Abu Salem Won’t Be Put Behind Bars For More Than 25 Yrs

The Supreme Court on Monday said that criminal law of the land does not have any extra-territorial application while holding that the Centre is bound to advise the President of India on the issue of an extradition treaty between India and Portugal on completion of Abu Salem 25 years of the detention period.

“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, ” a Bench of Justices Sanjay Kishan Kaul and MM Sundresh said.
The Court also made it clear that it tends to agree with the submissions of the Additional Solicitor General on the larger conspectus, i.e., 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.

The Bench said that 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.

The Court order came while disposing of the petition filed by extradited gangster Abu Salem.

Now Gangster Abu Salem cannot come out of jail till October 2030 as the Supreme Court ruled that his detention commenced from October 12, 2005, when his custody was handed to Indian authorities by the Portugal government.

“In view of the aforesaid facts and circumstances, we conclude that the detention of the appellant commences from 12.10.2005 in the present case. On the appellant completing 25 years of sentence, the Central Government is bound to advice the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment as well as the principle based on comity of courts,” the Court said.

In view thereof, the necessary papers be forwarded within a month of the period of completion of 25 years sentence of the appellant. In fact, the Government can itself exercise this power in terms of Sections 432 and 433 of the CrPC and such an exercise should also take place within the same time period of one month,” the Court said.

The Court also passed various remarks in its 44-page order.

“A reference to the solemn sovereign assurance on 17.12.2002 itself makes it clear that the assurance, which was given on behalf of the Executive in India was that if the appellant was extradited by Portugal for trial in India, he would not be visited with death penalty or imprisonment for a term beyond 25 years, ” the court observed.

“To achieve this objective the methodology placed before the Portugal Courts was that Article 72(1) of the Constitution conferred power on the President of India to grant pardon, reprieve, respite or remit punishment or suspend, remit or commute the sentence of any convict person convicted of any offence.”

“This was with the assurance under Sections 432 and 433 of the Cr.P.C. which conferred the power on the Government to commute the sentence to life imprisonment with terms not exceeding 14 years. It is also the subsequent solemn assurance of the Ambassador of India given on 25.05.2003 that on the appellant being extradited, he will not be prosecuted for offences other than those for which the extradition was sought and he will not be

extradited to any third country, ” the Court noted.

The Supreme Court in May reserved its order on July 11 regarding 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.

Abu Salem’s advocate had apprised the Supreme Court of India that the Supreme Court of Portugal had stated that if the requesting state (India) exceeds the terms of the agreement, then the accused (Abu Salem) shall be extradited again back. Abu Salem’s advocate has apprised the SC that there is a violation of the terms of the agreement and assurance given to Portugal.

Supreme Court had observed that the exercising of power by the executive and by the court is different.

Abu Salem’s advocate also apprised the court that his client was in custody in Portugal since 2002. Abu Salem was also arrested on the virtue of red corner notice, the lawyer said. He also apprised the court that my extradition started in 2003 and went on for almost 2 years and custody was handed over in 2005.

Centre had earlier submitted that the Union of India honouring its assurance will arise only when the period of 25 years is to expire.

The Centre had said the compliance of the assurance given to the Portugal government during the extradition of gangster Abu Salem will be done at an “appropriate time” and the judiciary, as the Constitution of India envisages, is independent in deciding all cases in accordance with the applicable laws.

The Supreme Court was hearing the plea of Abu Salem which contended that as per the extradition treaty between India and Portugal, his jail terms cannot extend beyond 25 years.

The Home Secretary has also clarified that the Government of India will abide by the assurances in accordance with the law and subject to the remedies as may be available at that stage.

Explaining the Extradition Act, 1962, the Centre, in its affidavit, said it is an Act enabling the executive of one State [the term “State” being used in the parlance of international law] to deal with another State to extradite accused / convict persons and these powers are executive powers and while exercising such powers, it is an inherent understanding that it would bind the executives of the respective States.

The government also said that before the said date, the convict appellant Salem cannot raise any arguments based on the said assurance.

The Centre Government remarked that the contention of the petitioner about non-compliance of assurance is premature and based on hypothetical surmises and can never be raised in present proceedings.

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 had 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 had 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 the sentence of not more than 25 years as the execution of the sentence was purely in the domain of Government.

The petitioner had 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 Salem for more than 25 years. (ANI)

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