Abu Salem Abdul Qayoom Ansari v. The State of Maharashtra & Ors. – Crl.A. No. 4336 – 4336 – 2026 (arising out of SLP (Crl.) No. 12871 of 2026) – 2026 INSC 982 – September 10, 2026 – Hon’ble Mr. Justice Vikram Nath and Hon’ble Mr. Justice Sandeep Mehta
Appeal and Impugned Judgment
The appeal by special leave under Article 136 of the Constitution of India is preferred by the appellant, Abu Salem Abdul Qayoom Ansari, assailing the final judgment and order dated 15th April, 2026 passed by the Division Bench of the High Court of Judicature at Bombay in Writ Petition No. 1586 of 2025, whereby the High Court dismissed the appellant’s writ petition seeking writs of habeas corpus and mandamus to direct the respondent-State to release him from custody on the ground that he had completed the 25-year maximum sentence contemplated under the sovereign assurance given to Portugal. [Paras 3, 4.8, 4.9]
Factual Matrix and Lower Courts’ Verdicts
The appellant, an operative associated with an organized criminal syndicate involved in serial subversive acts targeting Mumbai, was extradited from Portugal following an executive sovereign assurance conveyed on 17th December, 2002 by the then Deputy Prime Minister that he would neither be subjected to the death penalty nor imprisoned beyond 25 years. Following extradition clearance on 29th March, 2003 and physical custody handover on 10th November, 2005, the Special Court under the TADA (P) Act at Bombay convicted and sentenced the appellant to rigorous life imprisonment on 25th February, 2015 in TADA Case No. 1 of 2006, and subsequently on 7th September, 2017 in BBC Case No. 1 of 1993 to rigorous life imprisonment to run concurrently. On statutory appeal under Section 19 of the TADA Act, the Supreme Court, vide judgment dated 11th July, 2022, fixed 12th October, 2005 as the commencement date of detention, rejected set-off for foreign custody under Section 428 CrPC, and held that upon completing 25 years, the Central Government would be bound to consider clemency under Article 72 of the Constitution or Sections 432 and 433 CrPC, leading to the Bombay High Court subsequently dismissing the appellant’s premature release writ petition on 15th April, 2026 for lack of illegal or unauthorized detention. [Paras 4.1 to 4.9]
Core Legal Arguments of the Appellant and Respondent
The appellant contended that as of 30th June, 2026, he had completed 26 years, 9 months, and 22 days of incarceration by aggregating undertrial detention from 11th November, 2005 to 7th September, 2017 (11 years, 9 months, 26 days), post-conviction custody from 25th February, 2015 to 30th June, 2026 (11 years, 4 months, 4 days), and jail-earned remissions of 3 years, 6 months, and 2 days under Jail Register No. 6 and the State’s affidavit, citing Yovehel, Sriharan, and Swamy Shraddananda to assert that remissions must be added to actual incarceration. In response, the respondent-State argued that the appellant’s calculation impermissibly double-counted the overlapping custody period between 25th February, 2015 and 7th September, 2017 under concurrent sentences, while emphasizing via the Inspector General of Prisons’ affidavit that the appellant stands sentenced to life imprisonment—categorized under Rule 25(iii), Chapter XXXIX of the Maharashtra Prison Manual, 1979 as a 50-year term with a probable release date of 31st January, 2046—thereby precluding jail-earned remissions from being utilized to truncate the independent 25-year sovereign assurance cap. [Paras 10–13, 20–21, 27]
Ratio Decidendi
The Supreme Court affirmed that concurrent sentences operate simultaneously, legally prohibiting any notional double-counting or overlapping computation of the same period of incarceration to engineer an accelerated completion of sentence. Under the constitutional doctrine of separation of powers, an executive sovereign assurance extended to a foreign sovereign in extradition proceedings fixes an outer ceiling on detention but does not alter, convert, or restrict a judicial sentence of life imprisonment into a fixed-term sentence of 25 years. Accordingly, statutory jail-earned remissions applicable to fixed terms cannot be added to actual incarceration to advance premature release against a sovereign commitment ceiling; the prisoner must complete 25 years of actual physical custody reckoned from the designated date (12th October, 2005) before executive clemency under Article 72 of the Constitution or Sections 432 and 433 of the Code of Criminal Procedure, 1973 can be lawfully considered. [Paras 14–16, 18–19, 22–26, 28–31]
8. There is no dispute that this Court, vide judgment dated 11th July, 2022, disposed of the appellant’s appeals6 after taking note of the national commitment made by the Central Government to the Government of Portugal. This Court observed that, upon completion of 25 years, the Central Government would be required to consider advising the President under Article 72 of the Constitution or exercising its powers under Sections 432 and 433 of the CrPC for suspension or remission of the life sentences imposed upon the appellant by the TADA Courts.
10. The principal submission of learned counsel for the appellant is that, as on 30th June, 2026, the appellant had completed 26 years, 9 months and 22 days of incarceration. To arrive at this figure, learned counsel has divided the period of custody into three components.
11. First, it is contended that the appellant’s undertrial custody commenced from 11th November, 2005, the date of his arrest upon extradition from Portugal, and continued until 7th September, 2017, when he was convicted in BBC Case No. 1 of 1993. According to the appellant, this amounts to 11 years, 9 months and 26 days.
12. Second, for the period of post-conviction custody, learned counsel has taken 25th February, 2015, the date of conviction in TADA Case No. 1 of 2006, as the starting point and 30th June, 2026 as the terminal date, thereby computing a further period of 11 years, 4 months and 4 days.
Sentences running concurrently cannot be notionally counted twice for the purpose of determining completion of sentence
15. The fact that the sentences imposed in the two cases were directed to run concurrently is of significance. Sentences granted concurrently operate simultaneously, hence the same period of incarceration cannot, therefore, be notionally counted twice for the purpose of determining completion of the sentence. The appellant cannot treat the period preceding the later conviction as undertrial custody for one sentence while simultaneously treating the same period, from the date of the earlier conviction, as post-conviction custody for the other sentence and thereby secure a double benefit.
16. The distinction sought to be drawn between the expressions “undertrial custody” and “postconviction custody” cannot justify such overlapping computation. The period of incarceration has to be calculated in accordance with the direction expressly issued by this Court in its judgment dated 11th July, 2022. The methodology adopted by the appellant, apart from lacking legal foundation, artificially enlarges the period of custody by counting overlapping periods more than once.
17. The gravity of these offences assumes particular significance in the present case, especially when the appellant’s extradition was secured upon a solemn sovereign assurance given by the Government of India to the Government of Portugal. The offences in question were not merely directed against individual victims; they formed part of acts calculated to destabilise the country and undermine its economic progress by targeting Mumbai, the financial capital of India. The larger national and economic consequences of such acts, therefore, cannot be lost sight of while considering the appellant’s claim.
19. The question before us is consequently not whether the appellant is entitled to the benefit of the sovereign commitment made to the Government of Portugal, of which he is as already adjudicated by this Court. The question is whether he has, in law, completed the period of 25 years prescribed for that purpose. On the computation placed before us, we are unable to hold that he has and affirm the view expressed by the High Court on this aspect.
21. He further placed reliance upon the Full Bench judgment of the High Court in Yovehel v. State of Maharashtra, wherein reliance was placed upon the decisions of this Court in Union of India v. V. Sriharan @ Murugan, and Swamy Shraddananda v. State of Karnataka. On the strength of these decisions, it was contended that jail-earned remission is liable to be reckoned and added to the period of actual incarceration. It was, therefore, submitted that the High Court erred in holding that the benefit of jail-earned remission was unavailable to the appellant on the ground that the sentence imposed upon him was one of life imprisonment and not a fixed-term sentence.
24. The approach adopted by this Court is firmly rooted in the constitutional principle of separation of powers. The sovereign assurance extended by the Union Government to the Government of Portugal was an act of the Executive in the context of the appellant’s extradition, whereas the sentence imposed by the TADA Court was an exercise of judicial power, determining the punishment commensurate with the offences of which the appellant stood convicted. The prescription of the nature and extent of punishment is governed by the Legislature and its application to the facts of a particular case falls within the domain of the Judiciary. The Executive, in turn, exercises such powers in relation to remission, commutation or release as are conferred upon it by law.
Declining the jail-earned remission to the appellant
26. We are, therefore, unable to appreciate how the appellant can claim the benefit of “jail-earned remission” when the sentence imposed upon him continues to be one of life imprisonment. The stipulation regarding consideration of his release upon completion of 25 years cannot be construed to mean that the appellant was sentenced to a term of 25 years. The said stipulation operates only as a consequence of the sovereign assurance extended by the Union Government and requires the Central Government to consider the exercise of its powers in accordance therewith. It does not alter the nature or duration of the sentence imposed by the TADA Court and affirmed by this Court. The High Court was, therefore, justified in declining to extend the benefit of “jail-earned remission” to the appellant on the ground that no fixed-term sentence had been imposed upon him.
29. The appellant continues to stand convicted for life imprisonment, as imposed by the competent courts and affirmed by this Court. The stipulation that he cannot be detained beyond twenty-five years is a consequence of the sovereign assurance extended by the Union Government to the Government of Portugal. It does not convert the sentence of life imprisonment into a fixed-term sentence of twenty-five years. Consequently, the jail-earned remission cannot be notionally added to the period of incarceration so as to further advance the appellant’s release. To permit such a course would, in effect, confer a benefit over and above the consequence already flowing from the sovereign assurance, notwithstanding that the sentence itself remains one of life imprisonment.
30. The reliance placed by learned senior counsel on Yovehel (supra), Swamy Shraddananda (supra) and V. Sriharan (supra) is, in our considered view, misplaced. The factual and legal context in those cases was materially different. None of those cases involved a sovereign assurance pursuant to which the Executive had undertaken, in the context of extradition, that the prisoner would not be detained beyond a stipulated period. The principle governing the computation of remission in those cases cannot, therefore, be mechanically applied to the present case, where the appellant’s sentence remains one of life imprisonment and the twenty-five-year stipulation operates by virtue of the sovereign assurance.
31. The law of precedent operates upon the ratio decidendi of a decision read in the context of its material facts and the legal issue arising therein. A precedent cannot be applied divorced from the factual and statutory setting in which it was rendered. The decisions relied upon by the appellant, therefore, do not advance his case.
32. We, therefore, find no infirmity in the judgment dated 15th April, 2026, passed by the High Court of Judicature at Bombay in Writ Petition No. 1586 of 2025. The impugned judgment is accordingly upheld.
33. Consequently, the present appeal stands dismissed in limine.
Judgments Cited, Quoted, or Referred to in the Document
- Abu Salem Abdul Qayoom Ansari v. State of Maharashtra & Anr. [Judgment dated 11th July, 2022 in Criminal Appeal Nos. 679 of 2015 and 180 of 2018; 2022 SCC OnLine SC 852]: The Supreme Court disposed of the appellant’s appeals against his TADA convictions, fixing 12th October, 2005 as the commencement date of his custody, rejecting set-off under Section 428 CrPC for foreign detention, and ruling that upon the appellant completing 25 years of sentence, the Central Government is bound to advise the President under Article 72 or exercise powers under Sections 432 and 433 CrPC to remit/commute his sentence pursuant to the sovereign assurance given to Portugal.
- Yovehel v. State of Maharashtra [2020 SCC OnLine Bom 1318 (Full Bench)]: Relied upon by the appellant to claim that jail-earned remissions must be computed and added to the period of actual incarceration; held inapplicable by the Supreme Court as it did not arise in the context of an executive sovereign extradition assurance where the substantive judicial sentence remains life imprisonment.
- Union of India v. V. Sriharan @ Murugan [(2016) 7 SCC 1]: Cited by the appellant regarding the addition of earned remissions; distinguished as having a materially different factual and legal context that did not involve an executive sovereign commitment fixing an outer limit of incarceration during extradition.
- Swamy Shraddananda v. State of Karnataka [(2008) 13 SCC 767]: Cited by the appellant to support reckoning jail remissions alongside actual custody; distinguished by the Supreme Court on the ground that it did not involve an executive sovereign assurance in an extradition context.
Acts and Sections:
- Constitution of India: Article 72, Article 72(1), Article 136
- Code of Criminal Procedure, 1973 (CrPC): Section 428, Section 432, Section 433
- Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA): Section 19
- Maharashtra Prison Manual, 1979: Chapter XXXIX, Rule 25(iii)
