REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 990 OF 2006

Abu Salem Abdul Qayoom Ansari                   .... Appellant(s)

Versus

State of Maharashtra & Anr.               .... Respondent(s)

WITH

CRIMINAL APPEAL NOS. 1142-1143 OF 2007

AND

WRIT PETITION (CRIMINAL) NO. 171 OF 2006

J U D G M E N T  

P. Sathasivam, J.

1) The appeals and the writ petition raised a common  

question,  as  such  were  heard  together  and  are  being  

disposed of by this common judgment.  The grievance of  

the  appellant-Abu  Salem  Abdul  Qayoom  Ansari  in  the  

appeals and writ petition is that the criminal courts in the  

country have no jurisdiction to try in respect of offences  

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which do not form part  of  the extradition judgment,  by  

virtue of which he has been brought to this country and  

he  can be  tried  only  for  the  offences  mentioned in  the  

extradition decree.

2)  Criminal Appeal No. 990 of 2006, filed under Section  

19 of the Terrorist  and Disruptive Activities (Prevention)  

Act, 1987 (hereinafter referred to as “the TADA Act”), arose  

out  of  framing  of  charge  on  18.03.2006  against  the  

appellant  by the Designated Court  at  Arthur Road Jail,  

Mumbai  in  RC  No.1(S/93)/CBI/STF  known as  Bombay  

Bomb  Blast  Case  No.  1  of  1993  and  the  order  dated  

13.06.2006 passed by the said Court separating the trial  

of  the  accused/appellant  from  the  main  trial  in  the  

Bombay Bomb Blast Case.   

3)  The appellant filed Criminal Appeal Nos. 1142-1143 of  

2007  against  the  order  dated  16.04.2007  by  the  same  

Designated  Court,  framing  charges  against  him  under  

Sections  120B,  302,  307,  387,  382  IPC  and  under  

Sections 3(2)(i), 3(2)(ii), 3(3), 3(5) and 5 of the TADA Act.  

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4) In  addition  to  filing  of  the  abovesaid  appeals,  the  

appellant has also filed Writ Petition (Crl.) No. 171 of 2006  

under Article 32 of the Constitution of India seeking a) to  

issue  a  writ  of  Certiorari to  quash  the  charges  framed  

against him in Bombay Bomb Blast Case No. 1 of 1993  

arising  out  of  RC No.  1  (S/93)/CBI/STF by  framing  of  

charge on 18.03.2006; b) to issue a writ of  Certiorari to  

quash the order passed by the Designated Court  under  

TADA Act dated 13.06.2006 passed in Misc. Application  

No. 144 of 2006; c) issue a writ of Certiorari to declare that  

the charges framed on 18.03.2006, in Bombay Bomb Blast  

Case No. 1 of 1993, as violative of the Rule of Speciality  

and Section 21 of the Extradition Act, 1962; (d) issue a  

writ  of  Mandamus to  release  and  discharge  the  writ  

petitioner by quashing all the proceedings against him; (e)  

issue a writ of Prohibition prohibiting the respondents from  

prosecuting the writ petitioner any further for the offences  

for  which the petitioner has not  been extradited by the  

Court of Appeals at Lisbon as affirmed by the order of the  

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Supreme Court of Portugal; f)  issue a writ of  Prohibition  

prohibiting the Designated Court at Arthur Road Jail at  

Mumbai  from separating  the  trial  of  the  writ  petitioner  

from the other accused whose trial is stated to have been  

completed.   

5) Prosecution Case:   

a) On  12.03.1993,  there  were  a  series  of  bomb  

explosions in the Mumbai City which resulted in death of  

257 persons, injuries of various types to 713 persons and  

destruction of properties worth more than Rs. 27 crores  

(approximately).  These bomb explosions were caused at  

vital Government installations, public places and crowded  

places in the city  and its  suburbs with an intention to  

overawe the Government established by law, and to strike  

terror  among  the  public  at  large  and  also  to  adversely  

affect the peace and harmony among different sections of  

the people.  Twenty-seven criminal cases were registered  

at respective Police Stations with regard to the said bomb  

explosions  and  subsequent  recovery  of  arms,  

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ammunitions  and  explosives,  which  were  illegally  

smuggled into the country with the intention to commit  

the said terrorist acts.  On completion of investigation, it  

was disclosed that various acts committed by the accused  

persons were out of a single conspiracy and, therefore, a  

single  charge-sheet  was  filed  in  the  specially  created  

Designated Court, Mumbai, against 189 accused persons  

including  44  absconders  on  04.11.1993  for  offences  

punishable under Section 120B read with Sections 324,  

326, 427, 435, 121, 121-A, 122, 307, 302 and 201 of the  

Indian Penal Code read with Sections 3, 4 and 5 of the  

TADA Act read with Sections 3, 7(a), 25(1A), 25(1AA), 26,  

29, 35 of the Arms Act, 1959 read with Sections 3, 4, 5  

and  6  of  the  Explosive  Substances  Act,  1908.   The  

appellant-Abu  Salem  was  one  of  the  absconders  

mentioned in the charge-sheet.

b) The  investigation  disclosed  that  the  appellant-Abu  

Salem  and  other  accused  persons  hatched  a  criminal  

conspiracy  during  the  period  December,  1992  to  April,  

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1993  with  an  object  to  create  disturbances  of  serious  

nature by committing terrorist acts by bomb explosions,  

murders and causing destruction of properties throughout  

India.   In  pursuance of  the  said  criminal  conspiracy,  a  

large  quantity  of  arms  like  AK-56  rifles,  pistols,  hand-

grenades, ammunitions and RDX explosives were illegally  

smuggled into the country through sea at Dighi Jetty and  

Shekhadi ports in Maharashtra State during January and  

February,  1993.   These  illegal  arms  and  ammunitions  

were  kept  and  stored  at  different  places  with  different  

persons with the object to commit terrorist acts.  

c) The  appellant–Abu  Salem  was  entrusted  with  the  

task  of  transportation  of  illegally  smuggled  arms  and  

ammunitions, their storage and distribution to other co-

accused  persons.   Investigation  has  disclosed  that  a  

portion of arms and explosives, which were smuggled and  

brought illegally into India on 09.01.1993, were taken to  

the State of Gujarat and stored at Village Sansrod, Dist.  

Bharuch.  In the second week of January, 1993, on the  

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instructions  of  absconding  accused,  Anees  Ibrahim  

Kaskar, appellant–Abu Salem brought AK-56 rifles, their  

ammunitions and hand-grenades from Village Sansrod to  

Mumbai  and  distributed  the  same  among  co-accused  

persons.

d) On  12.03.1993,  RDX  filled  vehicles  and  suit-cases  

were  planted  at  strategic  places  like  Bombay  Stock  

Exchange,  Air  India  Building,  Near  Shiv  Sena  Bhawan,  

Plaza  cinema  and  thickly  populated  commercial  places  

like Zaveri Bazar, Sheikh Memon Street etc.  The suit-case  

bombs were also planted in the rooms of 3 five-star Hotels,  

namely, Hotel Sea Rock, Bandra, Hotel Juhu Centaur and  

Airport Centaur, Mumbai.  Explosions were caused from  

the  said  vehicle-bombs  and  suit-case  bombs  in  the  

afternoon of 12.03.1993 and within a period of about two  

hours, large-scale deaths and destruction was caused, as  

described earlier.  Hand-grenades were also thrown at two  

places  i.e.  Sahar  International  Airport,  Mumbai  and  

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Fishermen  Colony,  Mahim,  Mumbai.   The  explosions  

caused by hand-grenades also produced similar results.  

e) During the course of investigation, a large quantity of  

arms,  ammunitions  and explosives  were  recovered  from  

the possession of accused persons.  In India, AK-56 rifles,  

ammunitions and hand-grenades cannot be possessed by  

private individuals, as these types of sophisticated arms  

and ammunitions can only be used by the armed forces  

and other law enforcing agencies.  

f) Since the appellant–Abu Salem absconded and could  

not be arrested during the course of investigation, he was  

shown  as  an  absconder  in  the  charge-sheet.  The  

Designated  Court,  Mumbai,  issued  Proclamation  No.  

15777  of  1993  against  him  on  15.09.1993.   As  the  

accused did not appear before the Court despite issuance  

of Proclamation, he was declared as a Proclaimed Offender  

on 15.10.1993.   The Designated  Court,  Mumbai  issued  

Non-bailable  Warrant  against  appellant–Abu  Salem  and  

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Interpol Secretariat General, Lyons, France also issued a  

Red Corner Notice No. A-103/3-1995 for his arrest.  

g) During  the  course  of  trial,  the  Designated  Court,  

Mumbai,  framed common charge  of  criminal  conspiracy  

punishable  under  Section  3(3)  of  the  TADA  Act  and  

Section 120 B of the Indian Penal Code read with Sections  

3(2)(i), (ii), 3(3), 3(4), 5 and 6 of the TADA Act read with  

Sections 302, 307, 326, 324, 427, 435, 436, 201 and 212  

of the Indian Penal Code and offences under Sections 3  

and 7 read with Sections 25 (1A), (1B), (a) of the Arms Act,  

1959, Sections 9-B(1),  (a),  (b),  (c)  of  the Explosives Act,  

1884,  Sections  3,  4(a),  (b),  5  and  6  of  the  Explosive  

Substances Act, 1908 and Section 4 of the Prevention of  

Damage  to  Public  Property  Act,  1984  against  all  the  

accused who were present before the Court, as also the  

accused who are absconding including the appellant.  The  

Designated Court, Mumbai, on 19.06.1995, ordered that  

the  evidence  of  the  witnesses  may  be  recorded  against  

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absconding  accused  persons  in  their  absence  in  

accordance with the provisions of Section 299 Cr.P.C.  

h) On  18.09.2002,  the  appellant–Abu  Salem  was  

detained by the Portugese Police at Lisbon on the basis of  

the  above  mentioned  Red  Corner  Notice.   In  December  

2002, on receipt of the intimation about his detention in  

Lisbon, the Government of India submitted a request for  

his extradition in 9 criminal cases (3 cases of CBI, 2 cases  

of Mumbai Police and 4 cases of Delhi Police).  The request  

was made relying on the International Convention for the  

Suppression of Terrorist Bombings and on an assurance  

of  reciprocity  as  applicable  in  international  law.   Along  

with the requisition of extradition, the relevant facts of the  

cases were enclosed in the form of duly sworn affidavits of  

the  concerned  Police  officers,  together  with  other  

supporting  documents.   The  letter  of  requisition  was  

issued under the signature of the then Minister of State  

for  External  Affairs  and  the  affidavit-in-support  was  

affirmed by Sr. Superintendent of Police, CBI/STF.  

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i) On  13.12.2002,  the  Government  of  India  issued  

Gazette  Notification  No.  G.S.R.822(E)  in  exercise  of  the  

powers conferred by Sub-section (1)  of  Section 3 of  the  

Extradition Act, 1962, directing that the provisions of the  

Extradition Act, other than Chapter-III, shall apply to the  

Portuguese Republic with effect from 13.12.2002.  

j) The Government of India gave an undertaking under  

the signatures of the then Dy. Prime Minister that on the  

basis  of  provisions  of  the  Constitution  of  India,  Indian  

Extradition Act, and the Code of Criminal Procedure, 1973  

assured the Government of Portugal that it will exercise its  

powers  conferred  by  the  Indian  Laws  to  ensure  that  if  

extradited by the Portugal for trial in India, appellant–Abu  

Salem  would  not  be  visited  by  death  penalty  or  

imprisonment  for  a  term  beyond  25  years.   The  

Ambassador  of  India  in  Lisbon,  by  letter  dated  

25.05.2003, gave another assurance that in the event of  

extradition of the appellant- Abu Salem, he will :

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(i) not be prosecuted for offences other than those  

for which his extradition has been sought.

(ii) not be re-extradited to any third country.

k) The request for the extradition of the appellant–Abu  

Salem was considered and examined by the authorities in  

Government  of  Portugal  and  by  the  Court  of  Appeals,  

Lisbon,  Supreme  Court  of  Justice,  Portugal  and  

Constitutional Court of Portugal.  The Authorities/Courts  

in  Portugal  granted  extradition  of  the  appellant–Abu  

Salem in  8  criminal  cases  (3  cases  of  CBI,  2  cases  of  

Mumbai Police and 3 cases of Delhi Police).  Extradition in  

one case of Delhi Police was not granted.  The Supreme  

Court  of  Justice,  Portugal  granted  extradition  of  

appellant–Abu Salem for the following offences, included  

in the request of Public Prosecution, as is clear from Para  

13.1 of the order dated 27.01.2005 of Supreme Court of  

Justice,  Portugal,  which  was  also  confirmed  by  the  

Constitutional Court of Portugal.  The maximum sentence  

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prescribed  under  the  Indian  Laws  for  these  offences  is  

mentioned here under:

S.No. Offence Maximum Punishment i) The offence of criminal conspiracy  

punishable u/s. 120B IPC Death  Penalty  in  the  present case

ii) Murder punishable U/s. 302 IPC Death Penalty iii) Attempt to murder punishable  

u/s. 307 IPC Imprisonment for Life

iv) Mischief punishable u/s. 435 IPC Imprisonment for 7 years  v) Mischief by fire or explosive  

punishable u/s. 436 IPC Imprisonment for Life

vi) Offence punishable u/s. 3(2) of  TADA (P) Act.

Death Penalty in this case

vii) 3(3) of TADA (P) Act Life Imprisonment  viii) Section 3 of Explosive Substances  

Act, 1908 Life Imprisonment  

ix) Offence punishable u/s. 4 of  Prevention of Damage to Public  Property Act

Imprisonment for 10 years

l) Upon  extradition,  custody  of  the  appellant–Abu  

Salem was handed over by the Govt. of Portugal to Indian  

Authorities on 10.11.2005 and he was brought to Mumbai  

on  11.11.2005.   He  was  produced  in  the  Designated  

Court,  Mumbai,  in  connection  with  the  serial  Bombay  

Bomb Blast Cases (CBI Case RC No. 1 (S/93)/CBI/STF,  

Court case No. BBC 1 of 1993)

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m) On  01.03.2006,  after  completion  of  further  

investigation  against  the  appellant–Abu  Salem,  a  

Supplementary Report u/s. 173(8) of Cr.P.C. was filed in  

the  Designated  Court,  Mumbai.   Prior  to  that,  on  

09.12.2005,  the  Designated  Court  altered  the  common  

charge of criminal conspiracy  by adding the name of the  

appellant–Abu Salem in the list  of  the accused persons  

before  the  Court  by  deleting  his  name  from the  list  of  

absconding accused in the said charge.  On 18.03.2006,  

after  hearing  the  counsel  for  the  appellant  and  the  

Prosecution,  the  Court  framed  substantive  charges  

against the appellant–Abu Salem.  

n) The  Designated  Court  has  framed  charges  for  the  

following  offences  against  the  appellant–Abu Salem vide  

its orders:

i) Offence of criminal conspiracy punishable u/s. 120-B  

IPC r/w.  offences  punishable  under  IPC,  TADA (P)  Act,  

Explosive Substances Act, Explosives Act, Arms Act and  

Prevention of Damage to Public Property Act.  

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ii) Offence punishable under Section 3 (3) of TADA (P)  

Act, 1987.  

iii) Offence punishable under Section 5 of TADA (P) Act,  

1987.    

iv) Offence punishable under Section 6 of TADA (P) Act,  

1987.  

v) Section 4(b) of the Explosive Substances Act, 1908.

vi) Section 5 of the Explosive Substances Act, 1908.  

vii) Section 25 (1-A)(1-B)(a) r/w Sections 3 and 7 of the  

Arms Act, 1959.  

viii) Offence punishable  u/s.  9-B of  the Explosives Act,  

1884.  

o) These charges have been framed by the Designated  

Court  keeping  in  view  the  provisions  contained  under  

Section 21 of the Extradition Act, 1962.

(p) The extradition order of the Supreme Court of Justice,  

Portugal, did not include the following offences for which  

the charges have been framed by the Designated Court,  

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Mumbai.  The maximum punishment provided for these  

offences is given here:-

S.No. Offence Punishment i) Section 5 of TADA (P) Act, 1987. Imprisonment for Life ii) Section 6 of TADA (P) Act, 1987. Imprisonment for Life iii) Section 4-b of Explosive  

Substances Act, 1908 Imprisonment for 20 years.

iv) Section 5 of the Explosive  Substances Act, 1908

Imprisonment for 14 years.

v) Section 25 (1-A) (1-B) (a) of Arms  Act, 1959.

Imprisonment for 10 years.

vi) Section 9-B of Explosives Act,  1884

Imprisonment for 3 years.

(q) The  request  for  extradition  of  the  appellant-Abu  

Salem  has  been  made  relying  on  the  assurance  of  

reciprocity  as  applicable  in  international  law  and  the  

International  Convention  for  Suppression  of  Terrorist  

Bombings.  The order dated 27.01.2005 of the Supreme  

Court of Justice, Portugal mentions that Article9.3 of the  

said  Convention  applies  to  the  case  of  appellant-Abu  

Salem.  As per Article 9.3, the State Parties, which do not  

make extradition conditional on the existence of a treaty,  

shall  recognize  the  offences  themselves  subject  to  the  

conditions  provided  by  the  law  of  the  requested  State.  

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Article  2  of  the  Convention  defines  the  extraditable  

offences.  The  above  mentioned  offences  for  which  the  

extradition has not been specifically granted, also covered  

under the definition of extraditable offence, as mentioned  

in Article 2 of the said Convention.

(r)   The  punishment  provided  for  the  offences,  not  

included  in  the  order  of  Supreme  Court  of  Justice  of  

Portugal, is lesser than the punishment provided for the  

offences included in the said order  of  Extradition.   The  

said  offences  are  disclosed  by  the  facts,  which  were  

considered/proved  for  the  purposes  of  extradition  of  

appellant-Abu Salem from Portugal.  It was further stated  

that the said offences are extradition offences, as defined  

under  Section  2(c)(ii)  of  the  Extradition  Act,  1962  and,  

thus, the trial of appellant-Abu Salem for these offences is  

permissible  under  Section  21(b)  of  the  Extradition  Act,  

1962.   

(s)  After framing of the charges on 18th March, 2006, the  

Designated Court invited the views of the prosecution and  

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the defence about the further course of action for the trial  

of appellant-Abu Salem.  The prosecution, Vide M.A. No.  

144 of 2006, submitted its views to the Designated Court,  

suggesting therein that the trial  of  appellant-Abu Salem  

may be separated in the same manner as was done by the  

Designated  Court  in  respect  of  absconding  accused  

Mustafa Ahmed Dossa, upon his arrest in March 2003, to  

avoid hardships to 123 accused persons whose trial had  

already been completed.  It was further submitted by the  

prosecution that 33 accused persons were in custody for  

the  last  about  12-13  years.   The  course  of  action  as  

suggested  by  the  prosecution  would  not  cause  any  

prejudice to any accused, including appellant-Abu Salem  

and would also avoid further delay in pronouncement of  

the judgment in the case.  The Designated Court, Mumbai,  

after hearing both the sides, by its order dated 13.06.2006  

ordered that the trial of appellant-Abu Salem, co-accused  

Riyaz  Ahmed  Siddique  and  other  absconding  accused,  

mentioned in the common charge of criminal conspiracy,  

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and jointly  in progress along with the other  co-accused  

mentioned in the said charge, stood separated from the  

ongoing trial in progress.  The Court further ordered that  

the said separated trial from that day (13.06.2006) to be  

continued under No. BBC-1-B of 1993, in continuity with  

the earlier joint case.   

6) These  orders  are  under  challenge  in  these  appeals  

and writ petition.

7) Stand of the appellant-Abu Salem

The appellant has been extradited from Portugal for  

being  tried  in  eight  cases  including  the  Bombay  Bomb  

Blast Case No. 1 of 1993 subject to certain conditions and  

the sovereign assurance given by the Government of India  

to the Government of Portugal.  It was his stand that the  

charges under Sections 3(4),  5  and 6 of  the TADA Act,  

Sections  4(b)  and  5  of  the  Explosive  Substances  Act,  

Section  25  of  the  Arms  Act  and  Section  9B  of  the  

Explosives Act (in R.C. No. 1(S/93)/CBI/STF (Bomb Blast  

Case) and charges under Section 120B, 387 and 386 of  

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the Indian Penal Code and under Section 5 of the TADA  

(in C.R. No. 144 of 1995) are in flagrant disobedience of  

the mandate of Section 21 of the Indian Extradition Act as  

well as the solemn sovereign assurance of the Government  

of  India,  the  ministerial  order  of  extradition  of  the  

appellant  passed  by  the  Government  of  Portugal,  the  

judgment of the Court of Appeals as well as the Supreme  

Court of Portugal.

8) It  is  also  his  grievance  that  time  and  again  the  

authorities abused the process of criminal law by failing  

to  file  the  orders  passed  by  Portugal  Courts  and  by  

willfully  and deliberately  violating  the  solemn sovereign  

assurance.   It  is  his  categorical  claim  that  the  

respondents  are  lowering  the  esteem  of  the  nation  by  

their deceitful behaviour in the field of international law,  

breaching the principle of speciality established under the  

rule of international law and recognized by Section 21 of  

the  Extradition  Act  after  securing  the  extradition  and  

gaining control of the appellant.  The construction made  

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by  the  Designated  Court  is  not  acceptable  and  the  

appellant is being wrongly tried by the Designated Court  

in  violation  of  the  extradition  decree  and  prayed  for  

quashing of the entire proceedings.

9) Heard  Mr.  S.  Pasbola,  learned  counsel  for  the  

appellant and Mr. Gopal Subramaniam, learned Solicitor  

General and Mr. H.P. Rawal, learned Additional Solicitor  

General for the respondents.

10) The contention of the appellant that he is being tried  

for  the  offences  for  which  he  has  not  been specifically  

extradited,  has  been  rejected  by  way  of  the  impugned  

order on the ground that the extradition has been granted  

for  the  offences  of  higher  degree  and  the  additional  

offences  for  which  he  is  being  tried  are  

subsumed/included in the said higher degree of offences  

and the trial would be permissible by virtue of clause (b)  

of Section 21 of the Extradition Act, 1962.  As pointed out  

earlier,  apart from the appeals against the order of the  

Designated Court, the appellant has also preferred a writ  

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petition  seeking  to  invoke  the  extraordinary  writ  

jurisdiction of this Court on the ground that the trial for  

the  offences  for  which  he  has  specifically  not  been  

extradited is violative of the fundamental rights enshrined  

under  Article  21  of  the  Constitution  of  India  which  

guarantees a fair trial with due process of law.

11) The term ‘extradition’  denotes  the  process  whereby  

under  a  concluded  treaty  one  State  surrenders  to  any  

other State at its request, a person accused or convicted of  

a  criminal  offence  committed  against  the  laws  of  the  

requesting State, such requesting State being competent  

to try the alleged offender. Though extradition is granted  

in implementation of the international commitment of the  

State,  the  procedure  to  be  followed  by  the  courts  in  

deciding,  whether extradition should be granted and on  

what  terms,  is  determined by  the  municipal  law of  the  

land. Extradition is founded on the broad principle that it  

is in the interest of civilised communities that criminals  

should  not  go  unpunished  and  on  that  account  it  is  

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recognised  as  a  part  of  the  comity  of  nations  that  one  

State should ordinarily afford to another State assistance  

towards bringing offenders to justice.

12) With  the  tremendous  increase  in  the  facility  of  

international  transport  and  communication,  extradition  

has assumed prominence since the advent of the present  

century. Because of the negative attitude of the customary  

international  law  on  the  subject,  extradition  is  by  and  

large  dealt  with  by  bilateral  treaties.  These  treaties,  

inasmuch as they affected, the rights of private citizens,  

required in their turn alterations in the laws and statutes  

of the States which had concluded them. The established  

principle requires that without formal authority either by  

treaty  or  by  statute,  fugitive  criminals  would  not  be  

surrendered nor would their surrender be requested.

13) There  is  no  general  rule  that  all  treaty  rights  and  

obligations  lapse  upon  external  changes  of  sovereignty  

over territory nor is there any generally accepted principle  

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favouring the continuity of treaty relations. Treaties may  

be affected when one State succeeds wholly or in part to  

the  legal  personality  and  territory  of  another.  The  

conditions under which the treaties of the latter survive  

depend on many factors including the precise form and  

origin of the succession and the type of treaty concerned.  

The  emancipated  territories  on  becoming  independent  

States  may prefer  to  give  general  notice  that  they were  

beginning with a “clean slate” so far as their future treaty  

relations were concerned, or may give so-called “pick and  

choose”  notifications  as  to  treaties  as  were  formally  

applicable to it before achieving independence. The “clean  

slate”  doctrine  was  ultimately  adopted  in  the  relevant  

provisions of the Vienna Convention of 1978. The sound  

general working rule which emerges is to look at the text  

of  the  relevant  treaty  and  other  arrangements  

accompanying change of  sovereignty and then ascertain  

as to what was the intention of the State concerned as to  

the  continuance  or  passing  of  any  rights  or  obligations  

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under the treaty concerned. The question whether a State  

is  in  a  position  to  perform  its  treaty  obligations  is  

essentially a political question which has to be determined  

keeping  in  view  the  circumstances  prevailing  and  

accompanying the change of sovereignty.

14) We  have  already  referred  to  the  factual  details.  

Hence there is  no need to  repeat  the same once again.  

However, it is useful to advert the following information,  

namely, on 04.11.1993, a single charge-sheet was filed in  

the  Designated  Court  against  189  accused  persons,  of  

which, 44 accused persons were shown absconding.  The  

role  attributed  to  Abu  Salem  in  RCI(S)  relating  to  the  

Bombay  Bomb  Blast  case  of  1993  was  that  he  was  

entrusted  with  the  task  of  transportation  of  illegally  

smuggled arms and ammunitions and their storage and  

distribution  to  other  co-accused.   A  portion  of  arms  

smuggled on 09.01.1993 were  taken to village Sansrod,  

Distt. Bharuch, Gujarat on the instructions of absconding  

accused  Anees  Ibrahim  Kaskar.   Subsequently,  the  

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appellant took AK-56, ammunitions and hand grenades to  

Mumbai and distributed amongst various co-accused.  A  

Red Corner Notice bearing No. A-103/3-1995 was issued  

through  Interpol  for  the  arrest  of  the  appellant.   On  

19.11.1993, further investigation was transferred to C.B.I.  

The  CBI  registered  case  Crime  No.  RC1(S)/93/STF/BB.  

Consequently, further investigation was conducted by CBI  

and  supplementary  reports  were  filed  under  Section  

173(8) of Cr.P.C. before the Designated Court on various  

dates.    On 10.04.1995, the Designated Court, Mumbai,  

after hearing the arguments of both sides, framed charges  

against  the  accused  persons.   The  Court  framed  a  

common  charge  of  criminal  conspiracy  against  all  the  

accused  persons  present  before  it,  absconding  accused  

and other unknown accused persons.  The appellant has  

been named in the charge as absconding accused.  The  

charge  included  the  offence  of  conspiracy  also  for  the  

offences with which he has been substantively charged.  

By  order  dated  19.06.1995,  before  commencing  

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examination of witnesses, the Designated Court directed  

that  evidence  to  be  adduced  against  the  absconding  

accused  persons  for  the  purpose  of  Section  299 of  the  

Cr.P.C.   On 18.09.2002,  the  appellant  was detained by  

Portuguese  Police,  initially  in  a  passport  case  and  

subsequently, in view of the Red Corner Notice.

15) In December, 2002, Government of India submitted  

request for extradition of the appellant in 9 criminal cases  

(three cases of CBI, two cases of Mumbai Police and four  

cases of Delhi Police).  

16) Before  going  into  the  requisition  made  by  the  

Government  of  India  and  the  orders  passed  by  the  

Government of Portugal as well as the Supreme Court of  

Justice,  it  is  useful  to  refer  certain  provisions  of  the  

Extradition Act, 1962.  In order to codify the laws relating  

to  the  extradition  to  fugitive  criminals,  the  Parliament  

enacted the Extradition Act, 1962 which came into force  

on 05.01.1963.   It  extends to  the  whole  of  India.   The  

following definitions are relevant:

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“2. Definitions.--In this Act,  unless the context otherwise  requires,--

(a) .…. (b) ….. (c) extradition offence" means--

(i)  in  relation  to  a  foreign  State,  being  a  treaty State, an offence provided for in the extradition treaty  with that State;

(ii)  in relation to a foreign State other  than a treaty  State an offence punishable with imprisonment for a  term which shall not be less than one year under the  laws  of  India  or  of  a  foreign  State  and  includes  a  composite offence;

(d)  "extradition  treaty"  means  a  treaty,  agreement  or  arrangement made by India with a foreign State relating to  the extradition of fugitive criminals, and includes any treaty,  agreement  or  arrangement  relating  to  the  extradition  of  fugitive criminals made before the 15th day of August, 1947,  which extends to, and is binding on, India;

(e)  "foreign  State"  means  any  State  outside  India,  and  includes  every  constituent  part,  colony  or  dependency  of  such State;

(f)  "fugitive  criminal"  means  a  person  who  is  accused  or  convicted of an extradition offence within the jurisdiction of  a foreign State and includes a person who, while in India,  conspires, attempts to commit or incites or participates as  an accomplice in the commission of an extradition offence in  a foreign State. (g) ….. (h) ….. (i) …… (j)  "treaty  State"  means  a  foreign  State  with  which  an  extradition treaty is in operation.”

”3. Application of Act.--(1) The Central Government may, by  notified  order,  direct  that  the  provisions of  this  Act  other  than Chapter  III  shall  apply to such foreign State  or  part  thereof as may be specified in the order.

(2) The Central Government may, by the same notified order  

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as is referred to in sub-section (1) or any subsequent notified  order, restrict such application to fugitive criminals found, or  suspected to be, in such part of India as may be specified in  the order.

(3) Where the notified order relates to a treaty State,- (a) it  shall  set  out  in  full  the  extradition  treaty  with  that  

State; (b)  it  shall  not remain in force for any period longer than  that treaty; and (c)  the  Central  Government  may,  by  the  same  or  any  subsequent notified order, render the application of this Act  subject  to  such  modifications,  exceptions,  conditions  and  qualifications as may be deemed expedient for implementing  the treaty with that State.

(4) Where there is no extradition treaty made by India with  any foreign State, the Central Government may, by notified  order,  treat  any  Convention  to  which  India  and a  foreign  State are parties, as an extradition treaty made by India with  that foreign State providing for extradition in respect of the  offences specified in that Convention.”

 “Section 21: Accused or convicted person surrendered or  returned  by  foreign  State  not  to  be  tried  for  certain  offences –  Whenever any person accused or convicted of an  offence, which, if committed in India would be an extradition  offence, is surrendered or returned by a foreign State, such  person shall not, until he has been restored or has had an  opportunity of returning to that State, be tried in India for an  offence other than--

(a)  the  extradition  offence  in  relation  to  which  he  has  surrendered or returned; or

(b)  any lesser  offence disclosed by the facts proved for  the  purpose of  securing his surrender or return other than an  offence  in  relation  to  which  an  order  for  his  surrender  or  return could not be lawfully made; or

(c) the offence in respect of which the foreign State has given  its consent.”

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17) United  Nations  General  Assembly  adopted  the  

Convention for the Suppression of Terrorist Bombings on 15th  

December,  1997.   It  is  not  in  dispute  that  both  India  and  

Portugal  are  signatories  to  the  said  Convention.   In  the  

absence  of  any  special  treaty  between  India  and  Portugal,  

being the signatories to the said Convention, the requisition  

for extradition of the appellant-Abu Salem was signed by the  

then  Minister  of  State  of  External  Affairs.  The  said  

communication reads as under:-

                                                 “Omar Abdullah

MINISTER OF STATE FOR EXTERNAL AFFAIRS

REQUISITION  FOR  EXTRADITION  OF  MR.  ABU  SALEM  ABDUL  QAYOOM  ANSARI  FROM  THE  PORTUGUESE REPUBLIC

I,  Omar  Abdullah,  Minister  of  State  for  External  Affairs, Government of the Republic of India, relying on  the  International  Convention  for  the  Suppression  of  Terrorist Bombings and on an assurance of reciprocity  as applicable in international law, hereby request that  Mr. Abu Salem Abdul Qayoom Ansari, Indian national,  who is accused of having committed certain criminal  offences  in  India,  and  has  been  charged  under  the  following Sections of the Indian Penal Code:   

201  (causing  disappearance  of  evidence  of  offence);  302  (Punishment  for  Murder);  307  (Attempt  to  murder);  324  (Voluntarily  causing  hurt  by  dangerous  weapons);  326  (voluntarily  causing grievous hurt  by dangerous weapons);  

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427 (Mischief causing damage); 435 (Mischief by  fire);  468  (Forgery  for  purpose  of  cheating);  471(Using as genuine a forged document) of the  Indian Penal Code read with Sections 3, 4 and 5  of Terrorist and Disruptive Activities (Prevention)  Act,  1987 read  with  Sections  3,  7(a),  25(1)(A),  25(1)(AA), 26, 29, 35 of Arms Act 1959 read with  Sections 3, 4, 5 & 6 of Explosive Substances Act  of  1998   read  with  Section  12(1)(b)  of  the  Passport Act, 1967 and 120-B (Punishment for  Criminal Conspiracy) of Indian Penal Code.

In  connection  with  Criminal  Case  Nos.  CR.1(S)/93/CBI/STF/Mumbai,  RC  15(S)/97/CBI/STF/NE  .  Delhi  and  RC  34(A)/2002-CBI/Hyderabad  of  the  Central  Bureau of Investigation;

And

Sections 387 (Putting person in fear of death);  506 (Punishment for criminal intimidation); 507  (Criminal  Intimidation  by  an  Anonymous  Communication);  120-B  (Punishment  for  Criminal  Conspiracy);  201  (Causing  Disappearance of Evidence of Offence) of Indian  Penal Code read with  3(ii), 3(iv) of Maharashtra  Control  of  Organized    Crime  Act,  1999  in  connection  with  Criminal  Case  No.  88/2002  dated  04/04/2002  of  Police  Station  Greater  Kailash, New Delhi

And  

Sections 387 (Putting person in fear of death);  506  (Punishment  for  Criminal  Intimidation);  120-B (Punishment for Criminal Conspiracy) of  Indian Penal Code in connection with Case FIR  No.  39/02  dated  26/07/02  of  Police  Station  Special Cell, Lodhi Colony, New Delhi  

And  

Section  120-B  (Punishment  for  Criminal  Conspiracy) of Indian Penal Code; read with 302  (Punishment for Murder) of Indian Penal Code in  

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connection with Case FIR No. 849/98 of Police  Station, Hauz Khas, New Delhi.

And  

Sections  120-B  (Punishment  for  Criminal  Conspiracy) read with Section 384 (Punishment  for  Extortion)  of  Indian  Penal  Code,  in  connection with Case FIR No. 850/98 of Police  Station, Hauz Khas, New Delhi And

Section 302 (Punishment for Murder) of Indian  Penal  code;  read  with  Arms  Act  and  Maharashtra Control of Organized Crime Act, in  connection  with  Criminal  Case  No.  CR  No.  52/2001 of Crime Branch –CID Mumbai.

And

Section 307 (Attempt to Murder);  and 34 (Acts  done  by  several  persons  in  furtherance  of  common  intention)  of  Indian  Penal  Code  in  connection with CR No. 144/99 of Police Station  D.N. Nagar, Mumbai.

Be surrendered to the  Republic  of  India  to be  dealt  with according to law.

Particulars  of  the  person whose  extradition  is  being  requested, facts of the cases, relevant laws under which he  has been charged and the evidence to justify  the issue of  warrant for his arrest have been given in the form of duly  sworn Affidavit together with other supporting documents in  the enclosed volumes.

I may further state that there are a number of  other  criminal  cases  in  which  Mr.  Abu  Salem  Abdul  Qayoom  Ansari is involved.  A formal extradition request in respect of  some of these criminal cases will be submitted shortly.

I, hereby, certify that all documents enclosed herewith  have been authenticated, I have signed my name and caused  my seal to be affixed hereunto at New Delhi today, the 13th  December, 2002.

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Sd/- illegible (Omar Abdullah)

          Minister of State for External Affairs

          Government of the Republic of India”

The  above  communication  was  supported  on  facts  with  a  

detailed affidavit dated 11.12.2002 duly sworn to by Mr. Om  

Prakash Chhatwal,  Senior  Superintendent  of  Police,  Central  

Bureau of Investigation, Special Task Force, New Delhi  

18) On 13.12.2002, a Gazette Notification was issued making  

the  provisions  of  the  Extradition  Act,  except  Chapter  III,  

applicable  to  Portuguese  Republic  under  sub-Section  (1)  of  

Section 3 of the said Act.  (published in the Gazette of India,  

Extraordinary, Pt. II, Section 3(i) Dated 13.12.2002).

19) In  addition  to  the  requisition  by  the  then  Minister  of  

State  for  External  Affairs  and  the  Gazette  Notification,  on  

17.12.2002,  an assurance was extended by the then Deputy  

Prime Minister of India which reads as under:

    “L.K. ADVANI Deputy Prime Minister

No. I/11011/90/2000-IS-IV        December 17, 2002

Excellency,

At  the  outset,  I  would  like  to  express  my  deep  appreciation for your letter October 4, 2002 in response to  

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the letter of our External Affairs Minister of September 23,  2002  regarding  the  return  of  Abu  Salem  Abdul  Qayoom  Ansari to India.  In your letter, you had advised that a formal  extradition  request  be  presented  which  would  fulfill  the  requirements of Portuguese law.  Accordingly, the concerned  authorities in India have been in the process of preparing the  required formal extradition request for presentation.

In  this  context,  we  have  been  informed  that  under  Portuguese  law,  an  offender  cannot  be  extradited  to  the  requesting  country  if  the  offence  or  offences  committed  attract  the  visitation  of  either  the  death  penalty  or  imprisonment for an indefinite period beyond 25 years.  As  the  offences  Abu Salem Abdul  Qayoom Ansari  is  charged  with or accused of would attract the death penalty and life  imprisonment  under  Indian  law,  a  solemn  sovereign  assurance is required to enable his extradition from Portugal  to India.

The Government of India also desires that Abu Salem  Abdul  Qayoom  Ansari’s  accomplice,  Monica  Bedi,  be  extradited to India.  One of the offences she is accused of  would carry  the penalty of life imprisonment, Monica Bedi  was arrested in Portugal on September 18, 2002 along with  Abu Salem Abdul Qayoom Ansari.

The issue of the legal basis for the above assurance to  be  given by the  Government  of  India  has been given due  attention.  I  may mention that Section 34(c) of the Indian  Extradition Act, 1962 states that “Notwithstanding anything  contained in any other law for the time being in force, where  a fugitive criminal, who has committed an extradition offence  punishable with death in India is surrendered or returned by  a foreign State on the request of the Government and the  laws  of  that  foreign  State  do  not  provide  for  the  death  penalty for such an offence, such fugitive criminal shall be  liable for punishment of imprisonment for life only for that  offence.”

Further  Article  72  (1)  of  the  Constitution  of  India  provides that “The President shall have the power to grant  pardons, reprieves, respites or remissions of punishment or  to suspend, remit or commute the sentence of any person  convicted of any offence.”  In all cases where the punishment  or sentence is for any offence against any law relating to a  

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matter to which the executive power of the Union extends  including  where  the  sentence  is  a  sentence  of  death.  Further, it is a settled law that the power under Article 72 of  the Constitution of India is to be exercised on the advice of  the Government and not by the President acting on his own  and that  the  advice  of  the Government  is  binding on the  Head of  the State.   Also,  the President’s  power under the  said  Article  72  is  a  constitutional  power  and  is  beyond  judicial review.

It  is  also  pertinent  to  state  that  in  addition  to  the  above  provisions,  Section  432  and  433  of  the  Code  of  Criminal  Procedure  of  India  1973  confer  power  on  the  Government, to commute a sentence of life imprisonment to  a term not exceeding 14 years.

The Government of India, therefore, on the basis of the  provisions  of  the  Constitution  of  India,  the  Indian  Extradition Act, 1962 and the Code of Criminal Procedure of  India,  1973 solemnly  assures  the  Government  of  Portugal  that it will  exercise its powers conferred by the Indian laws  to ensure that if extradited by Portugal for trial in India, Abu  Salem Abdul Qayoom Ansari and Monica Bedi would not be  visited by death penalty or imprisonment for a term beyond  25 years.

Please accept,  your Excellency,  the assurance of  my  highest consideration.

Sd/- illegible        (L.K. ADVANI)

H.E. MR. ANTONIO MARTINS DA CRUZ MINISTER FOR FOREIGN AFFAIRS PORTUGAL”   

20) In  pursuance  of  all  the  above  assurances  and  

communications, on 28.03.2003, the Ministerial order came to  

be  passed  admitting  extradition  amongst  others  for  Section  

120B  read  with  Section  302  IPC,  Section  3(2)  of  TADA.  

However, the ministerial order declines extradition for Section  

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25(1A)  and  (1B)  of  the  Arms  Act  and  Sections  4  &  5  of  

Explosive Substances Act.  On 25.05.2003, the Ambassador of  

India in Lisbon gave further assurance that they will not be  

tried for offences other than those for which extradition was  

sought for and they will not be extradited to a third country.

21) In pursuance of the Ministerial order dated 28.03.2003,  

Her  Excellency,  the  Minister  of  Justice,  under  the  terms  

provided  in  No.  2  of  Article  48  of  Law  144/99  submitted  

through the Public Prosecution a request for extradition before  

the Court of Appeals of Lisbon.  The appellant–Abu Salem also  

preferred an appeal against the order of Extradition before the  

Court  of  Appeals,  Lisbon.   By  order  dated  14.07.2004,  the  

Court of Appeals Lisbon agreed to authorize extradition for the  

offences  contained  in  the  request  of  prosecution  with  an  

exception  of  offences  punishable  with  death  or  life  

imprisonment.  Aggrieved by the same, the Public Prosecution  

challenged the order of Court of Appeals before the Supreme  

Court  of  Justice  by  lodging  an  appeal  on  23.07.2004  and  

sought extradition also for offences punishable with death and  

life imprisonment.  On 29.07.2004, the appellant also filed an  

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appeal  against  the said order  of  the Court  of  Appeals.   On  

27.01.2005,  the  Supreme  Court  of  Justice  permitted  the  

extradition for the offences in view of the assurances given by  

the Government of India that the person extradited would not  

be visited by death penalty or imprisonment for a term beyond  

25  years.   In  addition  to  the  same,  on  03.03.2005,  the  

Supreme  Court  of  Justice  issued  a  supplementary  order  

maintaining  the  decision  made  on  27.01.2005.   On  

13.06.2005, the petition for appeal of the appellant-Abu Salem  

was  rejected  by  the  Constitutional  Court  by  upholding  the  

constitutional  validity  of  the  provisions  of  Article  9.3  of  the  

said New York Convention which obliges the signatory State  

for extradition for offences covered under it  notwithstanding  

lack  of  mutual  extradition  treaty  between  the  parties.   On  

10.11.2005, the custody of the appellant was handed over to  

the Indian Authorities and on 11.11.2005, the appellant was  

brought  to  India  and  was  produced  before  the  Designated  

Court,  Mumbai  in  RC-1(S)  of  1993  and  by  order  dated  

18.03.2006, the substantive charges in addition to charge of  

conspiracy were framed against the appellant and his plea of  

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not  guilty  and claim of  trial  was recorded.   Thereafter,  the  

prosecution  filed  Miscellaneous  Application  bearing  No.  

144/2006 seeking separation of the trial of the accused from  

the  main  trail  in  the  Bombay  Bomb  Blast  case.   In  the  

meanwhile,  the appellant  also filed Misc.  Appeal  No. 161 of  

2006 seeking production of relevant record of extradition and  

sought joint trial along with other 123 accused whose trial was  

nearing  completion.   By  order  dated  13.06.2006,  the  

Designated Court allowed the application of the Prosecution  

for separation of trial and held that the trial would continue as  

BBC-1-B/1993 in continuity with the earlier joint case.  The  

Designated Court has pointed out that the assurances were  

given with respect to sentences which could be imposed and  

not with respect to the offences with which he could be tried.  

It was further held that the ‘lesser offence’ in Section 21 of the  

Extradition  Act  covers  wider  matters  than  the  phraseology  

“minor offence” in Section 222 of Criminal Procedure Code.  It  

was also held by the Designated Court that although the overt  

acts with which the appellant has been charged may not be  

cognate with the ingredients of offence with which he has been  

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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  

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  

Article 16 of Law 144/99.  It is brought to our notice that on  

18.05.2007,  the  Court  of  Appeal  expressed  its  inability  to  

enquire into the question of surrender by the Indian State on  

the  ground  that  the  Indian  State  has  violated  certain  

conditions on which extradition was granted.  When the said  

order  was  carried  in  appeal  before  the  Supreme  Court  of  

Justice, which by order dated 13.12.2007, remitted the matter  

to  the  Court  of  Appeals  to  enquire  whether  there  has been  

violation of  any condition as alleged by the appellant.   The  

Court of Appeals, by order dated 13.10.2008, has adjourned  

the matter till this Court passes a final order in the present  

case.

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23) The main grievance of the appellant is that inasmuch as  

he  being  specifically  extradited  for  trial  of  certain  offences  

only,  the  present  action  of  the  Designated  Court  and  the  

prosecution adding other offences without recourse to specific  

order from the Government of Portugal cannot be sustained.  

Before us, learned counsel for the appellant administered the  

list of offences for which Government of Portugal agreed to and  

adding  certain  other  charges  which  are  in  flagrant  

disobedience of the mandate of Section 21 of the Extradition  

Act  as  well  as  the  solemn  sovereign  assurance  of  the  

Government of India.  According to the appellant, the charges  

under Sections 3(4) , 5 and 6 of the TADA Act, Sections 4(b)  

and 5 of the Explosive Substances Act, Section 25 of the Arms  

Act,  Section  9B  of  the  Explosives  Act  and  charges  under  

Section 120-B, 387 and 386 of  IPC and under Section 5 of  

TADA are all impermissible, contrary to the solemn sovereign  

assurance of the Government of India, the ministerial order of  

extradition  of  the  appellant  passed  by  the  Government  of  

Portugal, the   judgment of the Court of Appeals as well as the  

Supreme Court of Portugal.   

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24) The  parties  are  in  agreement  over  the  application  of  

Section 21 of the Extradition Act, 1962 (which we have already  

extracted in the earlier part of our judgment) to the case of  

extradition  of  the  appellant  from  Portugal  to  India  on  

11.11.2005.  We have already pointed out that in the absence  

of formal treaty between India and Portugal,  the request for  

extradition had been made under the International Convention  

on  Suppression  of  Terrorist  Bombings.   By  virtue  of  

Notification dated 13.12.2002, the Government of India made  

the provisions of the Extradition Act applicable for the purpose  

of extradition of the appellant from Portugal to India.  It is also  

pointed out that in the ministerial order dated 28.03.2003, the  

Government of Portugal rejected the request for extradition of  

the appellant for the offences under Sections 201, 212, 324,  

326, 427 of the Indian Penal Code, Sections 3(4), 5 and 6 of  

the TADA Act, Sections 4 & 5 of the Explosive Substances Act,  

Section 9B of the Explosives Act and Section 25(1A) and (1B)  

of  the  Arms  Act.   Similarly,  the  Government  of  Portugal  

rejected  the  request  for  extradition  of  the  appellant  for  the  

offences under Sections 120-B, 387 and 386 IPC and under  

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Section  5  of  the  TADA  Act.   The  said  Notification  dated  

11.04.2003  was  published  in  the  official  gazette  of  the  

Government  of  Portugal  specifying  the  offences  for  which  

consent for extradition was granted.  Learned counsel for the  

appellant has pointed out that the Court of Appeals and the  

Supreme Court of Portugal confirmed the ministerial order and  

the Notifications.  The Supreme Court of Portugal specifically  

referred  to  the  “Principle  of  Speciality”  and  the  assurances  

given by the Government of India regarding the fulfillment of  

the speciality rule.  The pith and substance of the argument of  

the counsel for the appellant is that once the appellant has  

been brought to India on the basis of the extradition treaty, he  

can  only  be  tried  for  offences  mentioned  in  the  extradition  

decree for which his extradition had been sought and not for  

other offences. He also pointed out that the Designated Court  

has no jurisdiction to try the appellant for such offences.  He  

relied on the judgment of this Court in Daya Singh Lahoria  

vs. Union  of  India  & Ors.,  (2001)  4  SCC  516.   Learned  

counsel pressed into service the following principles in respect  

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of “Doctrine of Speciality”  as discussed in pages 521-522 of  

the judgment:

“The doctrine of speciality is yet another established  rule of international law relating to extradition. Thus, when a  person is extradited for a particular crime, he can be tried  for only that crime. If the requesting State deems it desirable  to try the extradited fugitive for some other crime committed  before his extradition, the fugitive has to be brought to the  status quo ante, in the sense that he has to be returned first  to  the  State  which  granted  the  extradition  and  a  fresh  extradition  has  to  be  requested  for  the  latter  crime.  The  Indian  Extradition  Act  makes  a  specific  provision  to  that  effect.  In view of Section 21 of the Indian Extradition Act,  1962 an extradited fugitive cannot be tried in India for any  offence other than the one for which he has been extradited  unless he has been restored to or has had an opportunity to  return to the State which surrendered him. The doctrine of  speciality  is  in fact  a  corollary  to the principles  of  double  criminality,  and the aforesaid doctrine is  premised on the  assumption that whenever a State uses its formal process to  surrender a person to another State for a specific charge, the  requesting  State  shall  carry  out  its  intended  purpose  of  prosecuting or punishing the offender for the offence charged  in its request for extradition and none other. (See M. Cherif  Bassiouni  —  International  Extradition  and  World  Public  Order.) In the book International Law by D.P. O’Connell, the  principle of speciality has been described thus:

“According  to  this  principle  the  State  to  which  a  person has been extradited may not, without the consent of  the requisitioned State, try a person extradited save for the  offence  for  which  he  was  extradited.  Many  extradition  treaties embody this rule, and the question arises whether it  is one of international law or not.”

The United States Supreme Court,  while not placing  the rule on the plane of international law, did in fact arrive  at  the  same  conclusion  in  the  case  of  United  States v.  Rauscher. The Supreme Court denied the jurisdiction of the  trial  court  even  though  the  Treaty  did  not  stipulate  that  

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there should be no trial and held: (US pp. 429-30:L Ed p.  432)

“[T]he weight of authority and of sound principle are in  favour  of  the  proposition  that  a  person  who  has  been  brought  within  the  jurisdiction  of  the  court  by  virtue  of  proceedings under an extradition treaty can only be tried for  one  of  the  offences  described  in  that  treaty,  and  for  the  offence with which he is charged in the proceedings for his  extradition,  until  a  reasonable  time  and opportunity  have  been given him, after his release or trial upon such charge,  to return to the country from whose asylum he had been  forcibly taken under those proceedings.”

In  view  of  the  aforesaid  position  in  law,  both  on  international  law  as  well  as  the  relevant  statute  in  this  country, we dispose of these cases with the conclusion that a  fugitive  brought  into  this  country  under  an  extradition  decree can be tried only for the offences mentioned in the  extradition decree and for no other offence and the criminal  courts of this country will have no jurisdiction to try such  fugitive for any other offence. This writ petition and special  leave petitions are disposed of accordingly.”

If we apply the above principles in terms of the order of the  

Government  of  Portugal,  the  Designated  Court/Prosecution  

cannot  go  beyond  the  various  offences  mentioned  in  

extradition decree.  Mr. Gopal Subramaniam, learned Solicitor  

General  and  Mr.  H.P.  Rawal,  learned  Additional  Solicitor  

General explained the “Rule of Speciality”.  Learned Solicitor  

General  has  highlighted  his  arguments  by  way  of  an  

illustration, namely, a defendant extradited to UK is entitled to  

the  speciality  protection  contained  in  Section  146  of  

Extradition  Act,  2003 (C.41).   In other  words,  following  his  

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extradition,  he  may only be tried  in respect  of  the offences  

specified  in  that  section.   The  offences  specified  in  Section  

146(3) are as follows:

(a) the  offence  in  respect  of  which  the  defendant  is  

extradited;

(b) an offence disclosed by the information provided to the  

category 1 territory in respect of that offence;

(c) an extradition offence in respect of which consent to  

the defendant being dealt with is given on behalf of the  

territory  in  response  to  a  request  made  by  the  

appropriate judge;

(d) an offence which is not punishable with imprisonment  

or another form of detention;

(e) an offence in respect of which the person will not be  

detained  in  connection  with  his  trial,  sentence  or  

appeal;

(f) an offence in respect of which the person waives the  

right that he would have (but for Section 146(6)(f) not  

to be dealt with for the offence.

25) The “Rule of Speciality” has been succinctly explained in  

the  treatise  “The  Law  of  Extradition  and  Mutual  

Assistance”.  (Second  Edition  by  Clive  Nicholls  QC,  Clare  

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Montgomery QC, Julian B. Knowles – Oxford Publication) by  

way of the following example:

“The operation of the speciality principle in this context can  be illustrated by an example, based on the facts of Kerr and  Smith (1976) 62 Cr App R 210 (a case under the EA 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  course  of  the  robbery.  This  is  an offence  contrary  to  S.  18  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, 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 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:

“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,  then,  until  he  has  been  restored  or  had  an  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.  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  

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offence which is not an extradition crime the onus of proving  that he was 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 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 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  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.   Although  a  returned  fugitive  may  ordinarily  be  tried  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  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 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  

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requires that the extradited persons should be tried for the act  

or acts 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:

“Article 16--Rule of Speciality

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  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.

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,  for  any  act  committed, or any sentence passed, prior to his leaving  the Portuguese territory, other than those mentioned in  the request for cooperation.

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 effect that the rule of speciality shall  be complied with.

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 or  the  territory  of  another  State,  as  applicable,  

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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;

(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.

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 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 preceding  paragraph  shall  be  accompanied  by  a  document  established by the competent authority, containing the  statements made by the person who benefits from the  rule of speciality.

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 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  

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  

Portugal, the law in India only permits the extradited person to  

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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 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 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  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 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  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  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  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.

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30. The  same  principle  applies  to  extradition  cases.  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  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 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 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  an offence,  which, if committed in India would be an extradition offence,  is surrendered or returned by a foreign State, such person  shall  not,  until  he  has  been  restored  or  has  had  an  opportunity of returning to that State, be tried in India for an  offence other than—

(a)  the  extradition  offence  in  relation  to  which  he  was  surrendered or returned; or

(b) any lesser offence disclosed by the facts proved 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.”                                   

32. It  is,  therefore,  clear  that  the  general  principle  of  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.

33. In  Daya  Singh this  Court  dealing  with  amended  Section 21 of the Extradition Act, stated: (SCC p. 519, para  3)

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“The provision of the aforesaid section places restrictions on  the trial of the person extradited and it operates as a 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 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.”

34. Now,  it  cannot  be  disputed  that  an  offence  under  Section  365  IPC  is  a  lesser  offence  than  the  offence  punishable  under  Section  364-A  IPC.  Since  extradition  of   Suman Sood was allowed for a crime punishable with higher   offence (Section  364-A IPC),  her  prosecution  and trial  for  a  lesser offence (Section 365 IPC) 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 Sood (supra) is directly applicable to  

the case on hand.   

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  

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  

5

Extradition  Act,  1962  applicable  to  Government  of  Portugal  

except Chapter III.  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 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 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 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.  The  

5

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  

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 with the principle of reciprocity. The  

provisions  of  the  Act  are  applicable  in  respect  of  the  

extradition of appellant-Abu Salem.  The Court of Appeals of  

Lisbon  has  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 tried in India for the offences for which  

his trial could take place as per the domestic laws of India.  

5

29) We have already adverted to Section 21 of the Extradition  

Act.  A bare reading of the above section would 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  

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 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 Procedure.  The Legislature has deliberately used  

the  word  “lesser”  in  Section  21(b)  of  the  Extradition  Act  

5

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”.         

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  

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 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 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  

5

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 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.  

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  

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 pointed out by the Solicitor General, there has been no  

violation of Rule of Speciality.  As per the Government of India  

5

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 III 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 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 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  

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.  

5

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  

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  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 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  

5

Solicitor General and the 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 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 a list of witnesses examined in the main  

trial for cross-examination.  Hence, there is no basis in the  

apprehension 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  

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  

6

connected matters have already been disposed of,  we direct  

the Designated Court to proceed with the trial expeditiously.  

...…………………………………J.                   (P. SATHASIVAM)  

NEW DELHI; SEPTEMBER 10, 2010.       

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDITION

CRIMINAL APPEAL NO. 990 OF 2006

Abu Salem Abdul Qayoom Ansari …Appellant(s)

Versus

State of Maharashtra & another …Respondent(s)

WITH CRIMINAL APPEAL NOS.1142-1143 OF 2007

AND WRIT PETITION (CRIMINAL) NO.171 OF 2006

6

J U D G M E N T

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.   

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 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 country and thus seeks to avoid  

conviction and the consequential punishment.  This poses a threat in all  

6

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,  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 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:-

“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.”

[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  Extradition  and  World  Public  Order,  1974,  

Oceana Publications”. The learned Professor explained:

6

“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 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-subject  of  the  proceedings.  To  a  large  extent,  the  processes and its participants have not changed much in the course  of  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 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 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 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  

6

to combine speed and justice [Re Evans – 1994 (3) All E.R. 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 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  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 decision of European Court  

of Human Rights rendered in  Soering vs.  United Kingdom reported in  

1989 (11) EHRR 439 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  community  and  the  requirements  of  the  protection  of  the  individual’s  fundamental  rights. As movement about the world becomes easier and crime  

6

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 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  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 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 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-Inquiry is a well developed norm both  

in Canada and in America [See the decision of Canadian Supreme Court  

in 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 country a  person accused of having committed a crime there for trial in the  ordinary way in accordance with the system for the administration  

6

of justice prevailing in that country simply because that system is  substantially  different  from  ours  with  different  checks  and  balances.  The 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  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 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 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  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  

6

requesting State. That is why the Courts of Portugal await the decision of  

this Court. However, non-inquiry is not an absolute 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 extradition.  

15.There are  cases where the requested State  has 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 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 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.

6

16.Furthermore  obligations  entered  by  many  countries  of  the  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 principle of  

non-inquiry. Even though, non- inquiry is not an absolute doctrine, but in  

facts of 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 Suppressing Terrorist Bombings.  

18.United Nations General Assembly adopted on 15th December 1997, the  

International  Convention  for  the  Suppression  of  Terrorist  Bombings.  

India has been a party to this Convention, ever since the Union Cabinet  

approved it on 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  

6

places with the intention to cause serious bodily 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 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  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  

predecessors,  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. [See Samuel M. Witten, The  

International Convention for the Suppression of Terrorist Bombings, The  

7

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 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).  

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 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  

independent of it.

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23.The learned Solicitor  General rightly placed reliance on the following  

observation of  the  Designated Court  in  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 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 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.   

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 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  

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Objects  and Reasons for enacting the  Act 66 of 1993 (hereinafter  the  

Amending Act) are set out:

“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 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  III  to  conclude  special  extradition  arrangements with respect to Commonwealth countries only. Such  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 developments in Extradition Law at  international  level.  Commonwealth  countries  are  concluding  extradition  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 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  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:

a. to enable India to conclude extradition treaties with  foreign  States  including  the  Commonwealth  countries without treating them structurally different;

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b. to  provide  for  extra-territorial  jurisdiction  over  foreigners  for  crimes  committed  by  them  outside  India;

c. to incorporate composite offences in the definition of    extradition offence;

d. to exclude political offence as a defence in cases of  offences of a serious nature;

e. to  cover  extradition  requests  on  the  basis  of  international  Conventions  within  the  scope  of  the  Act;

f. to enable Central Government to make and receive  requests for provisional arrest of fugitives in urgent  cases  pending the receipt  of  the  formal extradition  request;

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.

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 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  

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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 international  

law and partakes of doctrines of both double 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:

“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 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.”

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  to  the  specifics,  but  rather  a  consensus  ad  idem in  the  

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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 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 nulla poena sine  

lege”  (no  penalty  without  prior  legal  authority)  (See  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 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  against  the  abuse  of  the  legal  process  of  the  

requested State. While the first takes care of the individual’s right, the  

second takes care of the rights of a sovereign State.

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32.Therefore it can be said that as long as the facts that have been submitted  

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.  

33.Therefore, I do not find any substance in the complaint of Abu Salem.  

34.Thus I concur with Brother Sathasivam and reach the same conclusion as  

His Lordship does.   

…………...............................J. New Delhi          (ASOK KUMAR GANGULY) September 10, 2010

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