The curative petition of Yusuf Mohsin Nulwala, a convict in the 1993 Mumbai blast case, will be heard by the Supreme Court tomorrow by the bench comprising the three senior-most Judges, namely, the CJI, TS Thakur, and justices Anil R Dave and JS Khehar beween 1:40 and 1:45 pm in their chambers tomorrow.

They may well direct the registry to list it, so that it can be heard in the open court at the earliest.

Nulwala first moved the Supreme Court with his writ petition (WP (CRL) 150/2015) seeking a reduction in his jail term of five to three years.

His plea was that he was wrongly sentenced to five years imprisonment for possessing a prohibited automatic AK-56 assault rifle while he was shown in possession of a non-prohibited semi-automatic AK-56.

A prohibited weapon is defined in Section 2(1)(i) of the Arms Act as a firearm so designed or adapted that, if pressure is applied to the trigger, missiles continue to be discharged until pressure is removed from the trigger or the magazine containing the missiles is empty.

Nulwala was convicted under sections 3 and 7 read with Sections 25 (1-A) and (1-B) of the Arms Act, 1959.

The bench of justices Ranjan Gogoi and Prafulla C Pant asked his counsel, Harish Salve, to file a curative petition, raising this new ground. In the meantime, the bench promised to keep his writ petition pending.

History

Nulwala’s appeal petition was dismissed along with that of his associate, actor Sanjay Dutt’s appeal petition on 21 March, 2013 in Sanjay Dutt vs the State of Maharashtra. Both of them were sentenced to five years rigorous imprisonment.

Both Nulwala’s and Sanjay Dutt’s review petitions were dismissed on 10 May, 2013.

While Sanjay Dutt’s curative petition was dismissed on 23 July, 2013, Nulwala did not file a curative petition and had kept this options open.

In any case Dutt will be released next month, by 7 March 2016, for completing his five-year sentence.

But Nulwala’s petition now assumes significance because whether the Supreme Court could consider a new ground while considering the curative petition is a question which remains open.

Exploring curative grounds

In the Yakub Memon case, while considering his writ petition against his death warrant, Justice Kurian Joseph had suggested in the court that a curative petition could invoke a new ground, not raised earlier.

However, the Attorney General, Mukul Rohatgi disagreed with his view saying that it could raise only two grounds, namely, denial of natural justice and an allegation of bias against one of the Judges who heard the appeal petition.

Justice Dipak Misra’s three-Judge Bench, which dismissed Yakub Memon’s two writ petitions on 29 July and 30 did not find it necessary to go into this issue, as it found that the dismissal of his curative petition on 21 July was valid.

The Supreme Court in State through CBI, Delhi vs. Gian Singh held that it is a fundamental right of every person that he should not be subjected to greater penalty than what the law prescribes, and no ex post facto legislation is permissible for escalating the severity of the punishment.

But if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence.

Similar reasoning is applicable to a judicial verdict, which finds an earlier verdict as having imposed a disproportionate sentence on a convict.

The Supreme Court, having found that Sanjay Dutt had in his possession a prohibited weapon without a licence, awarded him the minimum imprisonment which was prescribed under law.

Different treatment?

As both Sanjay Dutt and Nulwala were found in possession of the same weapon, considered prohibited by the court earlier, it was being asked in legal circles, whether Sanjay Dutt had not raised a similar ground in his curative petition earlier, and if so, why the bench dismissed it.

Yusuf Mohsin Nulwalla was accused No.118 in the 1993 Bombay blasts case, while his most famous co-convict, Sanjay Dutt, was accused No.117.

The TADA court had held that the prosecution had failed to prove that the arms in possession of Dutt were from the same alleged consignment that was used in the Bombay blasts. Therefore, the only offences that remained were those under the Arms Act and both Dutt and Yusuf were convicted and sentenced under it.

Remaining sections

If the charge against Yusuf under Section 7 of the Arms Act fails, Section 25(1A) also cannot be invoked against him. This provision says that whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of Section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to 10 years and shall also be liable to a fine.

The only provision which would remain, then, are Sections 3 and 25 (1B)(a). Under Section 25(1B)(a), whoever acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3 shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to a fine.

This section carries a proviso to the effect that the court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year.

Section 3 refers to a minor offence of acquiring, having in possession or carrying of any firearm or ammunition unless one holds a license issued in accordance with the Arms Act and the rules made thereunder.

As both Sanjay Dutt and Nulwalla have already completed three years imprisonment, they would be entitled to be released.

While Nulwalla is yet to exhaust his curative remedy, Dutt’s curative petition also stood dismissed by the Supreme Court on 23 July, 2013. Therefore, he has to file a fresh writ petition to claim this relief. It is difficult to say whether the court would grant this remedy to a convict who has already exhausted all his legal options.

And what about Naz

Even as the same bench which heard the Naz’s section 377 curative petition on 2 February hears Nulwalla’s curative petition tomorrow, it is likely that the judges may wonder whether its outcome has any relevance to the Naz petition which has been referred to the yet-to-be-notified constitution bench.

With the reference order in the Naz case yet to be uploaded, and notices not having been issued to the parties, the Naz curative petitions have not so far been admitted as such.

According to the CJI, the constitution bench which will hear the matter will also decide on the issuing of notices.

Hopefully, the same bench will also determine the scope of the curative petitions, and whether they could raise new grounds, apart from denial of natural justice and allegation of bias on the part of the Judges, as laid down in /Hurra/ in 2002.

The outcome in the Nulwalla’s curative petition will therefore be watched with keen interest not just by Dutt and his fans.