Abu Salem's Plea Against Sentence Not Premature : Supreme Court Rejects MHA's Stance

The stand taken by the Union Ministry of Home Affairs that it is not the "appropriate time" to decide the issue relating to the sovereign commitment made to Portugal while extraditing Abu Salem has irked the Supreme Court.The Supreme Court, on Thursday, expressed that it did not appreciate the tenor of the affidavit filed by the Union Home Secretary in the Abu Salem case with respect to the sovereign commitment made to Portugal at the time of his extradition that his sentence will not exceed 25 years.A Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh was hearing a plea by 1993 Bombay Blast case convict Abu Salem that his sentence of imprisonment cannot exceed 25 years as per the undertaking given by India to Portugal. The Bench noted in its order that the MHA seemed to suggest what the Court should do or should not do with respect to the case. The Bench observed as follows in the Order: "The affidavit goes on to state that it is legally untenable to club the assurance with the merits of the case and he should argue the appeal on the merits of the case. Thereafter, it is stated that this Hon'ble Court may decide the appeal on merit. As to what this Court has to do or not to do is for the Court to take a call on. We don't appreciate the tenor of the affidavit. If a convict seeks to accept his guilt and conviction it cannot be said that the Court must hear the appeal on merits…"The Bench was particularly disappointed with the following extract from the MHA affidavit :"That having carefully examined the matter and the ramifications which the stand of Union of India will have, it is the respectful submission of the Central Government that this Hon'ble Court may decide the appeal on merits. The compliance of the assurance dated 17.12.2002 will be done at an appropriate time and the Government of India will abide by the assurance in accordance with the law and subject to the remedies as may be available at the stage."The Bench also took exception to the MHA stand that Abu Salem's plea was "premature" and that he can raise his plea only after 25 years."We have to take a call on the effect of the assurance and we cannot postpone the hearing of the appeal on that basis. Nor is it permissible for the Govt. to say on affidavit that the appellant cannot raise this plea", the Bench said in its order.The Court added that Salem's plea is "neither 'premature' nor based on 'hypothetical surmises'". On a couple of earlier occasions, the Bench had asked the Union Home Secretary to file an affidavit clarifying the Government's stand with respect to the sovereign commitment. Initially, CBI filed a response, which irked the Bench, as a prosecuting agency had filed an affidavit commenting on the sovereign assurance given by the Government of India. By way of an affidavit dated 18.04.2021, the Union Home Secretary had appraised the Bench that the Government of India is bound by the sovereign commitment made by it to the Republic of Portugal. Though binding, the assurance would come into effect only after 25 years expires on 10.11.2030 (considering Salem was deported in 2005). It was made abundantly clear that the plea made by Salem, at the present stage, was premature. Advocate, Mr. Rishi Malhotra appearing for Abu Salem, submitted that Salem was detained on 18.09.2002 by the Portuguese authorities on account of a Look Out Notice and the same should be the reckoning time for considering the 25 years period and not when he was released from the Portuguese Court and taken in by the Indian authorities. Referring to the affidavit filed by the Union Home Secretary on 18.04.2022, he argued that though the Union Government had conceded that it was bound by the sovereign assurance, it had mentioned that the same would be abided by 'at an appropriate time subject to the remedies which may be available'. Justice Kaul asked Additional Solicitor General, Mr. K.M. Nataraj, "I don't understand what is meant by remedies which may be available.' He added - "I don't understand some parts of the affidavit. The Home Secretary seems to tell us we should decide the appeal. It is not for him to tell us. What we have to do, we will do…I don't take it very kindly." The Bench was of the view that if the appellant agrees not to argue the appeal based on the fact that the Union Government had decided to stand by its commitment, the Home Secretary is not in a position to still ask the Court to decide the appeal on merits. The Bench agreed to hear Mr. Nataraj on the issue of set-off, i.e., whether the period when Salem was in custody in Portugal is to be excluded, while deciding the issue of sentence. "In a custody case, the period starts from the day you are taken into custody, you seek to exclude the period when he was in custody in Portugal." Mr. Nataraj emphasised that the sovereign commitment binds the two countries involved and the benefit of the same cannot be claimed as a matter of right by the accused. Justice Kaul...

Abu Salem's Plea Against Sentence Not Premature : Supreme Court Rejects MHA's Stance

Sohini Chowdhury

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