Supreme Court asks Union Home Secretary to file affidavit on Abu Salem's plea

Abu Salem. File Pic

The Supreme Court has asked the Home Secretary to file an affidavit on extradited gangster Abu Salem's plea raising the issue that as per the extradition treaty between India and Portugal, his jail terms cannot extend beyond 25 years.

A bench of Justices Sanjay Kishan Kaul and MM Sundresh asked Home Secretary to file an affidavit mentioning whether the Centre is committed to abiding by the assurance given by the then Deputy Prime Minister LK Advani to Portugal authorities.

The court said that the government has to take a stand on Salem's plea. The top court asked Home Secretary to file an affidavit in this regard within three weeks and adjourned the matter for April 10.

Meanwhile, CBI has filed an affidavit in this matter stating that the Indian court is not bound by the assurance given in 2002 by the then deputy prime minister that gangster Abu Salem would neither be given death sentence nor imprisoned beyond 25 years.

"This Court while deciding Criminal Appeal no.415/416/2012 filed by Abu Salem Abdul Qayyum Ansari has held that "both India and Portugal are two sovereign unequivocal terms, the verdict by the Constitutional Court of Portugal is not binding on this Court but only has persuasive value". That the argument of the appellant (Salem) that imprisonment term cannot extend beyond 25 years as per the assurance given is legally unsustainable, " the CBI said in its affidavit.

CBI said that there is no merit in the contention of the appellant and the life sentence awarded by the trial court is legally correct and needs no interference.

Salem has raised issues that the 2017 judgment of a Terrorist and Disruptive Activities (Prevention) Act (TADA) Court sentencing him to life imprisonment was against the terms of the extradition treaty.

Salem's advocate Rishi Malhotra said that On December 17, 2002, the Government of India gave a Solemn Sovereign assurance to the Government of Portugal that if the Appellant Salem is extradited for Trials in India he would neither be conferred with the Death penalty nor be subjected to imprisonment for a term beyond 25 years.

He also said that the TADA Court were not according to the Extradition Order. He further added that the Government can exercise its powers under section 432, 433 CrPC to commute the sentence of Life imprisonment in order to bring down within the ambit of assurance of sentence of not more than 25 years as the execution of the sentence was purely in the domain of Government.

The petitioner also said that the government should ensure to bring down punishment consistent and commensurate with the assurances but it cannot be said that the Court's hands were tied in not awarding punishment to the Appellant Salem for more than 25 years.

He also mentioned the issue of 'Set Off'. According to the Appellant Salem, though he was in custody for some offences of passport violation in Portugal since September 18, 2002, and was undergoing a sentence of 4 1/2 years, yet, the Appellant was detained also on September 18 2002 in pursuance to the Red Corner Notice issued by the Designated Courts, Mumbai.

"Even if the said date is not to be taken into consideration for the purposes of Set-Off, the Ministerial Order dated March 28, 2003, of the Ministry of Justice Portugal by which it had admitted the Extradition request of the Appellant of the Government of India to be tried for various offences ought to have been taken into consideration," the lawyer said.

The TADA Court, however, held that since the Appellant was released in the Portugal case on October 12, 2005, therefore, the custody for the purposes of Set-Off would be counted from October 12, 2005.

The Appellant Salem as per the imprisonment certificate has undergone around 17 years of sentence by counting his Set Off period from November 2005 whereas his Set Off period should be counted from March 28, 2003, the lawyer said.

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