Bombay Blasts Case Convict Abu Salem Has To Be Released After 25 Years Of Sentence As Per Extradition Treaty With Portugal : Supreme Court

The Bench refused to accept petitioners request for setting off the period he was detained in Portugal as the it was with respect to a different offence in a different country and would not have any impact on the detention with respect to the matter under consideration. 

The Bench however said that the international treaty between the Governemnt of India and Republic of Portugal was not binding on the Indian Courts due to the principle of the separation of powers. Courts must proceed with the law to impose the sentence. The bench also held that the sentence of the appellant was just and proportionate considering the gravity of the crime.

"Looking at the gravity of the offence, there is no question of this Court excercising any special power to commute his sentence" ,the bench said.

Advocate, Mr. Rishi Malhotra appearing on behalf of Abu Salem had beseeched the Bench to modify or read down the life imprisonment imposed by the Trial Court on Salem to 25 years, in consonance with the sovereign commitment that Indian Government had made to the Portuguese Republic almost a decade ago, while requesting his extradition.

Acknowledging that the Union Government was bound by the sovereign assurance, Additional Solicitor General, Mr. K.M. Nataraj had argued that the same can be done by the Appropriate Government in exercise of power under Section 432 of Cr.P.C. (power to suspend or remit sentences) or by the Governor in exercise of Article 161 of the Constitution of India or by the President in exercise of Article 72 of the Constitution. Even in its affidavit dated 18.04.2022, the Union Government had conceded that it was bound by the commitment, but emphasised that the same would be adhered to in accordance with law and subject to remedies available on completion of the term of 25 years, as mentioned in the undertaking. It urged the Bench to decide the appeal on merit without going into the issue of sovereign assurance. On perusal of the said affidavit, the Bench had expressed its displeasure with respect to its tenor.

By a letter dated 17.12.2002, the then Deputy Prime Minister, Mr. L.K. Advani on behalf of the Government of India assured the Portuguese Republic that it will exercise its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, Salem would not be visited by death penalty or imprisonment for a term beyond 25 years. The relevant position of the sovereign undertaking reads as under -

"...The Government of India, therefore, on the basis of the provisions of the Constitution of India, the Indian Extradition Act, 1962 and the Code of Criminal Procedure of India, 1973 solemnly assures the Government of Portugal that it will exercise its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, Abu Salem Abdul Qayoom Ansari and Monica Bedi would not be visited by death penalty or imprisonment for a term beyond 25 years."

By way of a letter dated 25.05.2003, the Ambassador of India in Lisbon further assured the Portuguese authorities that in the event of extradition Salem would not be prosecuted for offences other than those for which he was requested to be extradited and would not be re-extradited to a third country. Upon consideration of the request for extradition by the authorities, Court of Appeals, Lisbon, Supreme Court of Justice, Portugal and Constitutional Court of Portugal, Salem's extradition was granted in eight criminal cases (three of which were being prosecuted by CBI, two by Mumbai Police and three by Delhi Police). Eventually Salem was extradited on 10.11.2005.

Mr. Malhotra had also implored the Bench to set-off the period of his detention in Portugal (from 18.09.2002 till his extradition) against the sentence of Salem's imprisonment, in terms of Section 428 Cr.P.C., which categorically contemplates that the period of detention undergone during investigation, enquiry or trial of the same case would be set off against the term of the sentence.

He apprised the Bench, that though Salem was in custody in Portugal on 18.09.2002 for passport law violation, his arrest was on the strength of the Red Corner Notice, which was issued pursuant to the issuance of the non-bailable warrant by the Special TADA Court, Mumbai in relation to the offences for which he was ultimately convicted and sentenced to life imprisonment.

The submissions in this regard were vehemently opposed by Mr. Nataraj. He averred that the period of detention in Portugal was with respect to a completely different offence (violation of passport law) and therefore the benefit of Section 428 CrPC would not enure to Salem to set-off the period of detention in Portugal against his sentence of life imprisonment. In the alternative he submitted that set-off would be of no consequence in case of life imprisonment, which extends to the entirety of one's life.

Background

On 12.03.1993, 12 bombs had exploded at different location across Mumbai killing almost 257 people and injuring 713. Property worth INR 23 crore was damaged. The prosecution argued that the accused persons had hatched a conspiracy in Dubai to avenge the demolition of the Babri Masjid. It was urged Abu Salem had transported and distributed arms and ammunition used in the Mumbai blast of 1993.

In June, 2017, Abu Salem and five others were found guilty of conspiracy and carrying out bomb blasts across Mumbai in 1993, by Special TADA Court Judge G.A. Sanap. To be specific, Salem was convicted for offences punishable under Sections 120B, 302, 307, 326, 427, 435, 436, 201 and 212 of the Indian Penal Code (IPC). Sections 3, 3(3), 5 and 6 of the Terrorist and Disruptive Activities Rapid Protection Act, and provisions of the Arms Act, Explosive Substances Act and the Prevention of Damages to Public Property Act. However, all accused persons were acquitted of charges under Section 121 (waging, or attempting to wage war, or abetting waging of war, against the Government of India) of the IPC. Subsequently, in September, 2017 Salem was inter alia, sentenced to life imprisonment.

Also Read : Set-Off Under Section 428 CrPC Can't Be Claimed For Detention Undergone For Offence In Foreign Country : Supreme Court In Abu Salem's Case

Case Title: Abu Salem v. State of Maharashtra Criminal Appeal No. 679 of 2015]

Citation : 2022 LiveLaw (SC) 578

Headnotes

Code of Criminal Procedure; Section 428 - Period of detention undergone by the accused to be set off against the sentence or imprisonment - it cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country - the criminal law of the land does not have any extra-territorial application - thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country - accused cannot claim a double benefit under Section 428 of the Cr.P.C - i.e., the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well. [Paragraph 50, 52]

Extradition Act 1962 : The separation of Judicial and Executive powers and the scheme of the Indian Constitution cannot bind the Indian courts in proceedings under the Extradition Act. Thus, 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 [Para 39]

Extradition Act 1962 - Supreme Court holds that Union Government is bound to release Bombay Blast case convict Abu Salem by granting remission of him after he completes 25 years of sentence from the date on which he was detained for extradition to India (12.10.2005) as per the sovereign assurance given to Portugal.

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