Can periods of undertrial and post-conviction custody that overlap be aggregated to compute the total period of detention for the purpose of the twenty-five-year stipulation?

No, the Court held that overlapping periods cannot be double-counted because the sentences in the two TADA cases run concurrently, and the same incarceration cannot be notionally counted twice.

Is jail-earned remission available to a life-sentence prisoner when the Executive has given a sovereign assurance limiting incarceration to twenty-five years?

No, the Court held that the assurance does not convert a life sentence into a fixed-term term, and remission cannot be added to the period of actual incarceration.

Sovereign Assurance Caps Imprisonment at 25 Years | No Double-Counting of Overlap Custody, Remission Excluded from Life Sentence : SC

Q: What does the sovereign assurance given to Portugal under the extradition of Abu Salem entail regarding the length of imprisonment?

It assures that the appellant will not be subjected to the death penalty or imprisonment exceeding twenty-five years, fixing an outer limit but not altering the judicial sentence.

Q: What obligation does the Central Government incur upon the prisoner completing the twenty-five-year period under such an assurance?

The Government must, within one month, advise the President to exercise powers under Article 72(1) of the Constitution to commute the remaining sentence, or itself exercise powers under Sections 432 and 433 of the CrPC to suspend or remit the sentence.

The Supreme Court dismissed Abu Salem’s special leave appeal challenging the Bombay High Court’s refusal to grant him premature release, holding that he had not yet completed the twenty-five-year sentence stipulated in the sovereign assurance given to Portugal. The Court clarified that the assurance only fixes an outer limit on incarceration and does not permit double-counting of overlapping custody periods or the addition of jail-earned remission to a life sentence.

Background & Facts

The Dispute

The appellant, Abu Salem Abdul Qayoom Ansari, was extradited from Portugal to India in November 2005 under a sovereign assurance given by the Government of India to the Government of Portugal that he would not be subjected to the death penalty or imprisonment exceeding twenty-five years. He was subsequently convicted in two separate TADA cases and sentenced to rigorous life imprisonment, with the sentences directed to run concurrently. Aggrieved by the Bombay High Court’s dismissal of his writ petition seeking release on the ground that he had already served twenty-five years, he filed a special leave appeal before the Supreme Court.

Key Facts

On 17 December 2002, the then Deputy Prime Minister, Shri L.K. Advani, conveyed a solemn sovereign assurance to the Government of Portugal that, upon extradition for trial, the appellant would neither be subjected to the death penalty nor imprisonment exceeding twenty-five years.
The Ministry of Justice, Portugal, vide order dated 29 March 2003, permitted the appellant’s extradition.
Custody was handed over to Indian authorities on 10 November 2005, and the appellant was extradited to India on 11 November 2005.
Upon extradition, he was arrested on 11 November 2005 in connection with BBC Case No. 1 of 1993.
In TADA Case No. 1 of 2006, he was arrested on 24 November 2005.
The TADA Court (Bombay) convicted him and sentenced him to rigorous life imprisonment on 25 February 2015.
The TADA Court, in BBC Case No. 1 of 1993, convicted him and sentenced him to rigorous life imprisonment on 7 September 2017, directing that the sentence run concurrently with the sentence imposed in TADA Case No. 1 of 2006.
The Supreme Court, in judgment dated 11 July 2022 (Criminal Appeal Nos. 679 of 2015 and 180 of 2018), held that the period of detention for computation of sentence would commence from 12 October 2005, rejected the claim for set-off under Section 428 CrPC, and refused to reckon formal arrest from 18 September 2002.
The Court observed that, upon completion of twenty-five years, the Central Government would be required to consider advising the President under Article 72 of the Constitution or exercising powers under Sections 432 and 433 of the CrPC for suspension or remission of the life sentences, in compliance with the national commitment and the principle of comity of courts.
The appellant approached the High Court by writ petition seeking habeas corpus and mandamus to direct the State to release him from custody, asserting that he had already completed twenty-five years of sentence.
The High Court, in judgment dated 15 April 2026, dismissed the writ petition, holding that the appellant had failed to demonstrate that his continued detention was unauthorised or illegal and that the twenty-five-year period fixed by the Supreme Court’s 11 July 2022 judgment had not yet been completed.
Aggrieved, the appellant filed the present special leave appeal, which was listed for hearing on 27 July 2026.

Procedural History

17 December 2002: Sovereign assurance conveyed to Portugal.
29 March 2003: Portuguese Ministry of Justice order permitting extradition.
10 November 2005: Custody handed over to Indian authorities.
11 November 2005: Extradition to India; arrest in BBC Case No. 1 of 1993.
24 November 2005: Arrest in TADA Case No. 1 of 2006.
25 February 2015: Conviction and life imprisonment in TADA Case No. 1 of 2006 (TADA Court).
7 September 2017: Conviction and life imprisonment in BBC Case No. 1 of 1993 (TADA Court), sentences to run concurrently.
11 July 2022: Supreme Court judgment disposing of appeals under Section 19 TADA Act, fixing detention commencement from 12 October 2005.
15 April 2026: Bombay High Court judgment dismissing writ petition (WP No. 1586 of 2025).
27 July 2026: Matter listed for special leave petition; Court heard arguments and reserved judgment.
10 September 2026: Supreme Court judgment delivered.

Parties' Positions

For the Appellant/Petitioner:

Contended that, as of 30 June 2026, he had completed 26 years, 9 months and 22 days of incarceration, calculated by adding undertrial custody (11 November 2005 to 7 September 2017), post-conviction custody (25 February 2015 to 30 June 2026) and earned remission of 3 years, 6 months and 2 days.
Argued that the Supreme Court’s 11 July 2022 judgment fixed the commencement of detention from 12 October 2005, thereby entitling him to release after twenty-five years.
Relied on the Full Bench judgment of the Bombay High Court in Yovehel v. State of Maharashtra and the Supreme Court decisions in Union of India v. V. Sriharan @ Murugan and Swamy Shraddananda v. State of Karnataka to submit that jail-earned remission is liable to be reckoned and added to the period of actual incarceration, even where the sentence is life imprisonment.

For the Respondent/State:

Submitted that the appellant’s computation impermissibly double-counts the overlapping period from 25 February 2015 to 7 September 2017, during which he was incarcerated under both sentences that run concurrently.
Emphasised that the Supreme Court’s 11 July 2022 judgment merely recognised the sovereign assurance and did not alter the life sentences imposed by the TADA Courts.
Argued that the assurance only fixes an outer limit of imprisonment and does not permit the addition of remission or the re-characterisation of a life sentence as a fixed-term term.
Contended that the reliance on Sriharan, Swamy Shraddananda and Yovehel is misplaced because those cases dealt with fixed-term sentences, not life imprisonment under a sovereign assurance, and the principle of comity of courts requires the Executive to act only after the judicial sentence has been served.

Relief Sought

The appellant sought:

Quashing of the Bombay High Court’s order dated 15 April 2026.
A direction for his immediate release from custody on the ground that he had already completed the twenty-five-year period stipulated in the sovereign assurance.
Alternatively, a declaration that he is entitled to the benefit of jail-earned remission of 3 years, 6 months and 2 days, to be added to his period of actual incarceration.

The Legal Issue

The central question was whether, for the purpose of determining completion of the twenty-five-year period stipulated in the sovereign assurance given to the Government of Portugal, the appellant’s custody could be computed by aggregating undertrial and post-conviction periods that overlap, and whether jail-earned remission could be added to a life sentence imposed under the TADA Act.

Arguments Presented

For the Appellant/Petitioner

The appellant contended that, as of 30 June 2026, he had completed 26 years, 9 months and 22 days of incarceration, comprising undertrial custody from 11 November 2005 to 7 September 2017 (11 years, 9 months, 26 days), post-conviction custody from 25 February 2015 to 30 June 2026 (11 years, 4 months, 4 days) and earned remission of 3 years, 6 months and 2 days. He argued that the Supreme Court’s judgment of 11 July 2022 fixed the commencement of detention from 12 October 2005, thereby entitling him to release after twenty-five years. He relied on the Full Bench judgment of the Bombay High Court in Yovehel v. State of Maharashtra and the Supreme Court decisions in Union of India v. V. Sriharan @ Murugan and Swamy Shraddananda v. State of Karnataka to submit that jail-earned remission is liable to be reckoned and added to the period of actual incarceration, even where the sentence is life imprisonment.

For the Respondent/State

The State submitted that the appellant’s computation impermissibly double-counts the overlapping period from 25 February 2015 to 7 September 2017, during which he was incarcerated under both sentences that run concurrently. It emphasised that the Supreme Court’s 11 July 2022 judgment merely recognised the sovereign assurance and did not alter the life sentences imposed by the TADA Courts. The State argued that the assurance only fixes an outer limit of imprisonment and does not permit the addition of remission or the re-characterisation of a life sentence as a fixed-term term. It contended that the reliance on Sriharan, Swamy Shraddananda and Yovehel is misplaced because those cases dealt with fixed-term sentences, not life imprisonment under a sovereign assurance, and the principle of comity of courts requires the Executive to act only after the judicial sentence has been served.

The Court's Analysis

The Court began by noting that there is no dispute that the Supreme Court’s judgment of 11 July 2022 fixed the commencement of detention for the purpose of computing the twenty-five-year period from 12 October 2005. The appellant’s calculation, however, suffered from a fundamental flaw: he treated the period from 25 February 2015 to 7 September 2017 as both undertrial custody (for the BBC Case) and post-conviction custody (for the TADA Case), thereby counting the same incarceration twice. As the Court observed, the sentences in the two TADA cases were directed to run concurrently, meaning that the same period of imprisonment cannot be notionally counted twice for the purpose of determining completion of the sentence.

The distinction between ‘undertrial custody’ and ‘post-conviction custody’ cannot justify such overlapping computation. The period of incarceration must be calculated in accordance with the methodology expressly laid down in the 11 July 2022 judgment, which requires a continuous, non-overlapping count from the date fixed by that judgment. The appellant’s approach, apart from lacking any legal foundation, artificially enlarges the period of custody by counting overlapping periods more than once.

Turning to the sovereign assurance, the Court held that the assurance given to Portugal only fixes an outer limit of imprisonment; it does not convert the life sentence imposed by the TADA Courts into a fixed-term sentence of twenty-five years. The assurance does not permit periods of custody to be counted twice or otherwise contrary to the manner directed by this Court.

"The assurance fixes the outer limit of imprisonment and it does not permit periods of custody to be counted twice or otherwise contrary to the manner directed by this Court."

The Court further observed that the Executive’s obligation under the assurance arises only upon completion of the twenty-five-year period, at which point the Central Government must advise the President to exercise powers under Article 72(1) of the Constitution to commute the remaining sentence, or itself exercise powers under Sections 432 and 433 of the CrPC to suspend or remit the sentence, within a period of one month. The assurance does not create a right to premature release or to add jail-earned remission to the period of actual incarceration.

The reliance on the Full Bench judgment in Yovehel v. State of Maharashtra and the Supreme Court decisions in Sriharan and Swamy Shraddananda was deemed misplaced. Those cases dealt with fixed-term sentences where remission is statutorily available, whereas here the appellant continues to stand convicted for life imprisonment as imposed by the competent courts and affirmed by this Court. The principle governing the computation of remission in those cases cannot be mechanically applied to a life sentence that remains unaltered by the sovereign assurance.

Finally, the Court found no infirmity in the High Court’s judgment dated 15 April 2026 and accordingly dismissed the appeal in limine, leaving the parties to bear their own costs.

The Verdict

Respondent State succeeded. The Supreme Court held that the appellant had not completed the twenty-five-year period stipulated in the sovereign assurance, as his custody computation impermissibly double-counted the overlapping period from 25 February 2015 to 7 September 2017. The Court affirmed that detention must be reckoned from 12 October 2005, and that upon completion of twenty-five years the Central Government is bound, within one month, to advise the President to exercise powers under Article 72(1) of the Constitution or to exercise powers under Sections 432 and 433 of the CrPC to suspend or remit the sentence. The appeal was dismissed in limine, with each party to bear its own costs.

What This Means For Similar Cases

Overlapping Custody Periods Cannot Be Double-Counted

When sentences run concurrently, the same period of incarceration cannot be counted separately as undertrial and post-conviction custody.
Practitioners must ensure that any calculation of detention period follows a continuous, non-overlapping timeline from the date fixed by the relevant judicial pronouncement.
Double-counting undermines the legislative intent behind concurrent sentences and may lead to erroneous claims for premature release.

Sovereign Assurances Fix Outer Limits Only

A sovereign assurance given to a foreign State in an extradition case only sets a maximum limit on imprisonment; it does not alter the judicial sentence imposed by domestic courts.
The Executive’s obligation under such an assurance arises only after the judicial sentence has been served, requiring advice to the President under Article 72 or action under Sections 432/433 CrPC within one month of the stipulated period.
Lawyers should not treat the assurance as a basis for early release or for adding statutory benefits such as remission to the period of actual incarceration.

Jail-Earned Remission Not Available for Life Sentences Under Assurance

Where a life sentence remains unaltered by a sovereign assurance, jail-earned remission cannot be notionally added to the period of actual incarceration to advance the date of release.
The benefit of remission is available only where the sentence is a fixed-term sentence; it cannot be imported into a life-sentence context merely because the Executive has promised an outer limit.
Counsel seeking remission must first establish that the sentence has been commuted or converted to a fixed term; otherwise, the claim for remission is untenable.