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SCOI Report: SC keeps Mumbai blast convict's writ pending on plea of Salve, raises curative hopes

Yusuf Mohsin Nulwala, a convict in the 1993 Mumbai blast case, on Friday 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 Arms Act, 1959 Arms Act.

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.

Nulwala’s appeal petition was dismissed along with that of his associate, actor Sanjay Dutt’s appeal petition on March 21, 2013 in Sanhay 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 May 10, 2013.

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

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

In the recent 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 July 29 and 30 did not find it necessary to go into this issue, as it found that the dismissal of his curative petition on July 21 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.

As both Sanjay Dutt and Nulwala were found in possession of the same weapon, considered prohibited by the court earlier, it is 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.

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