NEW DELHI: The Supreme Court was told by the Center on Thursday that the judiciary is independent of the solemn sovereign assurance given to the Portuguese government during the 2002 extradition of gangster Abu Salem and that it belongs to the executive of take a call about it at an appropriate stage.
A bench of judges Sanjay Kishan Kaul and MM Sundresh reserved their verdict on a plea by mobster Abu Salem, challenging his life imprisonment in the 1993 Mumbai blasts case on the grounds that his sentence could not exceed 25 years as the government is bound by the solemn assurance given to the Portuguese government for his extradition.
Additional Solicitor General KM Nataraj, representing the Centre, said that “the government is bound by the solemn sovereign assurance given by the then Deputy Prime Minister, LK Advani, to the Portuguese government and that it will will comply at the appropriate time”.
He said the court is not bound by the solemn assurance and can make orders according to law.
“The Solemn Sovereign Assurance cannot be imposed on the Judiciary. The Executive will act accordingly at the appropriate time. We are bound by the Solemn Sovereign Assurance in this regard. The Judiciary is independent, it can proceed according to law “, did he declare.
The bench told Nataraj that the arguments put forward by lawyer Rishi Malhotra, representing Salem, are that the court should decide on the solemn assurance and reduce his life sentence to 25 years or order the government to take a appeal on the solemn assurance given during his extradition.
The higher court said the second question was a period of compensation because the argument put forward to the bar is that he was arrested in Portugal following the red corner notice issued on the orders of the court here and that he was detained there until his extradition to India.
Nataraj said he was in custody in another case related to a fake passport.
The bench said, “Let’s assume there were no other cases. If he was detained under this case in another country, then will this period not be counted in his sentence? Let’s take another example if Vijay Mallaya is arrested in England and detained there and when he returns and is sentenced, then the time spent in detention in England will not count.”
Nataraj said that prior periods spent in detention in a case cannot be counted and there are judgments to that effect.
The bench then asked Nataraj what the starting point of custody was, to which he replied that it would be at the time of his arrest following his extradition from Portugal.
Nataraj said there are also judgments that a life sentence means whole life and there can be no remission.
He said that in this case article 428 CrpC (time of detention suffered by the accused to be charged against the prison sentence) is not invoked because it is a life sentence and falls of article 433 (commutation of sentence by state authority).
Initially, Malhotra said that on December 17, 2002, the then Deputy Prime Minister approached the Ministry of Foreign Affairs of Portugal regarding a formal request for extradition which met the requirements of Portuguese law.
He said the said assurance was in clear terms that if extradited by Portugal to stand trial in India, Salem would not face the death penalty or imprisonment for more than 25 years.
“The said solemn assurance dated 17th December 2002 was further reiterated as further assurance by the Ambassador of India to the Government of Portugal on 25th May 2003, with further assurance that the appellant will not be prosecuted for offenses other than those for which his extradition was requested,” he said.
He argued that even the contested judgment of the TADA court dated September 7, 2017 clearly ruled that the Center will ensure that when carrying out the sentence or sentence imposed by the court in India, it exercises its power and reduce the sentence in accordance and to the extent of the assurance given to the Portuguese government.
“The TADA Court further held that the Union of India in its domain and wisdom shall be free to exercise its power in the execution of the sentence pronounced by this Court, in accordance with the solemn sovereign assurance given by the then Deputy Prime Minister,” he said.
Malhotra urged the court to read the life sentence imposed on Salem at 25 years according to the solemn sovereign assurance given by the government and not leave it to the executive to take an appeal at the appropriate time .
On April 21, the high court strongly objected to the “content” of an affidavit filed by the Center on a Salem plea, and said it was an “attempt to lecture the judicial power”.
On February 25, 2015, the TADA Special Court sentenced Salem to life imprisonment in another case for the murder of Mumbai-based builder Pradeep Jain in 1995, along with his driver Mehndi Hassan.
Salem, also convicted in the 1993 Mumbai serial explosions, was extradited from Portugal on November 11, 2005, after a long legal battle.
In June 2017, Salem was convicted and later sentenced to life imprisonment for his role in the 1993 Mumbai serial bombing case.
On March 12, 1993, the commercial capital of the country witnessed an unprecedented attack with a series of 12 bomb explosions which followed each other in approximately two hours.
The despicable attacks left 257 dead, 713 seriously injured, and destroyed properties worth millions of dollars.