Abu Salem's Plea Against Sentence Not Premature : Supreme Court Rejects MHA's Stance

"The affidavit goes on to state that it is legally untenable to club the assurance with the merits of the case and he should argue the appeal on the merits of the case. Thereafter, it is stated that this Hon'ble Court may decide the appeal on merit.

As to what this Court has to do or not to do is for the Court to take a call on. We don't appreciate the tenor of the affidavit. If a convict seeks to accept his guilt and conviction it cannot be said that the Court must hear the appeal on merits…"

The Bench was particularly disappointed with the following extract from the MHA affidavit :

"That having carefully examined the matter and the ramifications which the stand of Union of India will have, it is the respectful submission of the Central Government that this Hon'ble Court may decide the appeal on merits. The compliance of the assurance dated 17.12.2002 will be done at an appropriate time and the Government of India will abide by the assurance in accordance with the law and subject to the remedies as may be available at the stage."

The Bench also took exception to the MHA stand that Abu Salem's plea was "premature" and that he can raise his plea only after 25 years.

"We have to take a call on the effect of the assurance and we cannot postpone the hearing of the appeal on that basis. Nor is it permissible for the Govt. to say on affidavit that the appellant cannot raise this plea", the Bench said in its order.

The Court added that Salem's plea is "neither 'premature' nor based on 'hypothetical surmises'".

On a couple of earlier occasions, the Bench had asked the Union Home Secretary to file an affidavit clarifying the Government's stand with respect to the sovereign commitment. Initially, CBI filed a response, which irked the Bench, as a prosecuting agency had filed an affidavit commenting on the sovereign assurance given by the Government of India.

By way of an affidavit dated 18.04.2021, the Union Home Secretary had appraised the Bench that the Government of India is bound by the sovereign commitment made by it to the Republic of Portugal. Though binding, the assurance would come into effect only after 25 years expires on 10.11.2030 (considering Salem was deported in 2005). It was made abundantly clear that the plea made by Salem, at the present stage, was premature.

Advocate, Mr. Rishi Malhotra appearing for Abu Salem, submitted that Salem was detained on 18.09.2002 by the Portuguese authorities on account of a Look Out Notice and the same should be the reckoning time for considering the 25 years period and not when he was released from the Portuguese Court and taken in by the Indian authorities. Referring to the affidavit filed by the Union Home Secretary on 18.04.2022, he argued that though the Union Government had conceded that it was bound by the sovereign assurance, it had mentioned that the same would be abided by 'at an appropriate time subject to the remedies which may be available'.

Justice Kaul asked Additional Solicitor General, Mr. K.M. Nataraj, "I don't understand what is meant by remedies which may be available.'

He added -

"I don't understand some parts of the affidavit. The Home Secretary seems to tell us we should decide the appeal. It is not for him to tell us. What we have to do, we will do…I don't take it very kindly."

The Bench was of the view that if the appellant agrees not to argue the appeal based on the fact that the Union Government had decided to stand by its commitment, the Home Secretary is not in a position to still ask the Court to decide the appeal on merits.

The Bench agreed to hear Mr. Nataraj on the issue of set-off, i.e., whether the period when Salem was in custody in Portugal is to be excluded, while deciding the issue of sentence.

"In a custody case, the period starts from the day you are taken into custody, you seek to exclude the period when he was in custody in Portugal."

Mr. Nataraj emphasised that the sovereign commitment binds the two countries involved and the benefit of the same cannot be claimed as a matter of right by the accused. 

Justice Kaul expressed disappointment that the Union Government was reluctant to take a firm stand and the affidavit reflects the same.

"The thing is that you are not taking a stand. You say that international assurance will change from time to time. We will take our call…You gave an assurance. Ofcourse it is heinous crime, But, in order to extradite him you gave an assurance. You say assurance was given, but courts can take a different view…This Court having the power of A.142 has to be conscious of the fact that in your wisdom you had given an assurance. Therefore, all that was required to be said is 'we have given an assurance and will abide by it'. I don't understand what 'other remedies' you are referring to", the judge orally said.

Justice Kaul referred to certain portions of the affidavit which he thought was evasive -

"You say that the commitment would be abided with at an appropriate time. We asked you, you had to answer. There was no requirement for your Home Secretary to lecture us…The right is available today. How can he say that there is no question of the convict arguing based upon the assurance given."

Mr. Nataraj apprised the Bench that the Government was bound by the assurance only once the period of 25 years expires. Mr. Nataraj urged the Court to first decide from when the concerned 25 years period would run and then the other issues can be decided on the basis of that.

Justice Kaul stated," You cannot say that, we have to decide it today. Effectively what you are saying is that if he does not want to argue on merits, postpone the matter to a period beyond that."

The Bench noted that on 02.02.2002, Mr. Malhotra had submitted that the judiciary is also bound by the sovereign assurance. He had argued that the imprisonment term cannot extend beyond 25 years as per the assurance given by the Union Government. He stated that the TADA Court said that it was not bound by the assurance given by the executive. He beseeched that even if the TADA Court did not have the power, the Apex Court can pass necessary orders after seeking affidavit in this regard from the concerned authorities. The second plea, the Bench recorded, was whether there should have been a period of set-off - period of detention in Portugal to be taken into account or not.

With respect to the affidavit filed by the Union Government, the Bench noted in the order -

"The affidavits did not meet the requirement, except to the extent it stated that insofar the period of set off is concerned the appellant is not entitled to it. That is an issue to be debated before this court. On the first issue, we asked the Home Secretary to file an affidavit as clarity was not forthcoming. An affidavit was filed on 18.04.2022. The affidavit seeks to emphasise that it was a dastardly act conducted with premeditation in which the appellant played a role…He was extradited and brought to India. These powers are stated to be executive powers and would bound the executives of the respective states. But the judiciary, as the Constitution of India envisages, is independent in deciding the cases…Para 6 of the affidavit refers to the assurance given by letter dated 17.12.2002 as solemn assurance to the Government of Portugal by GoI."

The Bench made it clear that it does not appreciate the following submission in the affidavit -

"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."

It added -

"Once it is stated that the assurance is given there is nothing more or less to be said. No doubt it is for the Court to take a view as to the effect of the assurance. Let us say that it is the appropriate time for us to take a call on the issue. Thus, the sentence is superfluous. We also say that it is the decision of Union of India to honour the assurance when 25 years expires. We have to take a call on the effect of the assurance and we cannot postpone the hearing of the appeal on that basis. Nor is it permissible for the Govt. to say on affidavit that the appellant cannot raise this plea. The extradition was on this assurance and as a convict certainly he is entitled to raise the issue of solemn sovereign assurance…It is neither 'premature' nor based on 'hypothetical surmises'."

In June 2017, a TADA Court convicted 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 in the 1993 Bombay Blast case. Subsequently, in September, 2017, the Court sentenced him to life imprisonment.

While extraditing him, the then Deputy Prime Minister, Mr. L.K. Advani on behalf of the Government of India had given an undertaking to assure 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. Upon consideration, 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). Salem was finally deported in 2005.

The matter would be taken up next on 5th May, 2022.

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