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Supreme Court directs Centre to file affidavit in Abu Salem case within 21 days

The Supreme Court on Tuesday asked the Central government to file an affidavit in the Abu Salem case within 21 days.

The Division Bench of Justice Sanjay Kishan Kaul and Justice M.M. Sundresh heard a plea filed by gangster Abu Salem, serving life imprisonment for his role in the 1993 Mumbai serial blasts case, contending that his imprisonment cannot extend beyond 25 years, as per the terms of the extradition treaty between India and Portugal.

The affidavit filed by CBI told the Supreme Court that the Indian court is not bound by the assurance given in 2002 by the then deputy prime minister and home minister L.K. Advani to the Portugal court that gangster Abu Salem would neither be given a death sentence, nor imprisoned beyond 25 years.

During the hearing on Tuesday, the top court of the country asked the ASG, “Who has filed this affidavit? Is the government saying that the Court will not stand by international commitments? CBI is a prosecuting agency. You are trying to avoid taking a stand.

“You have to certainly take a stand on behalf of the government of India, whether you will stand by the international commitments made by the deputy Prime Minister.”

The Apex Court went on to observe that “In your political wisdom, you did something. This has far-reaching ramifications for the next time you want to extradite someone.”

Advocate for Salem argued that according to the mutual treaty, the maximum punishment in Portugal is 25 years. Now, the government is saying they will impose life imprisonment.

While observing that the issue was of international ramifications, the Bench directed the Union government through the Home Secretary to file a reasonable affidavit in 21 days and fixed April 10 as the next date of hearing.

In its 18-page affidavit submitted on Sunday, the CBI said that in the Solemn Sovereign Assurance, the provision of Section 34C of the Indian Extradition Act has been reproduced. There was a definite object and purpose behind this exercise. 

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It was made clear by reproducing Section 34C of the Extradition Act that in view of this provision, no Court in India would be empowered in this case on extradition of accused Abu Salem to award him death penalty.

It is pointed  out that in view of the mandate of Section 34C of the Extradition Act, the powers of this Court to award imprisonment for life in case of an offence punishable under Section 302 of the Indian Penal Code and Section 3 sub-section (2) Sub Clause (i) of the TADA (P) Act, 1987 have not been taken away.  On the contrary, it mandates that the Court shall substitute the death sentence by imprisonment for life in case of such fugitive criminal. This  aspect has been taken care of and considered, while giving Solemn 05 Sovereign Assurance by the then Deputy Prime Minister of India.

The affidavit added that while giving Solemn Sovereign Assurance, the “Independence of the Judiciary” has been given due importance. On perusal of the Solemn Sovereign Assurance that the Government of India was alive to the situation that it would not be in a position to give Solemn Sovereign Assurance that no Court in India shall award punishment of life imprisonment to the accused Abu Salem.  At the same time in further part of the Assurance , a specific reference has been made to the provisions of Article 72 (1) of the Constitution of India to emphasize that His Excellency , the President of India has power to grant pardon, reprieve, respites  or remission of punishment or to suspend , remit or commute the sentence of any person convicted of any offense/s.

“In order to further fortify the Assurance, it has been stated that in addition to the provision of Article 72 of the Constitution of India, Sections 432 and 433 of the Code of Criminal Procedure, 1973 confer the power on the Government to commute the  sentence of life imprisonment to a term not exceeding 14 years,”

-the affidavit said.

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It is mentioned in the affidavit that Solemn Sovereign Assurance given by the then Deputy Prime Minister of India is plain and simple assurance that in the case of Abu Salem, death penalty is out of question and if any other punishment is awarded as per the law by the Indian Courts, then the Government of India would exercise the powers under the Constitution of India, Extradition Act, 1962 and the Code of Criminal Procedure, 1973.

The role of Judiciary and the role of executive has been demarcated as per the Indian Constitution. The application / award of punishment and execution of the punishment are two different aspects.  The application / awarding punishment falls within the domain and jurisdiction of the Court. Once the punishment / sentence is awarded by the court, execution of the sentence falls within the exclusive domain, power and jurisdiction of the executive. 

The powers vested in the executive, while executing the sentence are independent.  The decision taken by the executive, while executing the sentence is beyond the scope of judicial review. In the facts and circumstances, in my domain, I have to apply the provisions of Section 302 of the Indian Penal Code and Section 3 sub 15 Section ( 2 ) sub Clause ( I ) of the TADA ( P ) Act , 1987 , as the  same stand and award the punishment provided under these two sections except the death penalty . 

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The Union of India in its domain and wisdom and particularly, executives in their wisdom and domain would be free to exercise its power in the matter of execution of sentence awarded by this Court, consistent with the Solemn Sovereign Assurance given by the then Deputy Prime Minister  of India on behalf of the Union of India to Republic of Portugal “, the affidavit reads.

Abu Salem was arrested in the Republic of Portugal for commission of the offense by him in the Republic of Portugal. Salem was convicted by the Court in Republic of Portugal and he was to undergo Imprisonment for four years and six months and the said period was expected to expire on 18.03.2007 , Vide order dated 12.10.2005 Judge of  Lisbon , granted conditional release to the accused Abu Salem for the remaining period of the sentence .The extradition proceeding continued from 2002 to 2005. The custody of the Accused Abu Salem was handed over to the Indian Authorities on 10.11.2005. Abu Salem was already undergoing the sentence awarded by the Court of Lisbon and , therefore , he is not entitled to pray before this Court for set off for that period of detention against the sentence that is awarded to him in this trial.  In the facts and circumstances, accused Abu Salem is not entitled for set off from the date of the order of the extradition dated March 28, 2003.

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