‘Indian courts not bound by assurance on Abu Salem’

In its 18-page affidavit submitted on Sunday, the agency maintained that the question of releasing Salem should come up only after the extradited convict has spent 25 years behind bars while choosing not to spell out clearly if Salem would be entitled to release after 25 years in the wake of the then deputy PM’s assurance.

An Indian court is not bound by the assurance given in 2002 by the then deputy prime minister and home minister LK Advani to the courts in Portugal that gangster Abu Salem would neither be sent to the gallows nor imprisoned beyond 25 years after his extradition to India, the Central Bureau of Investigation (CBI) has told the Supreme Court.

Salem is currently serving life terms in two separate cases relating to the 1993 Mumbai serial bomb blasts and the murder of a businessman. (PTI file photo)

Responding to a court query as to whether the Union government intends to honour its sovereign assurance given to the Portugese courts, the CBI has drawn a distinction between the court’s power to deliver a punishment and the role of the government in the execution of that punishment.

The court was hearing a challenge by Salem to the two life sentences he has been handed; CBI’s affidavit makes the fine point that the assurance was on execution and imprisonment beyond 25 years, not whether an Indian court would sentence Salem to a period exceeding 25 years.

In its 18-page affidavit submitted on Sunday, the agency maintained that the question of releasing Salem should come up only after the extradited convict has spent 25 years behind bars while choosing not to spell out clearly if Salem would be entitled to release after 25 years in the wake of the then deputy PM’s assurance. Salem was extradited to India in November 2005.

“The solemn sovereign assurance would be applicable in the matter of execution of sentence and not in the matter of awarding or application of appropriate sentence according to the law…that the argument of the appellant that imprisonment term cannot extend beyond 25 years as per the assurance given is legally unsustainable,” stated the affidavit, which will be examined by a bench led by justice Sanjay Kishan Kaul on Tuesday.

The affidavit added: “The solemn sovereign assurance given by the then deputy Prime Minister of India cannot be construed as a Guarantee/undertaking to assure that no court in India would award the punishment provided by Indian laws in force to accused Abu Salem…the life sentence awarded by the trial court is legally correct and needs no interference.”

On February 2, the bench had asked the Centre and the prosecuting agencies to come clear on the applicability of the solemn sovereign assurance given by the then deputy PM to Portugal, pointing out that Salem’s chief contention pertained to the assurances given by Indian authorities before the courts in Portugal in 2002 and 2005 that he will not get death penalty or a jail term beyond 25 years.

Salem is currently serving life terms in two separate cases relating to the 1993 Mumbai serial bomb blasts and the murder of a businessman. He has argued before the top court that handing out an imprisonment beyond 25 years to him was in breach of the assurance given by the then deputy PM on behalf of the Centre. Salem was extradited from Portugal in 2005 after Advani’s assurance to the Portuguese courts during the first NDA regime when India wanted to extradite Salem to make him stand trial in eight criminal cases.

Opposing Salem’s contentions, the CBI has maintained through its affidavit that an extradition treaty cannot override the criminal laws of the land and therefore, courts cannot be fastened with the terms of the treaty.

The agency relied on the Mumbai trial court’s judgment in 2015, which sentenced Salem to life imprisonment noting that awarding of punishment falls squarely within the domain of judiciary while it is open for the Union government to exercise their power in the matter of execution of punishment in terms of the sovereign assurance given to Portugal. It highlighted that Salem was convicted of murder and terrorist acts, and the life imprisonment was the minimum sentence permitted by law.

CBI also countered a submission by Salem’s lawyers, advocates Rishi Malhotra and S Hari Haran, who have pressed that the gangster’s period of custody should be counted from 2002 when he was detained in Portugal in the wake of a red corner notice issued by the Mumbai TADA court.

It claimed that Salem was arrested in Portugal for a crime he committed there and was sentenced to undergo imprisonment for four years and six months. A court in Portugal granted conditional release to Salem in October 2005 for the remaining period of the sentence, following which his custody was handed over to the Indian authorities in November 2005.

“Abu Salem was already undergoing the sentence awarded by the Court of Lisbon and, therefore, he is not entitled to pray before this court for set off for that period of detention against the sentence that is awarded to him in this trial,” said the CBI.

It added Salem is not entitled for a set-off from the date of the order of his extradition in March 2003 but that his period of custody should be counted from the date he was handed over to the Indian authorities in 2005.

Stating that interference of the Supreme Court is “uncalled for,” CBI urged the top court to dismiss Salem’s plea with a heavy fine.

During the last hearing on February 2, state of Maharashtra, which is also a prosecuting agency in some of the cases, told the court that “by and large”, the state would adopt the stand taken by the Centre in the matter.

On March 12, 1993, Mumbai witnessed an unprecedented attack with a series of 12 bomb explosions which took place one after another in about two hours. The attacks left 257 dead and more than 700 persons seriously injured.

Salem, a member of the Dawood Ibrahim’s cartel who was considered as one of the key conspirators in the serial blast cases, was extradited from Portugal on November 11, 2005, after a prolonged legal battle.

In February 2015, a special TADA court awarded Salem life imprisonment for murdering Mumbai-based builder Pradeep Jain in 1995, along with his driver Mehndi Hassan. The TADA court rejected Salem’s argument that he cannot be given a jail term exceeding 25 years in view of the extradition treaty. The trial court held that it has to apply the law, while the government can exercise its power in the matter of “execution of the sentence awarded by this court”. The court clarified that the “solemn sovereign assurance” between India and Portugal cannot be construed as any amendment in existing Indian legal provisions.

In June 2017, Salem was again convicted and awarded a life sentence for his role in the 1993 serial blasts case. He was found guilty of transporting weapons from Gujarat to Mumbai for use in the serial bombings.

In 2011, the Portuguese high court terminated the extradition of Salem to India on ground that the extradition terms agreed to between the two nations have not been observed. The Supreme Court of Portugal upheld the decision in 2012 which was later affirmed by the Portuguese Constitutional Court as well. At the same time, the Constitutional Court of Portugal held that Portuguese law did not provide for any specific consequence for violation of the Principle of Specialty over charges.

In 2013, the Supreme Court of India held Salem’s extradition to be “valid and effective”, underlining that the Portugal Constitutional Court verdict was not binding on it. The court also allowed CBI to withdraw some serious charges against Salem under which he could be handed out death penalty.

Salem was in 2015 and 2017 sentenced to life imprisonment in two cases. His lawyers now argue that fresh causes of action arose after his punishment and therefore, the 2013 verdict by the Supreme Court prior to his sentencing cannot be an impediment in arguing contravention of the extradition terms.