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

The Supreme Court, on Monday, held that the sentence of life imprisonment imposed on Abu Salem in the 1993 Bombay Blasts case has to remitted upon the completion of 25 years from the date of his detention in Portugal for extradition to India(12.10.2005), as the sovereign commitment made by the Government of India to the Republic of Portugal at the time of extraditing Salem to India was that his sentence will not exceed 25 years."On the appellant completing 25 years of sentence, the Central Government is bound to advise the President of India for exercise of powers under Article 72 of the Constitution of India and to release the appellant in terms of the national commitment as well as the principle based on the comity of courts", the Court ordered.A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh directed that the Union Government is to place the necessary documents before the President within one month of completion of 25 years. The Bench also observed that the Central Government can itself consider remission in the said one month period upon completion of 25 years, in terms of Sections 432 and 433 of the CrPC. Accordingly, the bench disposed of the appeal field by Salem.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...

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

Sohini Chowdhury

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