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Supreme Court: Will India honour Abu Salem promise to Portugal courts?
The apex court pointed out that Salem’s chief contention pertained to 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
New Delhi: The Supreme Court on Wednesday sought a categorical response from the Union government on whether it intends to honour the assurance given in 2002 by the then deputy prime minister LK Advani to the courts in Portugal that gangster Abu Salem would neither be given the death penalty nor imprisoned beyond 25 years after his extradition to India.
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.
“We are only putting to you this -- it is a solemn sovereign assurance given by the then deputy prime minister to Portugal. So, the government of India will have to give some thought to it and tell us about their stand,” a bench, headed by justice Sanjay Kishan Kaul, told advocate Sanjay Tyagi, who was appearing for the Centre in the matter.
The bench, which also comprised justice MM Sundresh, pointed out that Salem’s chief contention pertained to assurances given by Indian authorities before the courts in Portugal in 2002 and 2005 that Salem will not get death penalty or a jail term beyond 25 years.
“In a nutshell, his submission is imprisonment cannot exceed beyond 25 years in terms of the assurance given by the Union of India...we call upon the prosecuting agencies/Union of India (as the assurance was given by the Union of India) to take a stand on the issue and file a categorical affidavit in this regard,” stated the court in its order.
The bench also demanded an answer from the Centre on computation of Salem’s custody after his lawyers, advocates Rishi Malhotra and S Hari Haran, 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.
“According to the counsel for the petitioner, he was detained by Portuguese authorities in 2002 and that should be the reckoning time and not when he was released from there and detained by Indian authorities in October 2005...let this aspect be also clarified by the Union of India,” added the court order.
The bench also noted that the state of Maharashtra is also a prosecuting agency in some of the cases, and asked it to have a consultation with the central government before the court is informed about their stand. “Prosecuting agencies should discuss this issue and file an appropriate affidavit before us,” directed the court.
Advocate Sachin Patil, representing the Maharashtra government, submitted that “by and large”, the state government will adopt the stand taken by the Centre in the matter.
Centre’s counsel Sanjay Tyagi, on his part, informed the bench that solicitor general (SG) Tushar Mehta is the lead counsel on behalf of the Union government and that authorities will need at least four weeks to file their affidavit. “A deliberation will have to take place between the Union ministry of home affairs and ministry of external affairs before the affidavit is filed. It will need some time,” said Tyagi.
Accepting his request, the court gave the Centre four weeks to file its affidavit and fixed March 8 as the next date of hearing.
On March 12, 1993, Mumbai witnessed an unprecedented attack with a series of 12 bomb explosions that 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 Speciality 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.
