Supreme Court Rejects Abu Salem’s Early Release Plea; Holds 25-Year Portugal Extradition Assurance Does Not Permit Double-Counting Custody or Adding Jail-Earned Remission to Life Sentence
Supreme Court Dismisses Abu Salem’s Habeas Corpus Plea; Finds 25-Year Sentence Period Incomplete and Rejects Double-Counting of Overlapping Custody
Facts
The appeal was filed by Abu Salem Abdul Qayoom Ansari under Article 136 against the Bombay High Court’s judgment dated 15 April 2026 dismissing his writ petition seeking habeas corpus and mandamus for release from custody. Salem claimed that, after combining his undertrial detention, post-conviction incarceration and jail-earned remission, he had already completed the maximum period of 25 years contemplated by India’s extradition assurance to Portugal.
Salem’s extradition from Portugal was obtained after the Government of India gave a solemn sovereign assurance on 17 December 2002 that he would neither face the death penalty nor imprisonment exceeding 25 years. Portugal permitted extradition on 29 March 2003, and he was ultimately extradited to India in November 2005.
Following extradition, Salem was convicted in two proceedings. In TADA Case No. 1 of 2006, he was sentenced on 25 February 2015 to rigorous imprisonment for life. In BBC Case No. 1 of 1993, he was again sentenced on 7 September 2017 to rigorous life imprisonment, with the latter sentence directed to run concurrently with the earlier sentence.
In its earlier judgment dated 11 July 2022, the Supreme Court fixed 12 October 2005 as the commencement date for computing the 25-year period. It further held that, upon completion of 25 years, the Central Government would have to act consistently with India’s sovereign assurance by considering the constitutional/statutory mechanisms for Salem’s release.
The Bombay High Court rejected Salem’s subsequent plea for immediate release, holding that he had not yet completed the stipulated 25-year period and that his continued detention was therefore not illegal.
Issues
The Supreme Court essentially considered:
- Whether Salem had already completed the stipulated 25 years of incarceration by combining undertrial and post-conviction custody.
- Whether periods of incarceration attributable to two concurrent sentences could be counted separately where they overlapped.
- Whether Salem’s jail-earned remission of 3 years, 6 months and 2 days could be added to actual incarceration so as to advance completion of the 25-year period.
- Whether India’s sovereign assurance to Portugal effectively converted Salem’s life sentence into a fixed sentence of 25 years.
- Whether the Bombay High Court was correct in refusing habeas corpus and immediate release.
Appellant’s Arguments
Salem contended that as of 30 June 2026, he had completed 26 years, 9 months and 22 days of incarceration.
His calculation comprised three components: undertrial custody from 11 November 2005 until 7 September 2017, calculated as 11 years, 9 months and 26 days; post-conviction custody from 25 February 2015 until 30 June 2026, calculated as another 11 years, 4 months and 4 days; and jail-earned remission of 3 years, 6 months and 2 days.
For remission, Salem relied upon prison records and the affidavit of the Additional Director General of Police and Inspector General of Prisons. He also relied upon Yovehel v. State of Maharashtra, Union of India v. V. Sriharan @ Murugan and Swamy Shraddananda v. State of Karnataka, arguing that earned remission should be reckoned while determining the period of incarceration.
Respondent’s Position
The State maintained that Salem’s computation impermissibly gave him a two-fold benefit by counting overlapping periods of incarceration more than once.
The prison authorities’ affidavit also contained a calculation treating his sentence as one of life imprisonment, rather than a fixed 25-year sentence. The State’s prison calculation showed a probable release date of 31 January 2046 under the applicable 50-year category after accounting for set-off and remission, although the Supreme Court’s separate extradition-assurance ruling governs the 25-year sovereign commitment.
Analysis of the Law
Concurrent Sentences Cannot Produce Double Counting
The Court found a fundamental defect in Salem’s calculation.
For undertrial custody, Salem counted the period up to the later conviction on 7 September 2017. But for post-conviction incarceration, he began counting from the earlier conviction on 25 February 2015.
Consequently, the period between 25 February 2015 and 7 September 2017 was being counted twice.
The Court held that where sentences run concurrently, they operate simultaneously. The same period of physical incarceration cannot therefore be notionally counted twice merely because it relates to two different proceedings.
Salem could not characterise the same period as undertrial detention for one sentence and simultaneously as post-conviction detention for another to obtain a double benefit.
Sovereign Assurance Remains Binding
Importantly, the Supreme Court did not dilute India’s commitment to Portugal.
It reaffirmed that Salem is entitled to the benefit of the sovereign assurance that he would not remain imprisoned beyond the stipulated 25-year period. The dispute was instead about how those 25 years must legally be calculated.
The assurance fixes an outer limit. It does not permit an artificial or accelerated calculation by double-counting periods of custody.
25-Year Assurance Did Not Convert Life Sentence
This distinction became central to the remission issue.
The Supreme Court emphasised that its 2022 judgment had not converted Salem’s two life sentences into a fixed 25-year sentence.
The judicial sentence remained imprisonment for life. The 25-year stipulation arose independently from the sovereign assurance made by India’s Executive to Portugal.
The Court explained this through the constitutional principle of separation of powers. The TADA Court’s sentence represented the exercise of judicial power, whereas the extradition assurance was an executive commitment. The Executive’s commitment could govern remission, commutation or release without retrospectively altering the judicial sentence itself.
Precedent Analysis
Salem relied principally upon Yovehel v. State of Maharashtra, V. Sriharan @ Murugan and Swamy Shraddananda to support the proposition that jail-earned remission should be credited towards the period of imprisonment.
The Supreme Court distinguished all three.
None involved a sovereign assurance given during extradition proceedings that the prisoner would not remain incarcerated beyond a particular period. The Court therefore held that ordinary principles concerning remission could not mechanically be transplanted into Salem’s unique extradition framework.
The Court added an important proposition concerning precedent: the ratio decidendi of a judgment must be understood against its material facts and legal context. A precedent cannot be applied divorced from the factual and statutory setting in which it was rendered.
Court’s Reasoning
The Court rejected Salem’s claim for immediate release on two independent grounds.
First, his calculation impermissibly double-counted the same incarceration between February 2015 and September 2017.
Second, his jail-earned remission could not be notionally added to actual incarceration to accelerate the 25-year extradition period.
The reason was that Salem continues to serve life imprisonment. The Portugal assurance does not transform that sentence into a 25-year fixed-term sentence. It merely creates a binding limitation upon how long India may ultimately keep him imprisoned pursuant to its international commitment.
Accordingly, remission earned in prison could not be proportionately applied to shorten the specially stipulated 25-year period. Doing so would confer an additional benefit beyond that flowing from the sovereign assurance itself.
The operative date remained 12 October 2005, as fixed by the Supreme Court in 2022. On the legally permissible computation, Salem had not completed 25 years when he sought release.
Conclusion
The Supreme Court found no infirmity in the Bombay High Court’s judgment refusing Salem’s release and upheld it.
The appeal was consequently dismissed in limine.
The decision nevertheless preserves the earlier binding position that once the stipulated 25-year period calculated from 12 October 2005 is completed, the Central Government must act in accordance with India’s sovereign commitment to Portugal through the appropriate constitutional or statutory mechanism. The 2022 judgment had contemplated action under Article 72 of the Constitution or Sections 432 and 433 CrPC within the prescribed timeframe.
Case Details
Case: Abu Salem Abdul Qayoom Ansari v. State of Maharashtra & Ors.
Court: Supreme Court of India
Citation: 2026 INSC 982
Case Number: Criminal Appeal arising out of SLP (Crl.) No. 12871 of 2026
Bench: Justice Vikram Nath and Justice Sandeep Mehta
Date: 10 September 2026
Impugned Judgment: Bombay High Court, Writ Petition No. 1586 of 2025, dated 15 April 2026
Result: Appeal dismissed in limine; immediate release refused. The Court held that overlapping custody cannot be counted twice and jail-earned remission cannot accelerate the 25-year period arising from India’s sovereign extradition assurance.
