Abu Salem must be released after 25 years in accordance with extradition treaty with Portugal: Supreme Court

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The Supreme Court ruled on Monday that the life sentence imposed on Abu Salem in the 1993 Bombay blasts case should be remitted after 25 years from the date of his extradition to India , as the sovereign pledge made by the Government of India to the Republic of Portugal at the time of Salem’s extradition to India was that his sentence shall not exceed 25 years.

“On the appellant serving 25 years sentence, the central government is bound to advise the President of India for the exercise of powers under Article 72 of the Constitution of India and release the appellant in terms of national commitment as well as the principle on the comity of the courts”, the Court ordered.

A bench comprising Judges Sanjay Kishan Kaul and MM Sundresh ordered that the Union Government shall place the necessary papers before the President within one month after the completion of 25 years. The Chamber also observed that the central government may itself consider a surrender within the said period of one month at the end of 25 years, under Articles 432 and 433 of the CrPC.

As a result, the bench disposed of Salem’s appeal field.

The House refused to grant the petitioners’ request to cancel the period of detention in Portugal, as it was a different offense in another country and would have no impact on the detention with regard to the case under review.

The seat, however, said that the international treaty between the Government of India and the Republic of Portugal was not binding on Indian courts due to the principle of separation of powers. The courts must follow the law to impose the sentence. The bench also found that the appellant’s sentence was fair and proportionate given the gravity of the crime.

“Given the gravity of the offence, there is no question of the Court exercising any special power to commute his sentence,” the panel said.

Lawyer, Mr. Rishi Malhotra appearing on behalf of Abu Salem had pleaded with the judiciary to modify or reduce to 25 years the sentence of life imprisonment imposed by the Salem Magistrate’s Court, in line with the sovereign commitment that the Government of India had made to the Portuguese Republic almost a decade ago, while requesting his extradition.

Recognizing that the Union Government was bound by the sovereign assurance, Additional Attorney General, Mr. KM Nataraj had argued that the same could be done by the appropriate government in the exercise of power under Cr.PC s. 432 (power to suspend or remit sentences) or by the governor in the exercise of Article 161 of the Constitution of India or by the President pursuant to Article 72 of the Constitution. Even in its affidavit dated 18.04.2022, the Union Government had acknowledged that it was bound by the undertaking, but stressed that it would be complied with in accordance with the law and subject to the remedies available to the end of the 25-year term, as mentioned in the commitment. He urged the House to decide the appeal on the merits without going into the issue of sovereign assurance. On reading the said affidavit, the Chamber had expressed its dissatisfaction with its content.

By letter dated 17.12.2002, the then Deputy Prime Minister, MLK Advani, on behalf of the Government of India, assured the Portuguese Republic that it will exercise the powers conferred upon it by Indian laws to ensure that, if extradited by Portugal to stand trial in India, Salem would not be visited by the death penalty or imprisonment for more than 25 years. The relevant position of the sovereign enterprise reads as follows –

… The Government of India, therefore, on the basis of the provisions of the Constitution of India, the Indian Extradition Act 1962 and the Indian Code of Criminal Procedure 1973, solemnly assures the Government of Portugal that it will exercise its powers conferred by Indian laws to ensure that if extradited by Portugal to stand trial in India, Abu Salem Abdul Qayoom Ansari and Monica Bedi would not face the death penalty or imprisonment for more than 25 year.

By letter dated 25.05.2003, the Indian Ambassador in Lisbon further assured the Portuguese authorities that, in the event of extradition, Salem would not be prosecuted for offenses other than those for which he was requested to be extradited and would not be reconsidered. – extradited to a third country. After examination of the extradition request by the authorities, the Court of Appeal of Lisbon, the Supreme Court of Justice of Portugal and the Constitutional Court of Portugal, Salem’s extradition was granted in eight criminal cases (three of which were prosecuted by the CBI, two by Mumbai Police and three by Delhi Police). Salem was finally extradited on 10.11.2005.

Mr. Malhotra had also implored the Court to impute the period of his detention in Portugal (from 18.09.2002 until his extradition) to Salem’s prison sentence, under the terms of Article 428 Cr.PC, which categorically provides that the period of detention undergone during the investigation, investigation or trial of the same case would be counted against the length of the sentence.

He informed the Chamber that although Salem was detained in Portugal on 18.09.2002 for violation of passport law, his arrest was based on the red corner notice, which was issued following the issuance of the non-dischargeable warrant by the Special TADA Court, Mumbai in relation to the offenses for which he was ultimately convicted and sentenced to life imprisonment.

Arguments in this regard were fiercely opposed by Mr. Nataraj. He claimed that the period of detention in Portugal was for a completely different offense (violation of passport law) and that therefore the benefit of Article 428 CrPC would not allow Salem to compensate for the period of detention in Portugal by his sentence of life imprisonment. In the alternative, he maintains that the compensation would be inconsequential in the event of life imprisonment, which extends to the whole of life.

Background

On 12.03.1993, 12 bombs had exploded at different places in Mumbai killing nearly 257 people and injuring 713. Property worth INR 23 crore was damaged. The prosecution argued that the defendants hatched a plot in Dubai to avenge the demolition of the Babri Masjid. It has been claimed that Abu Salem transported and distributed arms and ammunition used in the Mumbai explosion in 1993.

In June 2017, Abu Salem and five others were found guilty of conspiracy and carrying out bombings across Mumbai in 1993, by special judge of the TADA court, GA Sanap. To be specific, Salem was convicted for offenses punishable under Sections 120B, 302, 307, 326, 427, 435, 436, 201 and 212 of the Indian Penal Code (IPC). Sections 3, 3(3), 5 and 6 of the Prompt Protection Against Terrorist and Disruptive Activities Act, and provisions of the Weapons Act, Explosive Substances Act and Damage Prevention Act to public goods. However, all of the defendants were acquitted of the charges under section 121 (making or attempting to make war, or encouraging to make war, against the government of India) of the IPC. Subsequently, in September 2017, Salem was among otherssentenced to life imprisonment.

[Case Title: Abu Salem Abdul Kayyum Ansari v. The State of Maharashtra Criminal Appeal No. 679 of 2015]

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