NEW DELHI: Supreme Court has ruled that if a person is convicted in two cases and sentenced separately, the period of imprisonment undergone as an undertrial can be offset against only one of the sentences and not both even when the trial court had ordered the two sentences to run concurrently.The ruling was given by a bench of Justices Vikram Nath and Sandeep Mehta while detecting that gangster Abu Salem, who was extradited from Portugal in Nov 2005 on a solemn assurance by Indian govt that he would not be awarded death penalty or a jail term of more than 25 years, had computed his undertrial incarceration period twice to seek release from jail on the ground that he has already spent 25 years in jail, even though he was awarded life sentences in two terror cases in 2015 and 2017.Justice Nath said, “The fact that 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 be notionally counted twice for the purpose of determining completion of the sentence.”“The appellant (Salem) 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,” Justice Nath said.SC said the sovereign commitment given to Portugal govt that no sentence extending beyond 25 years would be imposed upon Salem has no bearing on the judicial determination of Salem’s guilt in two terror cases and award of life sentences.“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,” it said.
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SC referred to the govt affidavit which had categorised Salem among prisoners who have been sentenced to 50 years of imprisonment. After reducing the set-off and remission periods, it had informed SC that the probable date of Salem’s release would be Jan 31, 2046, that is, after another 20 years.Dismissing Salem’s appeal, SC said the calculations carried out by govt indicate that he continues to serve life sentence and “the stipulation that he cannot be detained beyond 25 years is a consequence of the sovereign assurance extended by Union govt to Portugal’s govt. It does not convert sentence of life imprisonment into a fixed-term sentence of 25 years”.
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