Police seek withdrawal of Abu Salem MCOCA charge

The plea for withdrawal of MCOCA charges against Salem was filed on February 27, barely two days before Thursday's scheduled hearing of Salem's petition for recall of the 2005 extradition order by the Portuguese Supreme Court.

Faced with a possible recall of the order for Abu Salem's extradition by the Portuguese Supreme Court, the Delhi Police have moved a city court seeking withdrawal of charges under Maharashtra Control of Organised Crimes Act (MCOCA) against the underworld don in connection with a 2002 extortion case.

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The plea for withdrawal of MCOCA charges against Salem was filed on February 27 in the court of Special Judge Ravinder Kaur, barely two days before Thursday's scheduled hearing of Salem's petition for recall of the 2005 extradition order by the Portuguese Supreme Court.

Additional Solicitor General Vikas Singh, who has been specially roped in this case as a Special Prosecutor, told the court on Wednesday that MCOCA did not figure in the Portuguese court's extradition order and, therefore, Salem could not be prosecuted under the special law.

Singh said that our own Supreme Court has held it in Daya Singh Lahoria's case that a person brought into India under an extradition decree cannot be tried in respect of an offence, which does not form part of the extradition decree. He pointed out that India had sought to include MCOCA in the extradition order but the Portuguese court specifically denied it. The special court will take up the application on March 7.

The withdrawal application was filed in a hurry to avoid any possible embarrassment as the Portuguese court could recall the extradition order in view of settled legal position that an extradited fugitive can not be prosecuted for any offence he/she has not been extradited for. The government is likely to tell the Portuguese court to wait till the Delhi special court decides its application.

The Delhi Police admitted that the move to withdraw MCOCA charges was aimed to ensure that “no adverse orders are passed against the Government of India by the Supreme Court of the country (Portugal) from where the accused has been extradited”.

Interestingly, the Delhi Police said MCOCA charges against Salem were being withdrawn "in the interest of justice".

The move follows the opinion given by the Ministry of Law and Justice to the Ministry of Home that MCOCA charges against Salem would not be legally tenable. The opinion sought at the behest of the CBI has already been forwarded by the MHA to the CBI, Delhi Police, Mumbai Police and Madhya Pradesh Police.

Interestingly, unlike Indian Penal Code, MCOCA does not contain provision dealing with substantive offences and perhaps the CBI could have persuaded the Portuguese court to include MCOCA in the extradition order.

Salem is facing MCOCA charges in connection with an extortion call made to Delhi Businessman Ashok Gupta in 2002. Greater Kailash Part-I police had booked him for demanding Rs 50 crore from

Gupta.

He was extradited to India in 2005 to face trial in eight cases, 12 years after he allegedly masterminded the terror blasts in Mumbai. He was brought to India along with his companion actress Monica Bedi.