India promised Portugal a 25-year cap. The court said: not our problem.
Abu Salem was extradited from Portugal after India gave a solemn assurance — no death penalty, no life term beyond 25 years. But when he challenged his sentence, the Supreme Court drew a line between the Executive and the Judiciary.
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Abu Salem was extradited from Portugal after India gave a solemn assurance — no death penalty, no life term beyond 25 years. But when he challenged his sentence, the Supreme Court drew a line between the Executive and the Judiciary.
Portugal handed him over only after India swore he'd serve no more than 25 years. The Supreme Court just told the government: you keep that promise — but we won't.
He orchestrated extortion leading to murder in 1995 and the devastating 1993 Bombay Bomb Blasts. He fled India on a fake Pakistani passport. In a Portuguese courtroom, he heard his fate. India had chased him across continents. But Portugal had a condition before it would hand him over: give us your word, in writing, that this man will never face the death penalty and that his imprisonment will not exceed 25 years. India gave that word. A sovereign assurance, signed and sealed.
Seventeen years later, the question reached the Supreme Court of India: does that promise mean anything? And if it does, who has to keep it — the judges who sentence, or the government that made the promise?
When a proclaimed offender fled to Lisbon
He was a key member of a notorious crime syndicate. By 1995, Indian courts had declared him a proclaimed offender (a person officially notified as a fugitive from justice) in connection with extortion leading to murder and the Bombay Bomb Blasts. He slipped out of India on a fake Pakistani passport and landed in Portugal.
India wanted him back. But extradition (the formal process of sending a fugitive from one country to another for trial) is never simple. Portugal's courts examined the request and laid down conditions. The most critical: India must guarantee that he would not be executed, and that any prison sentence would not exceed 25 years.
India's government gave that guarantee. A sovereign assurance — a promise made by one nation to another, backed by the full weight of international law and diplomatic comity (the principle of mutual respect between nations). Portugal accepted. In 2005, he was extradited to India.
The signed assurance document, crisp and official, was the key that unlocked the Portuguese cell. The smell of old paper and ink filled the Lisbon courtroom as it was presented. It was the price of his passage back to India.
The trial court did not ask about Portugal
Back in Mumbai, the Designated TADA Court (the special court set up under the Terrorist and Disruptive Activities (Prevention) Act, 1987) tried him for multiple offences. In 2017, it convicted him under several provisions: Section 302 IPC (murder), Section 120-B IPC (criminal conspiracy), and Section 3(2)(i) TADA (terrorist acts). The court sentenced him to life imprisonment.
His lawyers argued that the sovereign assurance meant the court could not impose a sentence that effectively exceeded 25 years. The trial court disagreed. It said its job was to apply Indian law as written, not to enforce promises made by the government to a foreign country.
He appealed to the Supreme Court. Two questions hung over the case. First: could the sovereign assurance from Portugal bind an Indian court's sentencing power? Second: could he get credit for the time he spent in Portuguese custody before extradition — what the law calls "set-off" under Section 428 of the Code of Criminal Procedure, 1973 (the provision that allows a convict to count pre-trial detention toward the final sentence)?
The prosecution said: the court is independent
In the Supreme Court, the arguments split cleanly along the separation of powers — the constitutional principle that the Judiciary, the Executive, and the Legislature each have distinct roles and cannot interfere with each other's functions.
The prosecution argued that sentencing is a judicial function. No promise made by the government, not even a sovereign assurance to a foreign nation, can tell a judge what sentence to impose. The court must look at the crime, the law, and the evidence — nothing else. If the government made a promise it cannot keep, that is the government's problem, not the court's.
The defence countered that the assurance was the very reason Portugal handed him over. If Indian courts now ignore it, India's word becomes worthless on the international stage. No country will ever extradite a fugitive to India again if sovereign assurances can be undone by a domestic court. The assurance, they said, must bind everyone — including judges.
The Supreme Court drew a line
The bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh delivered its judgment on July 11, 2022. It drew a careful line.
On the first question — whether the sovereign assurance binds the court — the answer was no. The Court held that the doctrine of separation of powers "precludes sovereign assurance from binding courts in sentencing." The court must apply substantive criminal law (the actual penal statutes defining crimes and punishments) independently. A promise by the government, however solemn, cannot override the law that Parliament has enacted.
But the Court did not stop there. It said the Executive — the Union government — is independently bound by the assurance. The government cannot hide behind the court's sentence and claim it has no power to fix the problem. The Executive has constitutional and statutory tools: Article 72 of the Constitution (the President's power to grant pardons and remit sentences), and Sections 432 and 433 of the CrPC (the power to suspend, remit, or commute sentences). The Court directed the government to use these powers to ensure that his actual imprisonment does not exceed 25 years, counting from October 12, 2005 — the date he was detained for extradition in Portugal.
On the second question — set-off for Portuguese detention — the answer was also no. The Court held that Section 428 CrPC refers only to detention within India. Criminal law, it said, has no extra-territorial application (it does not operate outside India's borders). His time in Portuguese custody was for a separate set of proceedings in a different country. Allowing set-off would give him double benefit — the same period counting toward both a foreign sentence and an Indian one.
Why the set-off ruling matters for every accused
Section 428 CrPC is one of the most frequently used provisions in criminal practice. Every lawyer who represents an accused person needs to know: detention in a foreign country, for a different trial or offence, does not count toward an Indian sentence. The clock starts only when the accused is in Indian custody for the Indian case.
For practitioners, the key takeaway is this: if your client is extradited, do not assume the foreign detention period will reduce the Indian sentence. Argue it explicitly at the trial stage, and be prepared for the court to reject it unless the foreign and Indian proceedings are part of the same transaction.
THE PLAY: When negotiating an extradition or arguing sentence for an extradited client, treat the sovereign assurance as an Executive obligation — not a judicial one — and build your remission strategy around Article 72 and Sections 432-433 CrPC, not around the trial court's sentencing discretion.
The promise that binds the government, not the judge
The Supreme Court ended where the case began: with a promise made by one nation to another. The Court did not tear up that promise. It simply said: the judge's job is to judge, and the government's job is to keep its word. The two are not the same, and the Constitution does not let them trade places.
He will serve 25 years from October 2005. The government will have to ensure his release when that clock runs out. The weight of that promise, still binding on the Executive, will be felt in a prison cell in Mumbai. Portugal's courts will watch. And so will every other country that might one day receive an extradition request from India.