Act, 1962, an extradited person may be tried for the offences for which extradition was granted and for any lesser offence disclosed by the facts, so there is no breach of the rule of speciality.
Summary
Abu Salem, an absconding accused in the 1993 Bombay bomb blasts, was arrested in Portugal and extradited to India under the International Convention for the Suppression of Terrorist Bombings and the Indian Extradition Act, 1962 (applied to Portugal by a 2002 notification). Portugal granted extradition for certain offences but denied it for others. After his return, Indian courts tried him for all the charges, including those not specifically covered by the extradition order. The appellant challenged this on the ground that it violated Section 21 of the Extradition Act and the principle of speciality. The Supreme Court held that Section 21(b) permits trial for the extradited offences and any lesser offences disclosed by the facts, and that no violation of the rule of speciality occurred. Consequently, the appeals and writ petition were dismissed and the trial was ordered to proceed.
Issues considered
- The applicability of Section 21 of the Extradition Act, 1962 to the trial of an extradited person for offences not expressly listed in the extradition decree
- Whether the doctrine of speciality (rule of speciality) bars prosecution for offences beyond those for which extradition was granted
- Whether the accused may be tried for "lesser offences" as defined under Section 21(b)
- The effect of the assurances given by the Indian Government regarding death penalty and imprisonment beyond 25 years
- The propriety of separating the appellant's trial from the main trial
Legislation cited
- Arms Act, 1959s. 25(1A), s. 25(1B), s. 26, s. 29, s. 3, s. 35, s. 7(a)
- Code of Criminal Procedure, 1973s. 173(8), s. 299
- Explosive Substances Act, 1908s. 3, s. 4, s. 5, s. 6
- Extradition Act, 1962s. 19, s. 21, s. 3
- Indian Penal Code, 1860s. 1208, s. 120B, s. 201, s. 302, s. 307, s. 324, s. 326, s. 364A, s. 365, s. 384, s. 386, s. 387, s. 427, s. 435
- International Convention for the Suppression of Terrorist Bombingss. Article 1(3)(d), s. Article 2(1), s. Article 2(3)
- Notification GSR‑822(E) dated 13‑12‑2002
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3, s. 4, s. 5
Subjects
extraditionrule of specialitylesser offencereciprocityinternational conventionTADAArms ActExplosive Substances Acthuman rightstrial separationnon‑inquiry
Judgment
[201 OJ 13 (ADDL.) S.C.R. 8
A ABU SALEM ABDUL QAYOOM ANSARI
v.
STATE OF MAHARASHTRA & ANR.
(Criminal Appeal No. 990 of 2006)
SEPTEMBER 10, 2010
B
[P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.]
· Extradition Act, 1962 - ss. 21 and 19 - Absconded
accused charged under various provisions of /PC, TADA,
C Arms Act and the Explosive Substances Act - The accused
detained in Portugal - No formal extradition treaty existed
between Portugal and India - Indian Government by a
Notification, making the Extradition Act applicable to Portugal
- India making request to Portugal for extradition of the
o accused under International Convention on Suppression of
Terrorist Bombings - India also assuring that the accused, if
extradited, would not be visited by death penalty or
imprisonment beyond 25 years - Portuguese Go~·ernment
extradited the accused for Section 1208 rlw. s. 302 /PC and
E s. 3(2) TADA among others, but denied extradition for s. 25
(1A) and (128) of Arms Act and ss. 4 and 5 'or Explosive
Substances Act - India also assured that oocused would not
be tried for the offences other than those for which extradition
sought - After extradition, accused tried for all the offences -
F Accused challenged before Supreme Court of India as well
as Portuguese courts, his trial for the offence.....for which
extradition was not granted - Portuguese Court adjourned the
matter till the disposal of the matter in the instant cases by
Supreme Court - Held: The extradition of the accused. was
not only under the provisions of the convention, but also in
G the light of the principle of reciprocity made applicable
through the application of the Act to the Portugal and also the
provisions of the Act applicable to Non- Treaty States - Trial
of the extradited accused is permissible u/s. 21 for 'lesser
H 8
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 9
MAHARASHTRA
offences', even if the same are not covered by extradition A
Decree - There has been no violation of Rule of Speciality -
Penal Code, 1860 - s. 1208 r/w. ss. 324, 326, 427, 435, 121,
121A, 122, 307, 302 and 201 - Terrorist and Disruptive
Activities (Prevention) Act, 1987 - ss. 3, 4 and 5 - Arms Act,
1959- ss. 3, 7(a), 25(1A), 25(1AA) 26, 29 and 35- Explosive B
Substances Act, 1908 - ss. 3, 4, 5 and 6 - Convention on
Suppression of Terrorist Bombing - Articles 2(1) and (3) and
1(3)(d) - Notification No. GSR-822 (E) dated 13. 12. 2002
issued by Government of India
International Law - The term 'extradition' - Explained.
c
Criminal Trial - Separation of trial - Absconded accused
charged under various provisions of /PC, TADA, Arms Act
and Explosive Substances Act alongwith 189 accused - On
the detention of the absconded accused, trial of the accused D
separated from the trial of the other 123 accused whose trial
was nearing completion - Propriety of separation of the trial
- Held: On facts, separation of trial was correct - Code of
Criminal Procedure, 1973.
E
Doctrines:
Doctrine of 'Speciality' - Applicability of.
Doctrine of 'Reciprocity' - Applicability of.
F
Rule of non-inquiry - Applicability of.
Doctrine of 'Double Criminality' - Applicability of
Doctrine of 'Clean Slate' - Applicability of
G
Words and Phrases:
'Extradition' - Connotation of
'Lesser Offence' and 'Minor Offence'- Difference between
H
10 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 'Lesser Offence'- Meaning of, in the context of s. 21 of
Extradition Act, 1962.
The Appellant-accused, and 189 other accused
persons, were charged with offences punishable u/s.
120B r/w. ss. 324, 326, 427, 435, 121, 121-A, 122, 307, 302
8
and 201 IPC r/w. SS. 3, 4 and 5 of TADA Act r/w. SS. 3, 7
(a), 25 (1A), 25 (1AA), 26, 29, 35 of Arms Act, 1959 r/w. ss.
3, 4, 5 and 6 of the Explosive Substances Act, 1908 in
connection with the serial bomb Blast cases of ·1993 in
Bombay, The appellant was one of the 44 absconders.
C He was declared proclaimed offender. The Designated
Court issued non-bailable warrant against him and
INTERPOL also issued Red Corner''Notice for his arrest.
Portuguese police detained the appellant on the
D basis of the Red Corner Notice. As no formal extradition
treaty existed between India and Portugal, Government
of India requested the Portuguese Government for
extradition of the appellant under the International
Convention on Suppression of Terrorist Bombings.
E Government of India also, by Notification dated
13.12.2002; made the Extradition Act applicable to the
Republic of Portugal. Indian Government gave assurance
to the Government of Portugal that the accused, if
extradited would not be visited by death penalty or
F imprisonment for a term beyond 25 years. In pursuance
to the above assurance, ministerial order was passed by
the Portuguese Government admitting extradition of the
accused amongst others for Section 120B r/w. s. 302 IPC,
s. 3(2) TADA. However, the order declined extradition for
G Section 25(1A) and (12B) of the Arms Act and Sections 4
and 5 of Explosive Substances Act. The Ambassador of
India gave further assurance that the accused would not
be tried for offences other than those for which
extradition was sought for, and they would not be
extradited to any third country. Ultimately, the Supreme
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 11
MAHARASHTRA
Court of Justice of Portugal permitted extradition in view A
of the assurance of the Government of India. The order
was also confirmed by the Constitutional Court of
Portugal. The custody of the appellant was handed-over
to the Indian Authorities.
Thereafter, prosecution filed an application before B'
the Designated Court, seeking separation of the trial of
the appellant-accused from the main trial. The appellant-
accused also filed an application seeking production of
relevant record of extradition and seeking joint trial
alongwith the 123 accused, whose trial was nearing c
completion. The Designated Court allowed separation of
trial and held that the appellant could be tried for all the
offences because 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. D
The appellant-accused filed instant appeals against
the orders of the designated court framing charges
against him and allowing separation of his trial from the
main trial in the Bombay Blast case. He also filed a writ E
petition under Article 32 of the Constitution of India. In
addition thereto, he also moved an application before the
Portuguese Court of Appeal complaining that he was
being tried in India in violation of Principles of Speciality
as contained in Article 16 of Law 144/991 wherein the F
Court expressed its inability to enquire into the question
of surrender by the Indian State. In the appeal against the
order, the Supreme Court of Justice of Portugal remitted
the matter to the Court of Appeals to enquire whether
there was any violation of the conditions as alleged. The G
Court of Appeals adjourned the matter till the final order
is passed by the Supreme Court of India in the instant
cases.
The appellant contended that his trial for the offences
H
12 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A for which he has not been specifically extradited, is in
flagrant disobedience of the mandate of s. 21 of Indian
Extradition Act as well as the solemn sovereign
assurance of the Government of India, the ministerial
order of extradition passed by the Government of
B Portugal, the judgment of the Court of Appeals as well as
Supreme Court of Portugal; that he was being wrongfully
tried by the Designated Court in violation of the
extradition decree and breaching the 'principle of
Speciality'. He also contended that because of the
c separation of his trial from the trial of the 123 accused,
he would forego the opportunity to cross-examine the
witnesses.
Dismissing the appeals and the writ petition, the
Court
D
HELD:
Per Sathasivam,J.
1.1 The term 'extradition' denotes the process
E 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
competentto try the alleged offender. Though extradition
F 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
G 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
H to justice. [Para 11] [34-E-H; 35-A]
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 13
MAHARASHTRA
1.2 The appellant has been charged within the A
permissible scope of Section 21 (b) of the Extradition Act,
1962 and the Designated Court has not committed any
illegality in passing the impugned orders. No bar has
been placed by the Portuguese Courts for the trial of
lesser offences in accordance with the provisions B
contained under Section 21(b) of the Extradition Act,
although Portuguese Courts were aware of the said
provisions of Extradition Act. [Paras 32 and 35] [63-C-D;
64-D]
1.3 The Doctrine of Specialty is a universally C
recognized principle of international law and partakes of
doctrines of both double criminality and reciprocity.
Indian Extradition Act, 1962 also recognizes the Doctrine
of Specialty in $ection 21 of the Act. Unlike the law in
United Kingdom, United States and Portugal, the law in D
India only permits the extradited person to be tried for
lesser offence disclosed by the facts proved for the
purpose of securing his surrender. Apart from the said
offence being made out from the facts proved by the
Indian authorities for the surrender of the fugitive, the E
additional indictment, if any, has to be lesser than the
offences for which the extradition has been granted.
[Paras 25 and 26] [56-F-H; 57-A-B]
Suman Sood @ Kamaljeet Kaur vs. State of Rajasthan F
(2007) 5 sec 634 - relied on.
Daya Singh Lahoria vs. Union of India and Ors. (2001)
4 sec 516 - referred to.
"The Law of Extradition and Mutual Assistance". (Second G
Editionby Clive Nicholls QC, Clare Montgomery QC, Julian B.
Knowles -Oxford Publication Halsbury's laws of England, 4th
Ed., Vol. 18, Para246; American Jurisprudence, 2nd Ed.,
Vol. 31A - referred to.
H
14 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 1.4 The assumption of the appellant that since he had
been extradited under International Convention for the
Suppression of Terrorist Bombings, he can be tried only
for the offences which are related to the said Convention,
cannot be sustained. If the said claim is accepted, it
B would be contrary to the judgment of the Constitutional
Court of Portugal and it also shows the ignorance of the
appellant towards the Notification dated 13.12.2002,
issued by the Government of India making the Extradition
Act applicable to Government of Portugal except Chapter
c Ill. The Court has not granted extradition merely on the
basis of Extradition Treaty but also on the basis of
reciprocity. Pursuant to Section 3 of the Act, the order of
the Government of India GSR-822(E) dated 13.12.2002
was approved and published ensuring due regard for the
0 principle of reciprocity. [Para 27) [59-G-H; 60-A-C]
1. 5 It is true that there is no Extradition Treaty
between India and Portugal. However, the laws of both
the countries permit entertaining request for extradition
from Non-Treaty States also. The extradition request was
E made to the Government of Portugal by the Government
of India under the provisions of the Extradition Act
applicable to Non-Treaty States i.e. Section 19 of the Act.
Although the Convention was also relied upon for the
extradition, it was not the sole basis as is apparent from
F the Letter of Request. The primary consideration for the
request of extradition was the assurance of reciprocity.
The Notification dated 13.12.2002 by the Government of
India directing that the provisions contained in the
Extradition Act shall be applicable to the Republic of
G Portugal was issued keeping in view the said principle
of reciprocity. For the purpose of extradition
proceedings, the appellant was treated as a fugitive
criminal as defined under Section 2(f) of the Extradition
Act. The provisions of the Extradition Act are applicable
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 15
MAHARASHTRA
in respect of the extradition of the appellant-accused. The A
Court of Appeals of Lisbon has recognized this principle
of reciprocity and the applicability of the provisions of the
Extradition Act to the Republic of Portugal. The Supreme
Court of Justice and Constitutional Court of Portugal
have also approved it. None of these courts have B
mentioned in their orders that the accused could not be
tried in India for the offences for which his trial could take
place as per the domestic laws of India. [Para 28] [60-D-
H; 61-A-B]
1.6 A bare reading of Section 21 of the Extradition Act C
would indicate that the appellant-accused can be tried for
the offences for which he has been extradited. The
Supreme Court of Justice, Portugal has granted
extradition of the appellant for all the offences mentioned
in para-1 of the order dated 27 .01.2005. In addition, he can D
also be tried for lesser offence/offences in view of
Section 21 of the Extradition Act disclosed by the facts
proved for the purposes of securing his surrender.
'Lesser offence' means an· offence which is made out
from the proved facts and provides lesser punishment, E
as compared to the offences for which the fugitive has
been extradited. The offence has to be an extradition
offence, as defined under Section 2 (c) (ii) of the Act i.e.
an offence punishable with imprisonment for a term
which shall not be less than one year under the laws of F
India or of a foreign State. The 'lesser offence' cannot be
equated with the term 'minor offence' as mentioned in
Section 222 Cr.P.C .. The Legislature has deliberately used
the word "lesser" in Section 21 (b) of the Extradition Act
instead of the word "minor". Thus, the punishment G
provided for the offence is relevant and not the
ingredients for the purposes of interpretation of the term
"lesser offence". [Para 29) [61-B-G)
1.7 The plea of the appellant that he can be tried only
for the offences covered under Article 2(1) of the H
16 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Convention is misconceived in view of the fact that he
was extradited not only under the Convention but also
in the light of the principle of reciprocity made applicable
through the application of the Extradition Act to the
Republic of Portugal. A complete reading of Article 2 of
B the Convention makes it clear that it deals not only with
those accused who commit the substantive offences as
defined in Article 2(1) but also includes all the
conspirators and those who have constructive liability for
commission of the substantive offences as per clause (3)
C of Article 2 of the Convention, which fact has also been
mentioned by the Supreme Court of Justice, Portugal in
its order. Further, sub-clause (d) of Article 1(3) of the
Convention makes it abundantly clear that the explosive
or lethal device means a weapon or device i.e. designed,
or has the capability to cause death, serious bodily injury
0
or substantial material damage through its release etc.
AK-56 rifles are the weapons/devices, which have the
capability to cause death and serious bodily injury
through the release of cartridges and are covered under
the said Article. The appellant has been charged for
E possession, transportation and distribution of AK-56
rifles, their ammunitions as well as hand-grenades, which
were illegally smuggled into the country in pursuance of
the criminal conspiracy. [Para 30) [61-G-H; 62-A-E]
F 1.8 There has been no violation of Rule of Speciality
and the Solemn Sovereign Assurance given by the
Government of India in the letter dated 25.05.2003 of the
Indian Ambassador to the Government of Portugal
regarding the trial of the appellant-accused. The said
G assurance of the Indian Ambassador was given to the
effect that the appellant will not be prosecuted for the
offences other than those for which his extradition has
been sought and that he will not be re-extradited to any
other third country. There has been no violation of Rule
H of Speciality. As per the Government of India Gazette
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 17
MAHARASHTRA
Notification dated 13.12.2002, all the provisions contained A
under the Extradition Act are made applicable in respect
of the extradition of the appellant except those contained
in Chapter Ill of the Act. The Court of Appeals in Lisbon,
has recognized this principle of reciprocity and the
applicability of the provisions of Extradition Act to B
Portugal. The Supreme Court of Justice and
Constitutional Court of Portugal have also approved it.
In view of the fact that the provisions of the Extradition
Act, 1962 have been made applicable to Portugal,
provisions contained in Section 21 of the Act would come c
into operation while conducting the trial of the appellant.
[Para 31] [82-E-H; 83-A-B]
1.9 In the light of the Notification of the Government
of India about the applicability of the Extradition Act the
additional charges that have been framed, fit well within D
the Proviso to Section 21 (b) of the Extradition Act. The
offences with which the appellant has been additionally
charged are lesser than the offences for which the
appellant has been extradited i.e., the offences with which
the appellant is charged are punishable with lesser E
punishment than the offence for which he has been
extradited. The extradition granted in the instant case had
due regard to the facts placed which would cover the
offences with which the appellant has been charged. The
offences are disclosed by the same set of facts placed F
before the Government of Portugal. [Para 33] [63-E-G]
2. There is no basis in the apprehension raised by
the appellant that because of the separation of the trial,
he would forego the opportunity to cross-examine the G
witnesses. The order dated 24.08.2009 has granted the
appellant an opportunity to submit a list of witnesses
examined in the main trial for cross-examination. This
grievance has been dealt with in separate set of
proceedings. [Para 34] [64-8-C]
H
18 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Per Asok Kumar Ganguly, J. (Concurring)
HELD: 1. In India, extradition has not been defined
under the Extradition Act 1962. But extradition is different
from deportation by which competent State authorities
B order a person to leave a country and prevent him from
returning to the same territory. Extradition is also
different from exclusion, by which an individual is
prohibited from staying in one part of a Sovereign State.
Both deportation and exclusion basically are non-
e consensual exercise whereas extradition is based on a
consensual treaty obligation between the requesting
State and the requested State. Extradition, however, is
only to be resorted to in cases of serious offences.
Extradition treaties and legislation are designed to
0 combine speed and justice . [Paras 6, 8 and 9) [65-C; 66-
B-E]
Gerhard Terlinden vs. John C. Ames, Re Evans - 1994
(3) All E.R. 449- referred to.
E "International Extradition and World Public Order, 1974,
Oceana Publications" - referred to.
2. Doctrinally speaking, Extradition has five
substantive ingredients. They are: (a) reciprocity, (b)
F double criminality, (c) extraditable offences, (d) specialty
and (e) non inquiry. In India, the Act suffered an
amendment in 1993, by Act 66of1993. As a result thereof
Section 21 has been completely recast and the doctrine
of Specialty has been introduced. The amendment
enables the requesting State to try the fugitive for a lesser
G offence without restoring him to the requested State. In
fact the doctrine of specialty is in fact a corollary to the
principle of double criminality, and is founded on policy
and expediency and on the basic principle of reciprocity.
It is thus a universally recognized principle of
H international law and partakes of doctrines of both double
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 19
MAHARASHTRA
criminality and reciprocity. [Paras 25, 26, 27 and 28] [71- A
E-F; 73-D-G]
3. A fair balance has to be struck between Human
Rights norms and the need to tackle transnational crime.
The extradition law has to be an amalgam of international
B
and national law. Normally, in extradition law the
requested State is to follow the rule of Non-Inquiry which
means that the requested State is not to normally make
inquiry about the nature of criminal justice system in the
requesting State. That is why in the instant case, on a C
complaint being made by the appellant in the Court of the
requested country, the Courts of Portugal await the
decision of this Court. The actual conduct of trial of the
extradited ~ccused is left to the criminal jurisprudence
followed in the requesting State. However, non-inquiry is
not an absolute principle. In a given situation, the D
requested State may question the procedures in the
requesting State if they are prima facie contrary to
fundamental principles of justice and there is a high risk
of the fugitive being prejudiced by the process of
extradition. Obligations entered by many countries of the E
world, including India, in the form of Covenant on Civil
and Political Rights, and The Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment (to which India is a Signatory), would
preclude a total and unconditional observance of the F
principle of non-inquiry. Even though, non- inquiry is not
an absolute doctrine, but in the facts of the instant case,
it operates. [Paras 10, 11 and 16] [66-G; 67-D-F; 69-D-E]
Soering vs. United Kingdom 1989 (11) EHRR 439; G
Canada vs. Schmidt (1987) 1 SCR 500 - referred to.
4. In the instant case, extradition has been allowed
by the requested State on the specific undertaking of the
Government of India that the extradited criminal will not
be subjected to death penalty or imprisonment beyond H
20 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 25 years. Therefore, the basic human rights
considerations have been taken into account and the
guidelines in Soering case have been adhered to . Thus,
primacy has been accorded to human rights norms in the
extradition process. [Para 24] [71-C-D]
B
Soering vs. United Kingdom 1989 (11) EHRR 439 -
referred to.
5. This position of extraditable offences, and the
obligations of the requesting State can further be
C understood, if one bears in mind the fact that the
doctrines of double criminality and specialty are both
safeguards of the individual rights of the extraditee wtio
should not be tried on unexpected counts, as well as the
rights of the requested State to have its laws and
D processes given adequate deference by the requesting
State. It is not only a means to protect the person from
unexpected prosecution, but also a preventive guard
against the abuse of the legal process of the requested
State. While the first takes care of the individual's right,
E the second takes care of the rights of a sovereign State.
[Para 31] [74-F-H; 75-A]
6. Section 21 of Extradition Act is in keeping with the
rule of double criminality, which requires a mutually
F acceptable position between the requesting as well as
the requested State on all the aspects of the criminal act
committed by the person who is to be extradited. This
understanding is not about an agreement as to the
specifics, but rather a consensus ad idem in the
contractual relationship between two sovereign States.
G [Para 30] [74-C-D]
Extradition in International Law (1971) at page 137 -
referred to.
H 7. In the instant case, the insistence of the Central
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 21
MAHARASHTRA
Government on trying the appellant for lesser offences A
is permissible, both under the Extradition Act as well as
under the Convention for Suppressing Terrorist
Bombings. The Convention fills up a huge void in
international law by expanding the legal framework and
enabling several States to co-operate in the investigation, B
prosecution and extradition of several persons who are
engaged in such international terrorism. It is of utmost
importance as it strengthens international law
enforcement in controlling international terrorism. This
Convention is structured on prior counter terrorism C
conventions adopted by the United Nations. It calls upon
the member parties to declare certain specified conducts
to be criminal activities and to initiate prosecution for
them, and to extradite persons who have committed such
conduct in one country and are staying in another
0
country. But unlike its pre~ecessors, this Convention
does not define terrorism. However, it points out
particular conducts, regardless of the motive, as
internationally condemnable. Thus, this convention is of
crucial importance· in the field of international law
enforcement devices. [Paras 17, 19 and 20) [69-F; 70-A- E
E]
The International Convention for the Suppression of
Terrorist Bombings by Samuel M. Witten; American Journal
of International Law, Vol.92, No.4(October1998) pp.774-781 F
- referred to.
8. There are two ways in which to describe a lesser
crime. Either every single element of a lesser crime
should be component of the greater crime on the basis
of their statutory definitions; or the allegations of the G
larger crime in the indictment should include all the
factual details of the lesser crime. Section 21 (b) of the Act
seems to embody the latter of these two principles. This
means that a crime which can be framed from out of the
H
22 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R
A factual averments themselves (i.e. evidence submitted)
before the requested State at the time of extradition, can
be the one upon which the fugitive can be tried. A lesser
crime can be a cognate crime, in that it shares its roots
with the primary crime, even though it may be
B independent of it. [Paras 21 and 22] [70-F-H; 71-A]
Submission of Lesser Crimes, Columbia Law
Review, Volume 56(6),1956 pp. 888-902 - referred to.
9. As long as the facts that have been submitted
C before the requested State prima facie show the guilt of
the extraditee in a foreseeable and logically consistent
way, the said person can be tried on all such counts that
can be conclusively proved against him or her. [Para 32]
[75-8]
D
Case Law Reference:
In the Judgement of P. Sathasivam, J:-
(2001) 4 sec 516 referred to Para 24
E (2001) 5 sec 634 relied on Para 26
In the Judgment of Asok Kumar Ganguly, J:
1994 (3) All E.R. 449 referred to Para 9
F
1989 (11) EHRR 439 referred to Para 10
(1987) 1 SCR 500 referred to Para 10
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 990 of 2006.
From the Judgment & Order dated 18.03.2006 &
13.06.2006 of the Designated Court, Arthur Road Jail, Mumbai
in Bombay Blast Case No. 1 of 1993.
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 23
MAHARASHTRA
WITH A
W.P. (Crl.) No. 171 of 2006, Crl. A. No. 1142-1143 of 2007.
lrshad Ahmed, Arvind Kumar Shukla, S. Pasbola, Prem
Malhotra, Mrinmayee Sahu, Rishi Malhotra for the Appellant.
B
Gopal Subramaniam, SG, H.P. Rawal, ASG, Ranjana
Narayan, Satyakam, Arvind Kumar Sharma, P. Parmeswaran,
Arun R. Pednekar, Sanjay Kharde, Asha G. Nair, Ravindra
Keshavrao Adsure, V.N. Raghupathy for the Respondents.
The Judgment of the Court was delivered by
c
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 D
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. E
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
F
Designated Court at Arthur Road Jail, Mumbai in RC No.1 (S/
93)/CBl/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.
G
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
1208, 302, 307, 387, 382 IPC and under Sections 3(2)(i),
3(2)(ii), 3(3), 3(5) and 5 of the TADA Act. H
24 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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.
B 1 (S/93)/CBl/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
C 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
0 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
E 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
F in the Mumbai City which resulted in death of 257 persons,
injuries of various types to 713 persons and destruGtion 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
G 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
H said bomb explosions and subsequent recovery of arms,
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 25
MAHARASHTRA [P. SATHASIVAM, J.]
ammunitions and explosives, which were illegally smuggled into A
the country with the intention to commit the said terrorist acts.
On completion of investigation, it was disclos.ed 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 B
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(1M}, 26, 29, 35 of c
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 0
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 E
AK-56 rifles, pistols, hand-grenades, ammunitions and ROX
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 F
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. G
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, Di$t. Bharuch. In the second week of .
January, 1993, on the instructions of absconding accused,
H
26 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 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.
8 (d) On 12.03.1993, ROX 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
C the rooms of 3 five-star Hotels, namely, Hotel Sea Rock,
Sandra, 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
D 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
E 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
F 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
G 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
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 27
MAHARASHTRA [P. SATHASIVAM, J.]
issued a Red Corner Notice No. A-103/3-1995 for his arrest. A
(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), B
3(3), 3(4), 5 and 6 of the TADA Act read with Sections 302,
307, 326, 324, 427, 435, 436, 201and212 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 C
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 D
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 E
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 F
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 G
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, CBl/STF.
H
28 SUPREME COURT REPORTS [2010] 13 (ADDL) S.C.R.
A (i) On 13.12.2002, the Government of India issued Gazette
Notification No. G.S.R.822(E) in exercise of tile 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-Ill, shall apply to the Portuguese Republic with
B effect from 13.12.2002.
0) 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,
C 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,
D gave another assurance that in the event of extradition of the
appellant- Abu Salem, he will :
(i) not be prosecuted for offences other than those for
which his extradition has been sought.
E
(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,
F 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
G 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
H of Portugal. The maximum sentence prescribed under the
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 29
MAHARASHTRA [P. SATHASIVAM, J.]
Indian Laws for these offences is mentioned here under: A
S. Offence Maximum
No. Punishment
(i) The offence of criminal conspiracy Death Penalty in the
punishable u/s. 1208 IPC case present
B
(ii) Murderpunishable U/s. 302 IPC Death Penalty
(iii) Attempt to murder punishable u/s. Imprisonment for
307 IPC Life
(iv) Mischief punishable u/s. 435 IPC Imprisonment for 7
years c
(v) Mischief by fire or explosive Imprisonment for
punishable u/s. 436 IPC Life
(vi) Offence punishable u/s. 3(2) of Death Penalty in this
TADA (P) Act. case
(vii) 3(3) of TADA (P) Act Life lmprisonmer].t D
(viii) . Section 3 of Explosive Life Imprisonment
Substances Act, 1908
(ix) Offence punishable u/s. 4 of Imprisonment for 10
Prevention of Damage to years
Public Property Act
(I} 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 F
connection with the serial Bombay Bomb Blast Cases (CBI
Case RC No. 1 (S/93)/CBl/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/ . G
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 H
30 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 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.
8 (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
c (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
0 (P) Act, 1987.
(iii) Offence punishable under Section 5 of TADA (P)
Act. 1987.
(iv) Offence punishable under Section 6 of TADA (P)
E Act. 1987.
(v) Section 4(b) of the Explosive Substances Act,
1908.
(vi) Section 5 of the Explosive Substances Act, 1908.
F
(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.
G
(o) These charges have been framed by the Designated
. Court keeping in view the provisions contained under Section
21 of the Extradition Act, 1962.
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 31
MAHARASHTRA [P. SATHASIVAM, J.]
(p) The extradition order of the Supreme Court of Justice, A
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:-
B
S. Offence Maximum
No. Punishment
i) Section 5 of TADA (P) Act, 1987. Imprisonment for
Life
c
ii) Section 6 of TADA (P) Act, 1987. Imprisonment for
Life
iii) Section 4-b of Explosive Imprisonment for 20
Substances Act, 1908 years.
D
iv) Section. 5 of the Explosive Imprisonment for 14
Substances Act, 1908 years.
v) Section 25 (1-A) (1-B) (a) of Imprisonment for 10
Arms Act, 1959. years.
E
vi) Section 9-8 of Explosives Act, Imprisonment for 3
1884 years.
(q) The request for extradition of the appellant-Abu Salem
has been made relying on the assurance of reciprocity as F
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 G
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
H
32 SUPREME COURT REPORTS [2010] 13 (ADDL) S.C.R.
A 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
8 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
C 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
D 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
E 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 c_ompleted: It was further
submitted by the prosecution that 33 accused persons were in
F 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
G 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
H separated from the ongoing trial in progress. The Court further
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 33
MAHARASHTRA [P. SATHASIVAM, J.]
ordered that the said separated trial from that day (13.06.2006) A
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. B
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 c
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)/CBl/STF D
(Bomb Blast Case) and charges under Section 120B, 387 and
386 of the Indian Penal Code and t:1nder 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, E
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 F
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 I the nation by their deceitful behaviour in the field of
international law, breaching the principle of speciality G
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 H
34 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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
C 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
D 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
E 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
F
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
G 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
H as a part of the comity of nations that one State should
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 35
MAHARASHTRA [P. SATHASIVAM, J.]
ordinarily afford to another State assistance towards bringing A
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.
B
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 C
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 D
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 E
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
F
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 G
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
H
36 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
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
B 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 RCl(S) relating to the Bombay Bomb Blast case of
C 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
D 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
E 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,
F 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
G 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
H accused persons for the purpose of Section 299 of the Cr.P.C.
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 37
MAHARASHTRA [P. SATHASIVAM, J.]
On 18.09.2002, the appellant was detained by Portuguese A
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 B
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 otJustice, it is useful C
to refer certain provisions of the Extraditiori' 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: D
"2. Definitions.-ln this Act, unless the context otherwise
requires,-
(a) ... ..
E
(b) .... .
(c) extradition offence" means-
(i) in relation to a foreign State, being a treaty
State, ari offence provided for in the extradition F
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 G
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
H
38 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A 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
B
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
c 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 coml'T)ission of an
extradition offence in a foreign State.
(g) .....
D
(h) ·····
(i) ..... .
0) "treaty State" means a foreign State with which an
E
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 Ill shall apply to such foreign State or part
F 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
G 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;
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 39
MAHARASHTRA [P. SATHASIVAM, J.]
(b) it shall not remain in force for any period longer than A
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
B
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 C
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 D
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
E
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
F
(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 G
given its consent."
17. United Nations General Assembly adopted the
Convention for the Suppression of Terrorist Bombings on 15th
H
40 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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
c ABDUL QAYOOM ANSARI FROM THE PORTUGUESE
REPUBLIC ."'
I, Omar AQdullah, Minister of State for External Affairs,
Government of the Republic of India, relying on the
D 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
E 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
F
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
G 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
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 41
MAHARASHTRA [P. SATHASIVAM, J.]
Section 12(1)(b) of the Passport Act, 1967 and A
120-B (Punishment for Criminal Conspiracy) of
Indian Penal Code.
In connection with Criminal Case Nos. CR.1 (S)/93/
CBl/STF/Mumbai, RC 15(S)/97/CBl/STF/NE . Delhi B
and RC 34(A)/2002-CBl/Hyderabad of the Central
Bureau of Investigation;
And
Sections 387 (Putting person in fear of death); 506 c
(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 D
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 E
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/ F
02 dated 26/07/02 of Police Station Special Cell,
Lodhi Colony, New Delhi ·
And
Section 120-B (Punishment for Criminal G
Conspiracy) of Indian Penal Code; read with 302
(Punishment for Murder) of Indian Penal Code in
connection with Case FIR No. 849/98 of Police
Station, Hauz Khas, New Delhi.
H
42 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A And
Sections 120-B (Punishment for Criminal
Conspiracy) read with Section 384 (Punishment for
Extortion) of Indian Penal Code, in connection with
B Case FIR No. 850/98 of Police Station, Hauz Khas,
New Delhi
And
Section 302 (Punishment for Murder) of Indian
c 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
D
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,
E Mumbai.
Be surrendered to the Republic of India to be dealt
with according to law.
Particulars of the person whose extradition is being
F 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.
G
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.
H
·ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 43
MAHARASHTRA [P. SATHASIVAM, J.]
I, l')ereby, certify that all documents enclosed herewith A
have been authenticated, I have signed rny name and
caused my seal to be affixed hereunto at New Delhi today,
the 13th December, 2002.
Sd/- illegible B
(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 C
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
Ill, applicable to Portuguese Republic under sub-Section (1) of D
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 E
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. 1/11011 /90/2000-IS-IV December 17, 2002 F
Excellency,·
At the outset, I would like to express my deep
appreciation for your letter October 4, 2002 in response G
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 H
44 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 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
B
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 Abdl•I Qayoom Ansari is charged
with or accused of would attract the death penalty and life
c 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
D 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.
E
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,
F 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
G 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
H pardons, reprieves, respites or remissions of punishment
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 45
MAHARASHTRA [P. SATHASIVAM, J.]
or to suspend, remit or commute the sentence of any A
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 B
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 c
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
Governme~tf to commute a sentence of life imprisonment D
to a term fiot 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 E
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 F
imprisonment for a term beyond 25 years.
Please accept, your Excellency, the assurance of my
highest consideration.
Sd/- illegible G
(L.K. ADVANI)
H.E. MR. ANTONIO MARTINS DA CRUZ
MINISTER FOR FOREIGN AFFAIRS
PORTUGAL"
H
46 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
1208 read with Section 302 IPC, Section 3(2) of TADA.
However, the ministerial order declines extradition for Section
B 25(1A) and (1 B) 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.
c 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
D 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 offenc_es
contained in the request of prosecution with an exception of
offences punishable with death or life imprisonment. Aggrieved
E 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
F 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
G 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
H Article 9.3 of the said New York Convention which obliges the
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 47
MAHARASHTRA [P. SATHASIVAM, J.]
signatory State for extradition for offences covered under it A
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 B
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 C
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 · D
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 E
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 F
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 G
abovesaid 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 Speciality as contained in H
48 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A 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
B 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
C 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
D 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
E 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 98 of the
Explosives Act and charges under Section 120-B, 387 and 386
F 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.
G 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
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 49
MAHARASHTRA [P. SATHASIVAM, J.]
treaty between India and Portugal, the request for extradition A
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 B
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 c
Act, Section 98 of the Explosives Act and Section 25(1A) and
(1 B) 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
D
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
E
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 F
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 G
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 H
50 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A 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
B 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
c 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
D
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
E 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:
F "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
G 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
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 51
MAHARASHTRA [P. SATHASIVAM, J.]
the trial court even though the Treaty did not stipulate that A
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 B
brought within the jurisdiction of the court by virtu_e 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 C
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 D
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 E
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 F
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 G
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.
H
52 SUPREME COURT REPORTS (2010) 13 (ADDL.) S.C.R.
A 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
B 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
c 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
D be detained in connection with his trial, sentence
or appeal;
(t) an offence in respect of which the person waives
the right that he would have (but for Section 146(6)(t)
E 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
F 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 App R 210 (a case under the EA
G 1870). Suppose that a Part 3 warrant is submitted to
Denmark for the return of D for an offence of robbery under
Section 8(1) of the Theft Act 1968. The Part 3 warrant only
specifies the offence of robbery, however, the factual
account of the offence provided by the UK to Denmark
refers to D as having carried a sawn-off shotgun in the
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 53
MAHARASHTRA [P. SATHASIVAM, J.]
course of the robbery. This is an offence contrary to S. 18 A
of the Firearms Act, 1968. Extradition is granted.
D could be tried for robbery and for the S. 18 offence
because it was disclosed in the information provided to
Denmark and S. 146(6)(b) would therefore apply. If, B
however, evidence came to light that prior to the robbery
D had assaulted his wife, then he could not be tried for
this offence until after he had been given an opportunity
to leave the UK after serving his sentence for the robbery,
unless Denmark consented or he waived his rights. This C
is because the offence of assault did not form part of the
information supplied in support of the application for his
extradition."
Similar principle is found in Halsbury's laws of England, 4th
Ed., Vol. 18, Para 246: D
"Extradition and Fugitive Offenders
246. Trial on other charges. Where a person accused or
convicted of an extradition crime is surrendered by a
foreign State, theri, until he has been restored or had an E
opportunity of returning to the foreign State, he is not
triable and may not be tried for any offence committed
prior to the surrender in any part of Her Majesty's
dominions other than such of the extradition crimes as may
be proved by the facts on which the surrender is grounded. F
It follows that a person extradited on a particular charge
is triable for any other crime provable by the facts upon
which is surrender is grounded. Where the defendant
alleges that he is being tried for an offence which is not
an extradition crime the onus of proving that he was G
surrendered under extradition law is on him."
Similarly, the American Jurisprudence also recognizes that
slight variation in the description of the offence in the extradition
proceedings and in the subsequent indictment or information
Hi
54 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A does not violate the Rule of Speciality. Paragraph 155 of
American Jurisprudence, 2nd Ed., Vol. 31A, is pertinent in
this regard:
"155. Effect of Variation in charges; related and included
charges
B
A slight variation in the description of the offence in the
extradition proceedings and in the subsequent indictment
or information does not violate the rule of speciality, it is
generally sufficient if the facts shown in the extradition
c proceedings and those relied upon in the accusation and
at the trial are substantially the same, although the crime
itself may have a different name in the surrendering
country. And if extradition was based on several charges,
it is immaterial whether the trial is on all or any of them.
0 Although a returned fugitive may ordinarily be t~ied for any
offence included in the crime with which he has been
charged. But a person extradited as an accomplice may
be tried as a principal where the distinction between the
two has been abolished in the demanding state. Applying
E similar reasoning, the fact that an extradited person could
not be convicted of conspiracy, because the foreign country
took the position that the conspiracy charge was not
included in the list of offences giving rise to a treaty
obligation to extradite, did not prevent the United States
F from using evidence of a. conspiracy to convict the
defendant on the substantive counts."
The Rule of Speciality as contained in Article 16 of Law 144/
99 of Portugal recognizes that the speciality principle requires
that the extradited persons should be tried for the act or acts
G on the ground of which request for cooperation was made. It
is pointed out that the additional charges do not traverse
beyond the facts on which request for extradition of the
appellant was made by the Indian Government. The abovesaid
Portuguese Law on Speciality is reproduced hereunder:
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 55
MAHARASHTRA [P. SATHASIVAM, J.]
"Article 16-Rule of Speciality A
1. No person who, as a consequence of international
cooperation, appears in Portugal for the purpose
of participating in criminal proceedings, either as
a suspect an accused or a sentenced person, shall B
be proceeded against, sentenced or detained nor
shall he be in any way restricted in his personal
freedom, for any act committed prior to his
presence on the national territory, other than the act
or acts on the grounds of which the request for
cooperation was made by a Portuguese authority. C
2. No person who, in the same terms as above,
appears before a foreign authority shall be
proceeded against, sentenced, detained, nor shall
he be in any way restricted in his personal freedom, D
for any act committed, or any sentence passed,
prior to his leaving the Portuguese territory, other
than those mentioned in the request for
cooperation.
E
3. The surrender of a person to the requesting State
as mentioned in the preceding praragraph shall not
be authorized unless that State provides the
necessary guarantees to the eff~ct that the rule of
speciality shall be complied with.
F
4. The immunity that results from the provisions of this
Article shall cease to have effect:
(a) where it became possible for the person
concerned to leave the Portuguese territory G
or the territory of another State, as
applicable, and that person does not avail
himself of that possibility within a period of
45 days, or that person voluntarily returns to
one of the said territories;
H
56 SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.
A (b) where the State that authorized the transfer,
once the suspect, the accused or the
sentenced person have been heard,
consents to a derogation to the rule of
speciality.
B
5. The provisions of paragraphs 1 and 2 above do not
preclude the possibility of extending the
cooperation previously sought, by way of a new
request, to facts other than those on the grounds of
which the original request was made; the new
c request shall be prepared or examined, as
applicable, in accordance with the provisions of this
law.
6. Any request made under the provisions of the
D preceding paragraph shall be accompanied by a
document established by th~ competent authority,
containing the statements made by the person who
benefits from the rule of speciality.
E 7. Where the request is submitted to a foreign State,
the document mentioned in the preceding
paragraph shall be established before the "Tribunal
da Relacao" "1" (Court of appeal) that has
jurisdiction over the ara where the person who
benefits from the rule of speciality resides or is
F
staying."
in this regard, we may point out that Indian Extradition Act of
1962 also recognizes the Doctrine of Speciality in Section 21
of the Act which we have already extracted. The Doctrine of
G Speciality is a universally recognized principle of international
law and partakes of doctrines of both double criminality and
reciprocity.
26. Unlike the law in United Kingdom, United States and
H Portugal, the law in India only permits the extradited person to
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 57
MAHARASHTRA [P. SATHASIVAM, J.]
be tried for lesser offence disclosed by the facts proved for the A
purpose of securing his surrender. Apart from the said offence
being made out from the facts proved by the Indian authorities
for the surrender of the fugitive, the additional indictment, if any,
has to be lesser than the offences for which the extradition has
been granted. This Court while dealing with a similar issue B
relating to Section 21 (b) of the Extradition Act in Suman Sood
@ Kamaljeet Kaur vs. State of Rajasthan (2007) 5 SCC 634
observed as under:
"28. On behalf of Suman Sood, one more argument
was advanced. It was contended that extradition order in C
her case did not refer to Section 365 IPC but both the
courts convicted her for the said offence under Sections
365/120-B IPC which was illegal, unlawful and without
authority of law. Her conviction and imposition of sentence
for an offence punishable under Section 365 read with D
Section 120-B IPC, therefore, is liable to be set aside.
29. We find no substance in the said contention as
well. It is no doubt true that Section 365 IPC had not been
mentioned in the order of extradition. But as already seen E
earlier, Section 364-A IPC had been included in the
decree. Now, it is well settled that if the accused is charged
for a higher offence and on the evidence led by the
prosecution, the court finds that the accused has not
committed that offence but is equally satisfied that he has F
committed a lesser offence, then he can be convicted for
such lesser offence. Thus, if A is charged with an offence
of committing murder of B, and the court finds that A has
.not committed murder as defined in Section 300 IPC but
is convinced that A has committed an offence of culpable G
homicide not amounting to murder (as defined in Section
299 IPC), there is no bar on the court in convicting A for
the said offence and no grievance can be made by A
against such conviction.
30. The same principle applies to extradition cases. H
58 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A Section 21 of the Extradition Act, 1962 as originally
enacted reads thus:
"21. Accused or convicted person surrendered or
returned by foreign State or Commonwealth country not
to be tried for previous offence.-Whenever any person
B
accused or convicted of an offence, which, if committed
in India, would be an extradition offence, is surrendered
or returned by a foreign State or Commonwealth country,
that person shall not, until he has been restored or has had
an opportunity of returning to that State or country, be tried
c in India for an offence committed prior to the surrender or
return, other than the extradition offence proved by the
facts on which the surrender or return is based."
31. The section, however, was amended in 1993 by
D the Extradition (Amendment) Act, 1993 (Act 66 of 1993).
The amended section now reads as under:
"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
E
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-
F
(a) the extradition offence in relation to which he was
surrendered or returned; or
(b) any lesser offence disclosed by the facts proved
G for the purposes 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."
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 59
MAHARASHTRA [P. SATHASIVAM, J.]
' '
32. It is, therefore, clear that the general principle of A
administration of criminal justice applicable and all
throughout applied to domestic or municipal law has also
been extended to international law or law of nations and
to cases covered by extradition treaties.
B
33. In Daya Singh this Court dealing with amended
Section 21 of the Extradition Act, stated: (SCC p. 519,
para 3)
"The provision of the aforesaid section places restrictions
on the trial of the person extradited and it operates as a C
bar to the trial of the fugitive criminal for any other offence
until the condition of restoration or opportunity to return is
satisfied. Under the amended Act of 1993, therefore, a
fugitive could be tried for any lesser offence, disclosed
by the facts proved or even for the offence in respect of D
which the foreign State has given its consent. It thus
enables to try the fugitive for a lesser offence, without
restoring him to the State or for any other offence, if the
State concerned gives its consent."
E
34. Now, it cannot be disputed that an offence under
Section 365 /PC is a lesser offence than the offence
punishable under Section 364-A /PC. Since extradition
of Suman Sood was allowed for a crime punishable with
higher offence (Section 364-A !PC), her prosecution and F
trial for a lesser offence (Section 365 /PC) cannot be held
to be without authority of law. The contention, therefore,
has no force and is hereby rejected." (Emphasis supplied)
The ratio in the Suman Sosod (supra) is directly applicable to
the case on hand. G
27. The main grievance of the appellant, as stated above,
is that he had been extradited under International Convention
for the Suppression of Terrorist Bombings and therefore, he can
be tried only for the offences which are related to the said H
60 SUPREME COURT RE:PORTS [2010] 13 (ADDL.) S.C.R.
A Convention. The said assumption cannot be sustained. If the
said claim is accepted, it would be contrary to the judgment of
the Constitutional Court of Portugal and it also shows the
ignorance of the appellant towards the notification dated
13.12.2002, issued by the Government of India making the
B Extradition Act, 1962 applicable to Government of Portugal
except Chapter Ill. As rightly pointed out by the respondents that
the Court has not granted extradition merely on the basis of
Extradition Treaty but also on the basis of reciprocity. Pursuant
to Section 3 of the Act, the order of the Government of India
c GSR-822(E) dated 13.12.2002 had been approved and
published ensuring due regard for the principle of reciprocity.
In view of the same, the claim of the appellant is without any
substance.
28. As discussed earlier, it is true that there is no
D Extradition Treaty between India and Portugal. However, the
laws of both the countries permit entertaining request for
extradition from Non Treaty States also. The extradition request
was made to the Government of Portugal by the Government
of India under the provisions. of the Extradition Act applicable
E to Non Treaty States i.e. Section 19 of the Act. Although the
Convention was also relied upon for the extradition, as rightly
pointed out by the respondent, it was not the sole basis as is
apparent from the Letter of Request. The primary consideration
for the request of extradition was the assurance of reciprocity.
F The notification dated 13.12.2002 by the Government of India
directing that the provisions contained in the Extradition Act
shall be applicable to the Republic of Portugal was issued
keeping in view the said principle of reciprocity. For the
purpose of extradition proceedings, appellant-Abu Salem was
G treated as a fugitive criminal as defined under Section 2(f) of
the Extradition Act, 1962. We have already adverted to the
Gazette Notification dated 13.12.2002 making it clear that the
provisions of Extradition Act shall apply to Portuguese Republic
in accordance witl 1 the principle of reciprocity. The provisions
H of the Act are applicable in respect of the extradition of
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 61
MAHARASHTRA [P. SATHASIVAM, J.]
appellant-Abu Salem. The Court of Appeals of Lisbon has A
recognized this principle of reciprocity and the applicability of
the provisions of the Extradition Act, 1962 to the Republic of
Portugal. The Supreme Court of Justice and Constitutional
Court of Portugal have also approved it. None of these Courts
have mentioned in their orders that the accused could not be B
tried in India for the offences for which his trial could take place
as per the domestic laws of India.
29. We have already adverted to Section 21 of the
Extradition Act. A bare reading of the above section would C
indicate that the appellant-Abu Salem can be tried for the
offences for which he has been extradited. The Supreme Court
of Justice, Portugal has granted extradition of appellant-Abu
Salem for all the offences mentioned in para-1 of the order
dated 27.01.2005. In addition, Abu Salem can also be tried for
lesser offence/offences in view of Section 21 of the Extradition D
Act disclosed by the facts proved for the purposes of securing
his surrender. "Lesser offence"_.means an offence which is
made out from the proved facts and provides lesser punishment,
as compared to the offences for which the fugitive has been
extradited. The offence has to be an extradition offence, as E
defined under Section 2 (c) (ii) of the Act i.e. 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. The
lesser offence cannot be equated with the term "minor offence"
as mentioned in Section 222 of the Code of Criminal F
Procedure. The Legislature has deliberately used the word
"lesser" in Section 21 (b) of the ' Fxtradition Act instead of the
word "minor". Thus, the punishment provided for the offence is
relevant and not the ingredients for the purposes of
interpretation of the term "lesser offence". G
30. The contention of the appellant that he can be tried only
for the offences covered under Article 2(1) of the said
Convention is misconceived in view of the fact that he was
extradited not only under the said Convention but also in the H
62 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A light of the principle of reciprocity made applicable through the
application of the Extradition Act to the Republic of Portugal.
A complete reading of Article 2 of the said Convention makes
it clear that it deals not only with those accused who commit
the substantive offences as defined in Article 2(1) but also
B includes all the conspirators and those who have constructive
liability for commission of the substantive offences as per Sub-
section 3 of Article 2 of the Convention, which fact has also
been mentioned by the Supreme Court of Justice, Portugal in
para 9.4 of its order. Further sub-section (d) of Article 1(3) of
C the Convention makes it abundantly clear that the explosive or
lethal device means a weapon or device i.e. designed, or has
the capability to cause death, serious bodily injury or substantial
material damage through its release etc. AK-56 rifles are the
weapons/devices, which have the capability to cause death
and serious bodily injury through the release of cartridges and
0
are covered under the said Article. The appellant has been
charged for possession, transportation and distribution of AK-
56 rifles, their ammunitions as well as hand-grenades, which
were illegally smuggled into the country in pursuance of the
criminal conspiracy.
E
31. We are also satisfied that there has been no violation
of Rule of Speciality and the Solemn Sovereign Assurance
given by the Government of India in the letter dated 25.05.2003
of the Indian Ambassador to the Government of Portugal
F regarding the trial of the appellant-Abu Salem. The said
assurance of the Indian Ambassador was given to the effect
that the appellant will not be prosecuted for the offences other
than those for which his extradition has been sought and that
he will not be re-extradited to any other third country. As rightly
G pointed out by the Solicitor General, there has been no violation
of Rule of Speciality. As per the Government of India Gazette
Notification dated 13.12.2002, all the provisions contained
under the Extradition Act are made applicable in respect of the
extradition of Abu Salem except those contained in Chapter Ill
H of the Act. The Court of Appeals in Lisbon, has recognized this
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 63
MAHARASHTRA [P. SATHASIVAM, J.]
•
principle of reciprocity and the applicability of the provisions of A
Extradition Act to Portugal. The Supreme Court of Justice and
Constitutional Court of Portugal have also approved it. In view
of the fact that the provisions of the Extradition Act, 1962 have
been made applicable to Portugal, provisions contained in
Section 21 of the Act would come into operation while B
conducting the trial of appellant-Abu Salem.
32. We are also satisfied that the Designated Judge has
correctly concluded that the appellant-Abu Salem can be tried
for 'lesser offences', even if, the same are not covered by the
Extradition Decree since the same is permitted under Section C
21 (b) of the Extradition Act. No bar has been placed by the
Portuguese Courts for the trial of lesser offences in accordance
with the provisions contained under Section 21(b) of the
Extradition Act although Portuguese Courts were aware of the
said provisions of Extradition Act. D
33. We have already highlighted how the Government of
India and the Government of Portugal entered into an
agreement at the higher level mentioning the relevant offences
and the appellant was extradited to India to face the trial. We E
have also noted the Notification of the Government of India
about the applicability of Extradition Act, 1962. In the light of
the said Notification, the additional charges that have been
framed fit well within the proviso to Section 21 (b) of the
Extradition Act. The offences with which the appellant has been F
additionally charged are lesser than the offences for which the
appellant has been extradited. To put it clear, the offences with
which the appellant is charged are punishable with lesser
' punishment than the offence for which he has been extradited.
The extradition granted in the present case had due regard to
the facts placed which would cover the offences with which the G
appellant has been charged. As rightly pointed out by learned
Solicitor General, the offences are disclosed by the same set
of facts placed before the Government of Portugal. We agree
with the submission of the learned Solicitor General and the
H
64 SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.
A ultimate decision of the Designated Court.
34. Coming to the order of the Designated Court directing
separation of the trial of the appellant, it is the grievance of the
appellant that because of the separation, he would forego the
. opportunity to cross-examine the witnesses. This grievance has
8
been dealt with in a separate set of proceeding which we have
adverted to in the earlier part of our judgment. The order dated
24.08.2009 has granted the appellant an opportunity to submit
1
a 11ist of witnesses examined in the main trial for cross-
examination. Hence, there is no basis in the apprehension
C raised by the appellant.
35. In the light of the above discussion, we are of the view
that the appellant has been charged within the permissible
scope of Section 21 (b) of the Extradition Act and the
D Designated Court has not committed any illegality in passing
the impugned orders. Consequently, all the appeals as well as
the writ petition are liable to be dismissed, accordingly
dismissed. Since the trial is pending from the year 1983 and
connected matters have already been disposed of, we direct
E the Designated Court to proceed with the trial expeditiously.
GANGULY, J. 1. I have gone through the judgment
prepared by Hon'ble Brother Justice P. Sathasivam and I agree
with the conclusions reached by His Lordship.
F 2. Having regard to the importance of the issues discussed
in the judgment, may I express my views on the same.
3. Conceptually extradition is a rather complex
jurisprudential zone as it has encompassed within itself various
G trajectories of apparently conflicting ideas.
4. Generally, a State's criminal jurisdiction extends over
offences committed within its geographical boundaries but it
is the common experience of all the countries that often a
criminal committing an offence in one country flees to another
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 65
MAHARASHTRA [ASOK KUMAR GANGULY, J.]
country and thus seeks to avoid conviction and the A
consequential punishment. This poses a threat in all civilized
countries to a fair adjudication of crime and sustaining the
Constitutional norms of Rule of Law.
5. To remedy such anomalous and unjust situation, B
Extradition has been evolved by way of International treaty
obligation which ensures a mode of formal surrender of an
accused by the one country to another based on reciprocal
arrangements.
6. In India, extradition has not been defined under the C
Extradition Act 1962 (hereinafter, "the Act"). However, a
comprehensive definition of extradition has been given in
Gerhard Terlinden vs. John C. Ames in which Chief Justice
Fuller defined extradition as:-
D
"the surrender by one nation to another of an individual
accused or convicted of an offence outside of its own
territory, and within the territorial jurisdiction of the other,
which, being competent to try and to punish him, demands
the surrender."
E
[184 U.S. 270 at p. 289)
7. In the above formulation, the learned Chief Justice
virtually echoed the principles of extradition laid down by
Professor M. Cherif Bassiouni in his treatise "International F
Extradition and World Public Order, 1974, Oceana
Publications". The learned Professor explained:
"In contemporary practice extradition means a formal
process through which a person is surrendered by one
state to another by virtue of a treaty, reciprocity or comity G
as between the respective states. The participants in such
a process are, therefore, the two states and, depending
upon value-perspectives, the individual who is the object-
su bject of the proceedings. To a large extent, the
H
I
66 SUPREME COURT REPORTS [2010] 13 (,4DDL.) S.C.R.
A processes and its participants have not changed much in
the course o' time but the rationale and purposes of the
practice have changed, and as a consequence so have
the formal aspects of the proceedings." (Page 2)
8. But extradition is different from deportation by which
8
competent State authorities order a person to leave a country
and prevent him from returning to the same territory. Extradition
is also different from exclusion, by which an individual is
prohibited from staying in one part of a Sovereign State. As a
result of such orders, sometimes deserters or absentees from
C Armed Forces of a particular country are returned to the
custody of Armed Forces of the country to which they belong.
9. Both deportation and exclusion basically are non-
consensual exercise whereas extradition is based on a
D consensual treaty obligation between the requesting State and
the requested State. Extradition, however, is only to be resorted
to in cases of serious offences and Lord Templeman was right
in.holding that extradition treaties and legislation are designed
to combine speed and justice [Re Evans - 1994 (3) All E.R.
E 449 at 450-451].
10. In the context of extradition law, which is based on
international treaty obligations, we must keep in mind the
emerging Human Rights movements in the post World War II
scenario and at the same time the need to curb transnational
F and international crime. The conflict between these two
divergent trends is sought to be resolved by expanding the
network of bilateral and multilateral treaties to outlaw
transnational crime on the basis of mutual treaty obligation. In
such a situation there is obviously a demand for inclusion of
G Human Rights concerns in the extradition process and at the
same time garnering more international support and awareness
for suppression of crime. A fair balance has to be struck
between Human Rights norms and the need to tackle
transnational crime. This is best summed up in the leading
H decision of European Court of Human Rights rendered in
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 67
MAHARASHTRA [ASOK KUMAR GANGULY, J.]
Soering vs. United Kingdom reported in 1989 (11) EHRR 439 A
and the relevant excerpt is quoted:
" ... inherent in the whole of the Convention (European
Convention on Human Rights) is a search for a fair balance
between the demands of the general interest of the
B
community and the requirements of the protection of the
individual's fundamental rights. As movement about the
world becomes easier and crime takes on a larger
international dimension, it is increasingly in the interests
of all nations that suspected offenders who flee abroad
should be brought to justice. Conversely, the establishment C
of safe havens for fugitives would not only result in danger
for the State obliged to harbour the protected person but
also tend to undermine the foundations of extradition.
These considerations must also be included among the
factors to be taken into account in the interpretation and D
application of the notions of inhuman and degrading
treatment or punishment in extradition cases."
11. The extradition law, therefore, has to be an amalgam
of international and national law. Normally in extradition law the E
requested State is to follow the rule of Non-Inquiry which means
that the requested State is not to normally make inquiry about
the nature of criminal justice system in the requesting State.
That is why in this case, on a complaint being made by Abu
Salem in the Court of the requested country, the Courts of F
Portugal await the decision of this Court. The actual conduct
of trial of the extradited accused is left to the criminal
jurisprudence followed in the requesting State. This rule of Non-
lnqui ry is a well developed norm both in Canada and in
America [See the decision of Canadian Supreme Court in G
Canada vs. Schmidt, (1987) 1 SCR 500.
12. Justice La Forest delivering the majority judgment in
Schmidt held:
"that I see nothing unjust in surrendering to a foreign H
68 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A country a person accused of having committed a· crime
there for trial in the ordinary way in accordance with the
system for the administration of justice prevailing in that
country simply because that system is substantially
different from ours with different checks and balances. The
s judicial process in a foreign country must not be subjected
to finicky evaluations against the rules governing the legal
process in this country."
13. Whether or not the fugitive who has been extradited
C would have a standing to complaint of the judicial process in
the requesting State after extradition has been done,
independent of the position taken by the requested State, is a
debatable issue. It is a part of the larger debate about the
position of an individual as a subject of international law, and
. the obligation of States towards individuals. This is pertinent
D here because one of the claims made by Abu Salem is with
respect to the erosion of his rights that exist by way of the
international commitments India has made through the doctrine
of specialty embodied in section 21 of the Extradition Act. His
complaint is that by trying him for some offences which are
E designated as 'lesser offences' and calling them as completely
similar to the ones mentioned before the Portuguese
authorities, as well as by separating his trial from the other
accused, the Government of India has violated its commitments
in the extradition request, and therefore has violated the rights
F with which Abu Salem had been extradited. The answer to this
complaint obviously lies in the principle of non-inquiry which
prohibits questioning the fairness of the judicial process in the
requesting State. That is why the Courts of Portugal await the
decision of this Court. However, non-inquiry is not an absolute
G principle.
14. In a given situation, the requested State may question
the procedures in the requesting State if they are prima facie
contrary to fundamental principles of justice and there is a high
risk of the fugitive being prejudiced by the process of
H extradition.
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 69
MAHARASHTRA [ASOK KUMAR GANGULY, J.]
15. There are cases where the requested State has A
rejected the extradition request as the requesting State may
have procedures that are basically incompatible with the
practices of the requested State. The most. remarkable
example is in Soering (supra) where the European Court of
Human Rights struck down an extradition request from the USA B
on the ground of it being violative of Article 3 of the European
Convention on Human Rights which prohibits inhuman and
degrading treatment of humans. It said that the prolonged delay
in the form of death row, which is a natural outcome of the
criminal procedure existing in the USA, was certainly violative c
of the human rights of the fugitive, for it was torturous for him
to wait in anticipation of a death that was almost certain for him
in the USA.
16. Furthermore obligations entered by many countries of
the world, including India, in the form of Covenant on Civil and D
Political Rights, and The Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (to
which India is a Signatory), would preclude a total and
unconditional observance of the principle of non-inquiry. Even
though, non- inquiry is not an absolute doctrine, but in facts of E
the present case, it operates.
17. In this case, the insistence of the Central Government
on trying Abu Salem for lesser offences is permissible, both
under the Extradition Act as well as under the Convention for F
Suppressing Terrorist Bombings.
18. United Nations General Assembly adopted on 15th
December 1997, the International Convention for the
Suppression of Terrorist Bombings. lnqia has been a party to
this Convention, ever since the Union Cabinet approved it on G
5th of August, 1999 and India formally ratified it on 17th of
September 1999. This Convention creates a broad platform for
international cooperation to suppress and deal with unlawful and
international use of explosives and other lethal devices in
various public places with the intention to cause serious bodily H
70 SUPREME COURT REPORTS (2010] 13 (AODL.) S.C.R.
A damage and extensive destruction.
19. The Convention thus fills up a huge void in international
law by expanding the legal framework and enabling several
States to cooperate in the investigation, prosecution and
extradition of several persons who are engaged in such
8
international terrorism. It is of utmost importance as it
strengthens international law enforcement in controlling
international terrorism.
20. This Convention is structured on prior counter terrorism
C conventions adopted by the United Nations. It calls upon the
member parties to declare certain specified conducts to be
criminal activities and to initiate prosecution for them, and to
extradite persons who have committed such conduct in one
country and are staying in another country. But unlike its
D predecessors, this Convention dbes not define terrorism.
However it points out particular conducts, regardless of the
motive, as internationally condemnable. Thus this convention is
of crucial importance in the field of international law
enforcement devices. [See Samuel M. Witten, The International
E Convention for the Suppression of Terrorist Bombings, The
American Journal of International Law, Vol.92, No.4 (October
1998) pp.774-781]
21. There are two ways in which .to describe a lesser
F crime. Either every single element of a lesser crime should be
component of the greater crime on the basis of their statutory
definitions; or the allegations of the larger crime in the
indictment should include all the factual details of the lesser
crime. (See Submission of Lesser Crimes, Columbia Law
Review, Volume 56(6), 1956 pp.888-902, at 888-890).
G
22. Section 21(b) of the Act seems to embody the latter
of these two principles. This means that a crime which can be
framed from out of the factual averments themselves (i.e.
evidence submitted) before the requested State at the time of
H extradition, can be the one upon which the fugitive can be tried.
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 71
MAHARASHTRA [ASOK KUMAR GANGULY, J.]
A lesser crime can be a cognate crime, in that it shares its roots A
with the primary crime, even though it may be independent of
it.
23. The learned Solicitor General rightly placed reliance
on the following observation of the Designated Court in
B
Bombay Blast case where the learned Judge observed:
"Thus in true sense all such offences would always be lesser
offence of conspiracy of which pivotal charge of conspiracy
is framed at the trial subject to such offences being
punishable with lesser punishment than prescribed for main c
offence of conspiracy."
24. In the instant case the extradition has been allowed by
the requested State on the specific undertaking of the
Government of India that the extradited criminal will not be D
subjected to death penalty or imprisonment beyond 25 years.
Therefore, the basic human rights considerations have been
taken into account and the guidelines in Soering (supra) have
been adhered to. Thus, primacy has been accorded to human
right norms in the extradition process.
E
25. Doctrinally speaking, Extradition has five substantive
ingredients. They are: (a) reciprocity, (b) double criminality, (c)
extraditable offences, (d) specialty and (e) non inquiry.
26. In India, the Act suffered an amendment in 1993, by F
Act 66 of 1993 and in the instant case, the amended provisions
have come up for discussion. In order to appreciate the purport
of the amendment, the Statement of Objects and Reasons for
enacting the Act 66 of 1993 (hereinafter the Amending Act) are
set out:
G
"At present, the Law of Extradition in India is contained in
the Extradition Act, 1962 (Act 34 of 1962). The 1962-Act
made a distinction between Commonwealth countries and
foreign States and considered only foreign States as treaty
H
72 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A States. The extradition with Commonwealth countries was
separately governed by the second schedule of the Act
and the Central Government was given powers under
Chapter Ill to conclude special extradition arrangements
with respect to Commonwealth countries only. Such
B distinction made in the Extradition Act, 1962 between
foreign States and Commonwealth countries does not hold
good in view of the change of time and rapid
1
developments in Extradition Law at international level.
Commonwealth countries are concluding extradition
c treaties among themselves. India has in recent years
concluded separate extradition treaties with Canada and
UK. Moreover, the Civil Law countries have specific
requirements for purposes of extradition with them. In
addition, terrorism and drug trafficking as two most
heinous crimes affecting innocent lives, have thrown new
D
challenges necessitating changes in the existing
Extradition Law to effectively deal with these new crimes.
Many International Conventions dealing with these and
other crimes have laid down specific obligation on State
parties to extradite or prosecute a fugitive offender. India
E is a State party to many of these International Conventions.
2. The purpose of the Bill is to amend the Extradition Act,
1962, to suitably incorporate in it the above noted changes
and to achieve, inter alia, the following objectives:
F
a. to enable India to conclude extradition treaties with
foreign States including the Commonwealth
countrieswithout treating them structurally different;
b.
~ .
to ,provide for extra-territorial jurisdiction over
G foreigners for crimes committed by them outside
India;
c. to incorporate composite offences in the definition
of extradition offence;
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 73
MAHARASHTRA [ASOK KUMAR GANGULY, J.)
d. to exclude political offence as a defence in cases A
of offences of a serious nature;
e. to cover extradition requests on the basis of
international Conventions within the scope of the
M; ,
B
f. to enable Central Government to make and receive
requests for provisional arrest of fugitives in ~rgent
cases pending the receipt of the formal extrci1dition
request; ·
c
g. to enable the Central Government to give
assurance pursuant to a treaty obligation to· the
requested State for the non-execution of death
penalty.
D
3. The Bill seeks to achieve these objects."
27. The above stated objects behind the Amending Act are
relevant in appreciating some of the problems in the instant
case. As a result of the amendment, Section 21 has been
completely recast and the doctrine of Specialty has been E
introduced.
28. A perusal of the said Amendment Act would make it
clear that the amendment enables the requesting State to try
the fugitive for a lesser offence without restoring him to the F
requested State. In fact the doctrine of specialty is in fact a
corollary to the principle of double criminality, and is founded
on policy and expediency and on the basic principle of
reciprocity. It is thus a universally recognized principle of
international law and partakes of doctrines of both double G
criminality and reciprocity.
29. Section 21 of the Act bears close a resemblance to
Section 19 of the English Extradition Law. Both the provisions
are successors to Section 19 of the United Kingdom Extradition
Act, 1870. Section 19 of the English Extradition Law reads: H
74 SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.
A "Where in pursuance of any arrangement with a foreign
State, any person accused or convicted of any crime which,
if committed in England, would be one of the crimes
described in the first schedule to this Act is surrendered
by the foreign State, such person shall not, until he has
B been restored or had an opportunity of returning to such
foreign State, be triable or tried for any offence committed
prior to the surrender in any part of her Majesty's
dominions other than such of the said crimes as may be
proved by the fact on which the surrender is grounded."
c 30. This is in keeping with the rule of double criminality,
which requires a mutually acceptable position between the
requesting as well as the requested State on all the aspects of
the criminal act committed by the person who is to be
extradited. This understanding is not about an agreement as
D to the specifics, but rather a consensus ad idem in the
contractual relationship between two sovereign States.
Explaining the rule of double criminality, Shearer says, " ... This
rule requires that an act shall not be extraditable unless it
constitutes a crime according to the laws of both the requesting
E and requested States ... The validity of the double criminality
rule has never seriously been contested, resting as it does, in
part on the basic principle of reciprocity, which underlies the
whole structure of extradition, and in part on the maxim nu/la
poena sine /ege" (no penalty without prior legal authority) (See
F Extradition in International Law (1971) at page 137).
31. This position of extraditable offences, and the
obligations of the requesting State can further be understood,
if one bears in mind the fact that the doctrines of double
G criminality and specialty are both safeguards of the individual
rights of the extraditee who should not be tried on unexpected
counts, as well as the rights of the requested State to have its
laws and processes given adequate deference by the
requesting State. It is not only a means to protect the person
from unexpected prosecution, but also a preventive guard
H
ABU SALEM ABDUL QAYOOM ANSARI v. STATE OF 75
MAHARASHTRA [ASOK KUMAR GANGULY, J.]
against the abuse of the legal process of the requested State. A
While the first takes care of the individual's right, the second
takes care of the rights of a sovereign State.
32. Therefore it can be said that as long as the facts that
have been submitted before the requested State prima facie B
show the guilt of the extraditee in a foreseeable and logically
consistent way, the said person can be tried on all such counts
that can be conclusively proved against him or her.
"
·33. Therefore, I do not find any substance in the complaint
of Abu Salem. C
34. Thus I concur with Brother Sathasivam and reach the
same conclusion as His Lordship does.
K.K.T. Appeals & Writ petition dimissed.
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