SC asks Home Secretary to file affidavit on mobster Abu Salem’s plea

New Delhi: The Supreme Court on Tuesday asked the Home Secretary to file an affidavit on extradited mobster Abu Salem’s plea, raising the issue that under India’s extradition treaty with Portugal, his prison terms do not cannot exceed 25 years.

A panel of Judges Sanjay Kishan Kaul and MM Sundresh asked the Home Secretary to file an affidavit stating whether the Center has undertaken to honor the assurance given by the then Deputy Prime Minister to the Portuguese authorities. The court said the government must take a position on Salem’s plea.

The High Court asked the Home Secretary to file an affidavit in this regard within three weeks and adjourned the case to April 10.

Meanwhile, CBI has filed an affidavit in the case stating that the Indian court is not bound by the assurance given in 2002 by the then Deputy Prime Minister that gangster Abu Salem would not be sentenced to death. nor imprisoned beyond 25 years.

“This Court, while ruling on Criminal Appeal No. 415/416/2012 filed by Abu Salem Abdul Qayyum Ansari, declared that “India and Portugal are two unequivocal sovereign terms, the verdict of the Constitutional Court of Portugal is not binding on this Court but is of persuasive value only”. That the argument of the appellant (Salem) that the term of imprisonment cannot exceed 25 years according to the assurance given is legally untenable “, said the CBI in its affidavit.

CBI said that the appellant’s claim was unfounded and that the sentence of life imprisonment imposed by the trial court was legally correct and did not require any interference.

Salem raised questions that a 2017 judgment by a Terrorist and Disruptive Activities Prevention Act (TADA) court sentencing him to life imprisonment was contrary to the terms of the extradition treaty.

Salem’s lawyer, Rishi Malhotra, testified that on December 17, 2002, the Indian government gave a solemn and sovereign assurance to the Portuguese government that if appellant Salem were extradited for trial in India, he would neither be sentenced to the death penalty or subject to imprisonment for more than 25 years.

He also said the TADA court did not comply with the extradition order. He further added that the government can exercise its powers under Sections 432, 433 CrPC to commute the sentence of life imprisonment to bring back within the scope of the assurance of a sentence not exceeding 25 years, because the execution of the sentence was purely in the domain of the government.

The petitioner also said the government should be careful to impose a sentence that is consistent and proportionate to the assurances, but the court’s hands cannot be said to have been tied in not sentencing the appellant Salem for more than 25 years.

He also mentioned the issue of “Set Off”. According to the Appellant Salem, although he was detained for certain offenses of passport violation in Portugal since 18 September 2002 and was sentenced to 4.5 years, the Appellant was also detained on September 18, 2002 pursuant to the red corner notice issued by the Designated Courts of Mumbai.

“Even if the said date is not to be taken into consideration for the purposes of the Compensation, the Ministerial Decree of March 28, 2003 of the Ministry of Justice of Portugal by which it had accepted the request for Extradition of the Appellant of the Government of India to stand trial for various offenses should have been taken into consideration,” the lawyer said.

The TADA Tribunal, however, found that since the Appellant was released in the Portugal case on October 12, 2005, custody for the purposes of compensation would therefore be counted from October 12, 2005.

Appellant Salem according to the Certificate of Imprisonment received around 17 years of sentence counting his compensation period from November 2005 while his compensation period should be counted from March 28, 2003, the lawyer said.

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Posted: Tuesday, March 8, 2022, 1:40 p.m. IST