NEW DELHI: The
Supreme Court said that the Centre was bound by “national commitment” given to Portugal to get back
Abu Salem, currently serving life imprisonment for his complicity in the 1993 Mumbai blasts, but said that the gangster cannot come out unless he has completed 25 years, which means he will have to be in jail till October 2030.
The Centre had given a solemn sovereign assurance on December 17, 2002 through the then deputy PM L K Advani to the effect that the government will exercise its powers to ensure that Salem was not given death penalty or sentenced for a term beyond 25 years if extradited by Portugal for trial in India.
Salem was handed over to the Indian authorities in November 2005.
The court reject Salem’s plea that the time he served in a Portugese prison for violating the country's Passport Act should be taken into account for calculating when he would complete the 25-year sentence.
A bench of Justices Sanjay Kishan Kaul and M M Sundresh passed the order after the Centre also agreed to honour the commitment. The bench rejected the government's plea that the court should not examine the issue as Salem had not yet completed 25 years and his plea was premature. The justices said they have settled the issue to ensure that there is no uncertainty in future.
Justices Kaul and Sundresh said it was not for the court to exercise any special privileges to commute or restrict the period of sentence of Salem but the government could exercise its power to remit his sentence under Sections 432 and 433 of the Criminal Procedure Code or to advise the President to exercise his powers under Article 72 of the Constitution to release him and honour the solemn commitment given to the Portugal authorities.
“Thus, on completion of the period of 25 years of sentence, in compliance of its commitment to the courts in Portugal, it is required that the Government of India advise the President to exercise its powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government exercise powers under Sections 432 and 433 of the CrPC. We do believe that there is a necessity of making this time-bound so that it does not result in an unending exercise,” said Justice Kaul who penned the judgment for the bench.
The court also rejected the plea of Salem that his detention period in Portugal be also considered, saying, “The criminal law of the land does not have any extra-territorial application. Thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country. The factual scenario is that the appellant was charged with having a fake passport. He was found guilty and convicted of sentence from September 18, 2002. This had nothing to do with the proceedings against him in India.”
Salem was granted conditional release for the remaining sentence in the fake passport case on October 12, 2005 and on the same day he was arrested for the offence committed in India and his custody was handed over to Indian authorities a month after.
“In view of the aforesaid facts and circumstances, we conclude that the detention of the appellant commenced from October 12, 2005 in the present case,” the court said. Now, Salem has to spend over eight more years in jail before being released.