'Sovereign Commitment To Portugal Binding?', Supreme Court Asks Centre In Abu Salem's Case

On a previous occasion the Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh observed that the Government of India had provided assurance to the Government of Portugal that in the event of extradition of the Abu Salem to India, he would not be sentenced to death penalty or be imprisoned for a term beyond 25 years. In view of the same, the Bench had directed the Central Government to file an affidavit on Salem's plea that the 2017 judgment of a Mumbai TADA Court sentencing him to life imprisonment violated the terms of the extradition.

The Central Bureau of Investigation ("CBI") had filed an affidavit stating, in essence, the solemn sovereign assurance given by the then Deputy Prime Minister cannot be construed as a guarantee/undertaking to assure that no court in India would award the punishment provided by the prevalent Indian laws.

Justice Kaul was concerned that the affidavit though sought from the Central Government was filed by the investigating agency.

"It is not an affidavit. I want it. Who was asked to file the affidavit? It is a commitment by the Government of India. CBI is a prosecuting agency."

He stated that the Government should take a stand whether they are going to stand by the international committee or not.

"Is the Govt. saying - we will not stand by the international commitment. Then please say so. The Union of India gives assurance to a foreign country. Does it stand by it or not? The problem is that you are trying to await taking a stand."

Justice Kaul accepted that the offence is serious, but the stand on the commitment made in its political wisdom should be evaluated by the Government based on the far reaching ramification pertaining to extradition of fugitives in the future.

"What call we take is the second stage. You will certainly have to take a stand. We will ask the Home Secretary to file an affidavit. Offence is serious, but in your political wisdom; international wisdom you did something. You have to take care of it. It would have far reaching ramifications the next time you want someone to come to the country."

Advocate, Mr. Rishi Malhotra, appearing on behalf of Abu Salem, submitted that in Portugal, the courts cannot award a sentence for more than 25 years. Based on the principle of reciprocity the Government of India had given solemn sovereign assurance to the Portual Courts that in case he is extradited Abu Salem would not be awarded more than 25 years. Based on this assurance, he was extradited and now the TADA Court has in on life imprisonment.

The Bench directed -

"We are not satisfied with the reply. The question is that whether the assurance given by the then Deputy Prime Minister on behalf of the Government is to be abided on not. The Govt. has to take a stand keeping in mind the international commitment made and the ramification…Therefore, we call upon the Home Secretary to file an affidavit in this case. The affidavit be filed within a period of 3 weeks. List on 12.04.2022."

In June 2017, a Special Terrorism and Disruptive Activities Act (TADA) court had found Abu Salem, Mustafa Dossa and four others guilty of conspiring and carrying out a string of bomb blasts across Mumbai in 1993, which ended up killing 257 people. Special TADA Judge G.A. Sanap convicted Abu Salem, Mustafa Dossa, Karimullah Khan, Firoz Abdul Rashid Khan, Riyaz Siddiqui and Tahir Merchant for offences 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. Abdul Qayyum Karim Sheikh is the only accused who has been acquitted as the court was of the view that the prosecution had failed to establish conspiracy against him and it held that the evidence was not credible. All of the accused were acquitted of charges under Section 121 (waging, or attempting to wage war, or abetting waging of war, against the Government of India) of the IPC.

The prosecution had submitted that the accused hatched a conspiracy in Dubai to avenge the demolition of Babri Masjid that took place on December 6, 1992, wherein it was decided that arms and ammunition will be sent to India.Abu Salem transported and distributed arms and ammunitions used in the blast, Salem was extradited from Portugal.

On 12.03.1993, 12 bombs exploded at different locations across the city of Mumbai taking away 257 lives and injuring 713. Property worth Rs. 23 crore was damaged.

A charge sheet was filed against 129 accused, out of which 100 were convicted. Twelve of the accused were awarded death sentence, while 20 were sentenced to life in 2006. Later, the trial court commuted the death sentence to life for 10 of the accused.The court also noted that Abu Salem delivered AK-56 rifles to actor Sanjay Dutt's residence who was also convicted under the Arms 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. The Government of India gave an undertaking under the signatures of the then Deputy Prime Minister, Mr. L.K. Advani that on the basis of provisions of the Constitution of India, Indian Extradition Act, and the Code of Criminal Procedure, 1973 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, appellant-Abu Salem would not be visited by death penalty or imprisonment for a term beyond 25 years. 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).

[Case Title: Abu Salem Abdul Kayyum Ansari v. The State Of Maharashtra]