Abu Salem Case : Supreme Court Asks Centre To Clarify Stand On Commitment To Portugal To Limit Sentence To 25 Years

On the previous occasion, the Bench comprising Justices Sanjay Kishan Kaul and M.M. Sundresh had expressed dissatisfaction with the affidavit filed by the Central Bureau of investigation which had stated that the assurance so given to the Portuguese authority is not binding on the Indian courts. The Bench was perturbed that a prosecuting agency had chosen to file an affidavit commenting on the solemn sovereign assurance given by the Government of India. In view of the same, it had directed the Union Home Secretary to file an affidavit within three weeks and directed the Registry to list the matter on 12.04.2022.

As the matter came up for hearing, Advocate, Mr. Rishi Malhotra appearing for Abu Salem apprised the Bench that the Home Secretary has not filed an affidavit.

The Counsel appearing on behalf of the Additional Solicitor General requested the Bench for a passover.

Disappointed with the non-compliance, the Bench asked the Counsel to seek information if the Home Secretary was willing to make an oral statement in the matter.

"Please check up from the Home Secretary if he wants to make an oral statement."

After being passed over, when the matter was called up for hearing, Solicitor General of India, Mr. Tushar Mehta informed the Bench that there was a communication gap at their end which had resulted in the non-filing of the affidavit. He assured the Bench that it would be filed by Monday.

"There was a communication gap on our part. Requesting next to next working day."

Mr. Malhotra urged the affidavit to be filed in a day's time.

Irked by his comment, Mr. Mehta stated -

"Your client is accused of serial bomb blast matter, you are in no position to direct when to file. Your lordships, he cannot direct the Government when to file."

The Bench also asked Mr. Mehta to advise the Union Government, as the Court was concerned that the ramification of the position to be taken by the Government in this matter might impede other matters pertaining to extradition of fugitives.

At the request of the Solicitor General, the Bench directed the Registry to list the matter next on 21st April, 2022.

"The Ld. SG states that there was communication gap on their part and the affidavit of the Home Secretary would be filed on or before 18th April as last opportunity. List on 20th April for directions", the order stated.

"I believe the Court's time should be respected",Justice Kaul added.

In June 2017, a Special Terrorism and Disruptive Activities Act (TADA) Court had found Abu Salem guilty of conspiring and carrying out a string of bomb blasts across Mumbai in 1993. Special TADA Judge convicted Abu Salem 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.

The prosecution had submitted that Salem hatched a conspiracy in Dubai to avenge the demolition of Babri Masjid in 1992. He transported and distributed arms and ammunition used in the 1993 Bombay blasts. In view of the same, Salem was extradited from Portugal.

While extraditing him, the then Deputy Prime Minister, Mr. L.K. Advani on behalf of the Government of India gave an undertaking on the basis of provisions of the Constitution of India, Indian Extradition Act, and the Code of Criminal Procedure, 1973 and assured the Government of Portugal that it will exercise its powers to ensure that once extradited 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 thoroughly scrutinising the request, extradition of Abu Salem was granted in 8 criminal cases. In September, 2017, a Mumbai court awarded life imprisonment to Salem.

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