Salem entitled to freedom in Nov 2030, govt tells SC

After serving 25 years in prison, it is understood, Salem’s release will have to be ratified by the President on a recommendation to be made by the central government, based on the 2002 assurance to the Portugal government.

 Gangster and 1993 Mumbai serial bomb blasts case convict Abu Salem is entitled to being released in November 2030 after serving 25 years in prison, as promised by then deputy prime minister and home minister LK Advani to the Portugal government in 2002, Union home secretary Ajay Kumar Bhalla told the Supreme Court through an affidavit on Monday.

Abu Salem (PTI)

The top official in the Union ministry of home affairs (MHA) came out with a categorical response following a cautionary note by a bench, led by justice Sanjay Kishan Kaul, that a reluctance in honouring a diplomatic assurance may hamper extradition of other fugitives being pursued by the Indian government from other countries.

Submitting a five-page affidavit on Monday, Bhalla assured the bench, which also comprises justice MM Sundresh, that the Indian government is bound by its executive assurance that Abu Salem would neither be sent to the gallows nor imprisoned beyond 25 years after his extradition to India from Portugal.

“It is respectfully submitted that the Government of India is bound by the assurance dated December 17, 2002. The period of 25 years, which is mentioned in the assurance, will be abided by the Union of India at an appropriate time subject to the remedies which may be available,” stated the affidavit.

It added: “The compliance of the assurances will be done at an appropriate time and the Government of India will abide by the assurances in accordance with the law and subject to the remedies as may be available at that stage.”

After serving 25 years in prison, it is understood, Salem’s release will have to be ratified by the President on a recommendation to be made by the central government, based on the 2002 assurance to the Portugal government.

While the assurance still holds water, Bhalla pointed out, Salem is yet to complete 25 years of incarceration and that the period will get over only on November 10, 2030. Therefore, the home secretary added, Salem cannot be permitted to raise arguments based on the said assurance in his appeal against conviction and life term in the Mumbai serial bomb blast case.

“The contention of petitioner (Salem) about non-compliance of assurance is premature and based on hypothetical surmises and can never be raised in present proceedings...The attempt of the convict-appellant to club hat assurance with merits of the present case is legally untenable,” maintained Bhalla.

The home secretary also emphasised that a diplomatic assurance to a foreign country can only bind the executive but the judiciary is independent in deciding all cases in accordance with the applicable laws without in any way being bound by any position taken by the executive.

The Mumbai serial blasts, he said, was “undoubtedly a dastardly act conducted with pre-meditation in which the convict-appellant played a very active role” and thus, the trial court handed out life sentence. Bhalla said that the Supreme Court should rather decide Salem’s appeal against his conviction in the blast case on merit, snubbing his attempts to argue a point which is immaterial to deciding the case at hand.

The bench, which had on April 12 gave Bhalla “the last opportunity” to file his response, will consider this affidavit on April 21.

On March 8, the court pulled up the central government for being “evasive” while demanding a personal affidavit from Bhalla to clarify the Centre’s stand regarding Salem’s length of incarceration.

The court had then rejected the affidavit filed by the Central Bureau of Investigation (CBI) which emphasised that an Indian court is not bound by Advani’s assurance that Salem would neither be sent to the gallows nor imprisoned beyond 25 years after his extradition to India, pointing out it is for the Union government to come clear on the diplomatic assurance given to Portugal.

The apex court underscored that the Centre’s stand is crucial not only in terms of its extradition treaty in the case of Salem but also in connection to other cases where the Indian government seeks to bring back fugitives from foreign lands.

The court was hearing a challenge by Salem to two life sentences he has been handed. On February 2, the bench asked the Centre and the prosecuting agencies to come clear on the applicability of the solemn sovereign assurance given by then 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.

Filed in the first week of March, the CBI chose to make 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. The agency further asserted 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 added 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 Advani’s assurance. Salem was extradited to India in November 2005.

Disputing the CBI’s affidavit, Salem’s lawyers, advocates Rishi Malhotra and S Hari Haran, argued on March 8 that the agency’s affidavit suggests a U-turn from the assurance given by the Union government to Portugal on limiting the jail term to 25 years.

To be sure, the bench then asked the Union home secretary to file his personal affidavit to state clearly whether the assurance given by Advani on behalf of the government is to be abided or not.

Salem is currently serving life terms in two separate cases relating to the 1993 Mumbai serial bomb blasts and the murder of Mumbai businessman Pradeep Jain in 1995.

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 and following 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.

After his extradition, in February 2015, a special TADA court awarded Salem life imprisonment for murdering Mumbai-based builder 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”.

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, which left 257 dead and more than 700 people seriously injured.

Salem 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 Prime Minister on behalf of the Centre.