Supreme Court To Pronounce Verdict On July 11 On Abu Salem's Plea That His Sentence Can't Exceed 25 Years As Per Indian Undertaking To Portugal

Appearing before a Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh, Advocate, Mr. Rishi Malhotra, representing Salem, made two broad submissions -

1. In view of the sovereign commitment given to the Portuguese authorities while extraditing Salem, the sentence of life imprisonment imposed by the Trial Court (TADA Court) be modified or read down to 25 years; and
2. The period of detention in Portugal (from 18.09.2002, date of arrest till extradition) which was effected by the Red Corner Notice (RCN) issued by INTERPOL pursuant to the non-bailable warrant issued by the TADA Court in Mumbai, ought to be set-off against the sentence of imprisonment.

Per contra, Additional Solicitor General, Mr. K.M. Nataraj argued that the period of detention in Portugal ought not to be considered for the purpose of setting-off, as Salem was serving sentence in Portugal for violation of Portuguese passport law from the same day (18.09.2002) when he was arrested pursuant to the RCN. Moreover, set-off would be of no consequence when the punishment is that of life imprisonment, which ideally extends to the entirety of one's life.

In June 2017, a Special Terrorism and Disruptive Activities Act (TADA) Court had found Abu Salem and five others guilty of conspiring and carrying out a string of bomb blasts across Mumbai in 1993, which ended up killing 257 people. Abu Salem was convicted for offences punishable under Sections 120B, 302, 307, 326, 427, 435, 436, 201 and 212 of the Indian Penal Code, Sections 3, 3(3), 5, 6 of the Terrorist and Disruptive Activities Rapid Protection Act, and provisions of the Arms Act, Explosive Substances Act and the Prevention of Damage to Public Property Act.

In September, 2017, the Mumbai court awarded life imprisonment to extradited gangster Abu Salem.

On 13.12.2002, the Government of India had issued a Gazette Notification in exercise of the powers conferred by Sub-section (1) of Section 3 of the Extradition Act, 1962, directing that the provisions of the Extradition Act, other than Chapter-III, shall apply to the Portuguese Republic with effect from 13.12.2002. By way of a letter dated 17.12.2002, the then Deputy Prime Minister, Mr. L.K. Advani on behalf of the Government of India assured 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, Salem would not be visited by death penalty or imprisonment for a term beyond 25 years.

"...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."

Subsequently, the Ambassador of India in Lisbon, by letter dated 25.05.2003, gave another assurance that in the event of extradition of the Abu Salem, he will :

(i) not be prosecuted for offences other than those for which his extradition has been sought;

(ii) not be re-extradited to any third country.

After the request for the extradition of Abu Salem was considered and examined by the authorities in Portugal and by the Court of Appeals, Lisbon, Supreme Court of Justice, Portugal and Constitutional Court of Portugal, extradition of Abu Salem was granted in 8 criminal cases (3 cases prosecuted by CBI, 2 cases by Mumbai Police and 3 cases by Delhi Police).

Accordingly, Salem was extradited on 10.11.2005.

In an affidavit dated 18.04.2022 filed by the Union Home Minister before the Bench, the Union Government conceded that it is bound by the sovereign commitment. However, the same would be adhered to once the term of 25 years expires. The affidavit also urged the Bench to decide the appeal on merit without going into the issue of sovereign commitment, which would be adhered to by the Government of India in accordance with law and subject to the remedies available on the completion of the 25 years.

During the hearing, the Bench expressed that it did not appreciate the tenor of the affidavit in the following terms -

"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…"