Supreme Court reserves order on extension of gangster Abu Salem’s jail term

Salem is currently serving life terms in two separate cases, including the 1993 Mumbai serial bomb blasts. After his extradition, 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 Supreme Court on Thursday reserved orders on the petition filed by gangster Abu Salem seeking enforcement of the solemn assurance given by India in 2002 while extraditing him from Portugal that he will not be sentenced to a jail term beyond 25 years. Salem has been handed down two life terms by the trial courts for his role in the 1993 Mumbai serial bomb blasts and the murder of businessman Pradeep Jain in 1995.

Salem has been handed down two life terms by the trial courts for his role in the 1993 Mumbai serial bomb blasts and the murder of businessman Pradeep Jain in 1995. (PTI)

“Based on the arguments made, two scenarios emerge before us — whether looking into the assurance given before a foreign court, the executive should be told to take a time-bound decision on his remission just before completion of 25 years or going by the principle of comity of courts, this court should say that in the light of the assurance we read down the sentence of life imprisonment to a period of 25 years,” a bench of justices Sanjay Kishan Kaul and MM Sundresh said, before reserving the judgment.

The Union home secretary had last month filed an affidavit before the top court stating that India was bound by the assurance it had given to the Portugal court in December 2002 but suggested that the plea of Salem was premature as the question of his release will arise in November 2030, when he will complete 25 years of sentence. The affidavit counted this period to begin from November 11, 2005, when he was extradited from Portugal to face trial in multiple cases lodged against him.

On Thursday, additional solicitor general (ASG) KM Nataraj reiterated this position. “The decision is best left to the executive to consider under Article 72 (pardoning power of President) or Article 161 (pardoning power of Governor) at the relevant time,” he said. “Sovereign assurance given by one country to another country cannot be read into judicial exercise of power.”

The court asked the law officer to submit a two-page note of his submissions and asked him to consider if the petitioner’s claim for set-off against the total period of incarceration undergone should begin from the date of his extradition (November 2005) or the date when he was detained in Portugal (September 18, 2002) based on a red corner notice issued by Interpol at the instance of the Indian prosecuting agency.

The Centre claimed that the arrest of the petitioner in Portugal was in connection with a passport-related offence and had nothing to do with the crime for which he was extradited. The court, however, was not satisfied. “Once he is detained arising out of a process issued from this court, how you can exclude that period,” the bench noted. Nataraj replied, “The period of 25 years will only count after he is extradited and taken into our custody. He cannot take the benefit of sentence undergone in another case.”

Advocate Rishi Malhotra, appearing for Salem, submitted that once the Indian government accepts that the assurance given in 2002 by then deputy prime minister LK Advani, who was also the home minister at that time, binds the executive, this court should modify the sentence awarded to the petitioner by the courts to below 25 years without waiting for the executive to do it in a later point of time.

“Portugal court has refused extradition in another case looking into the violation of the solemn assurance by India,” Malhotra said.

To this, the court told him that in the fugitive businessman Vijay Mallya extradition case, the court in London had said they have not come across any instance where solemn assurance given by India has been violated. “That is why we were not very satisfied with the affidavit filed by the Union home secretary. We wanted the government to say whether they will honour the assurance or not,” said the bench.

The home secretary’s affidavit said, “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.”

Salem is currently serving life terms in two separate cases, including the 1993 Mumbai serial bomb blasts. After his extradition, 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.

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.

Meanwhile, the Delhi high court on Thursday allowed Salem to withdraw his petition seeking to declare his detention in India illegal. A bench headed by Justice Siddharth Mridul ordered that the petition, which also sought his repatriation to Portugal, is “dismissed as withdrawn”. Salem’s counsel said the issue is now pending before the Supreme Court and thus sought permission to withdraw the petition before the high court. “Advocate (appearing for the petitioner) seeks leave to withdraw the writ petition in view of subsequent developments. Writ petition is dismissed as withdrawn,” said the bench also comprising Justice Rajnish Bhatnagar.