SC gives home secretary ‘last chance’ to clear stand on Abu Salem’s release | Latest News India - Hindustan Times
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SC gives home secretary ‘last chance’ to clear stand on Abu Salem’s release

By, New Delhi
Apr 13, 2022 06:15 AM IST

A bench of justices Sanjay Kishan Kaul and MM Sundresh gave Bhalla “the last opportunity” to file his response by April 18 after recording that the affidavit could not be filed due to some “communication gap” on part of the government.

The Supreme Court on Tuesday expressed its displeasure over the failure of Union home secretary Ajay Kumar Bhalla in submitting a personal affidavit on whether gangster Abu Salem will be released after serving 25 years in prison, as promised in 2002 by then deputy prime minister and home minister LK Advani to the courts in Portugal.

Abu 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. (HT file)
Abu 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. (HT file)

A bench of justices Sanjay Kishan Kaul and MM Sundresh gave Bhalla “the last opportunity” to file his response by April 18 after recording that the affidavit could not be filed due to some “communication gap” on part of the government.

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Solicitor general (S-G) Tushar Mehta showed up for the Centre to make a request for another opportunity to Bhalla after the court enquired from the government’s counsel whether the home secretary would prefer making an oral statement if he cannot file an affidavit.

“Now that the affidavit has not been filed, ask him if he would want to make an oral statement,” the bench had told a counsel appearing for the government when the case was called out initially. The question entailed the personal appearance of Bhalla before the court due to his failure to file the required affidavit.

Later, S-G Mehta appeared to seek one last chance for Bhalla to abide by the court’s last order on March 8. “There was a communication gap on our part. We are requesting for another opportunity,” he submitted.

At this, the bench recorded in its order: “Learned S-G submits that there was a communication gap on their part and that the affidavit of the Union home secretary would be filed on or before April 18 as the last opportunity. At the request of the S-G, the matter to be taken up next 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 PM on behalf of the Centre.

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