Abu Salem case: Compliance of assurance to Portugal at ‘appropriate time’, Centre tells SC

The Centre has 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.

In an affidavit filed by Home Secretary, the Government of India said that the question of the Union of India honouring its assurance dated December 17, 2002, will arise only when the period of 25 years is to expire.

The Home Secretary 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 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 affidavit clarified that the judiciary, as the Constitution of India envisages, is independent in deciding all cases including criminal cases in accordance with the applicable laws without in any way being bound by any position taken by the executive.
However, the Central Government said that “the period of 25 years which is mentioned in the assurance will be abided by the Union of India at an appropriate time subject to the remedies which may be available”.

“The question of the Union of India honouring its assurance dated 17.12.2002 will arise only when the period of 25 years is to expire. This date is 10.11.2030,” the affidavit filed by Home Secretary said.

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.

“The Government of India will abide by the said assurance dated 17.12.2002 subject to the rights which may be available at that stage. The attempt of convict – appellant to club that assurance with merits of the present case is legally untenable as the appeal needs to be decided in accordance with Section 19 of the TADA read with other provisions governing criminal procedure,” the affidavit said.

“Therefore, there is no question of the convict appellant arguing anything at this stage based upon the said assurance while arguing the present appeal on merits of the case which can be argued only based upon the investigation papers, evidence collected [both oral and documentary] and the findings of the designated court,” the affidavit said.

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.

He also mentioned the issue of ‘Set Off’. According to Salem, though he was in custody for some offences of passport violation in Portugal since September 18, 2002, and was undergoing a sentence of 4 1/2 years, yet, the Appellant was detained also on September 18 2002 in pursuance to the Red Corner Notice issued by the Designated Courts, Mumbai.

“Even if the said date is not to be taken into consideration for the purposes of Set Off, the Ministerial Order dated 28.3.03 of the Ministry of Justice Portugal by which it had admitted the Extradition request of the Appellant of the Government of India to be tried for various offences ought to have been taken into consideration,” the lawyer said.

The TADA Court, however, held that since the appellant was released in the Portugal case on October 12, 2005, therefore, the custody for the purposes of set-off would be counted from that date.

Salem as per the imprisonment certificate has undergone around 17 years of sentence by counting his Set Off period from November 2005 whereas his Set Off period should be counted from March 28 2003, the lawyer said. (ANI)