SC: Govt bound to not extend Abu Salem jail term
Abu Salem, who was extradited to India on November 11, 2005, was tried by the courts in connection with the 1993 Mumbai serial blasts and the murder of businessman Pradeep Jain in 1995. In both cases, he was sentenced to life imprisonment.
The Supreme Court on Monday said that Centre was bound to release gangster Abu Salem in 2030, on completion of his 25 years sentence in India, to honour a solemn assurance given by the Indian government to a Portuguese court in December 2002.
Salem, who was extradited to India on November 11, 2005, was tried by the courts in connection with the 1993 Mumbai serial blasts and the murder of businessman Pradeep Jain in 1995. In both cases, he was sentenced to life imprisonment.
At the time of his extradition proceedings in 2002, then deputy prime minister and home minister LK Advani had given solemn assurance to the Portugal government that Salem would neither be hanged nor would be sentenced to a jail term exceeding 25 years.
The issue, however, got complicated in recent years, with the Union government and the Central Bureau of Investigation trying 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.
While the CBI maintained that a diplomatic assurance by the Indian court could not bind the courts from handing down suitable punishment to Salem for his crimes, Union home secretary Ajay Bhalla, in his affidavit filed in April, asked the top court to decide Salem’s appeal against his conviction in the 1993 Mumbai serial blasts case on merits while leaving the issue of diplomatic assurance to the government to consider at an appropriate stage.
After his extradition from Portugal in November 2005, Salem was handed down life imprisonment in the Mumbai blasts case and a murder case, which he challenged in the Supreme Court as a violation of the assurance given by the Indian government to Portugal.
Making Salem’s release timebound, the top court held that within a month of the expiry of his 25-year incarceration, it will be open to the Centre to either recommend his release to the President of India for exercise of pardon powers under Article 72 of the Constitution, or act under the statutory remission powers available with the Centre to either suspend or remit the sentence of a convict (Section 432), or commute it (Section 433) under the Code of Criminal Procedure (CrPC).
The bench of justices Sanjay Kishan Kaul and MM Sundresh said, “On the appellant (Abu Salem) completing 25 years of sentence, the central government is bound to advice the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment as well as the principle based on comity of courts.”
The Centre in April accepted in Court that it was bound by the undertaking given to Portugal court that Salem would not be visited by death penalty or imprisonment for a term beyond 25 years. However, it added that this issue would arise on completion of 25 years as the issue was “premature” at the present stage.
The bench said, “The corresponding principle of comity of courts has to be observed such that the Government of India having given the solemn assurance, and having accepted the same before us, is bound to act in terms of the aforesaid. We are, thus, taking a call on this issue now and do not want to leave it to any uncertainty in future.”
Salem’s lawyer Rishi Malhotra argued that once India agreed to be bound by the undertaking, the top court should restrict the sentence to 25 years instead of life imprisonment. He cited the Union of India v Sriharan (2016) judgment by the top court which said that only constitutional courts have power to modify a sentence.
The court rejected this argument. “Looking into the grievousness of the offence in which the appellant was involved, there is no question for this Court exercising any special privileges to commute or restrict the period of sentence of the appellant,” it said.
The court stressed that, based on the principle of separation of powers and independence of judiciary, the Centre rightly stated in its undertaking to Portugal that its assurance cannot bind courts in India from passing a lesser punishment. “The courts must proceed in accordance with law and impose the sentence as the law of the land requires, while simultaneously the executive is bound to comply with its international obligations under the Extradition Act as also on the principle of comity of courts, which forms the basis of the extradition,” the bench added.
Malhotra filed an alternate prayer to calculate Salem’s period of detention from September 18, 2002 when he was arrested in Portugal for entering on a fake identity passport issued by Pakistan. The Centre objected to this request claiming that the period of 25 years is to be counted from November 11, 2005 -- the date of his extradition.
The bench noted that Salem’s incarceration on being sentenced for having a fake passport had nothing to do with the proceedings against him in India. The sentence under this offence came to an end on October 12, 2005 when he was granted a conditional release and came to be re-arrested under the Red Corner notice issued by Interpol on India’s request. The court held that the period of 25 years will be counted from this date.
The bench also made an indirect reference to Pakistan’s hand behind the 1993 blasts. “In order to evade the penal consequences of his actions, the appellant left Mumbai and later entered Portugal under an assumed name on a Pakistani passport, which reflects from where the conspiracy and support may have emanated,” it said.
Salem, a member of underworld don Dawood Ibrahim’s syndicate was sentenced to life imprisonment in February 2015 by a special TADA court for killing Mumbai-based builder Pradeep Jain in 1995. The TADA court rejected Salem’s argument that he cannot be given a jail term exceeding 25 years in view of the extradition clause.
Later, in June 2017, Salem was convicted and awarded a life sentence for his role in the 1993 Mumbai 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.
Going into the criminal record of Salem, the bench said, “Abu Salem Abdul Kayyum Ansari has a history – and not a palatable one at all. He has been a part of the crime syndicate as is obvious from the facts of the two criminal appeals before us.”
All that the court wished to examine was whether India would honour its undertaking to Portugal as the solemn assurance given on December 17,2002 was accepted by the Court of Appeal, Lisbon and Supreme Court of Portugal on the promise that even if the judiciary sentenced Salem to a term beyond 25 years, the constitutional power under Article 72 and statutory power under Sections 432 and 433 of CrPC will be used to bring the sentence in accordance with the undertaking.
“What the government of India sought to do was to bring the legal process fully in conformity with the extradition order of Portugal albeit belatedly and the consequences of the termination of the appellant’s extradition attained finality. This showed that the government of India was conscious of its sovereign assurance and sought to do everything to abide by its assurance at that stage,” the court said.