New Delhi, May 5 (PTI)The Supreme Court was told on Thursday by the Centre that the judiciary is independent of the solemn sovereign assurance given to the Portugal government during the extradition of gangster Abu Salem in 2002 and it is up to the executive to take a call on it at an appropriate stage.
A bench of Justices Sanjay Kishan Kaul and MM Sundresh reserved its verdict on a plea of gangster Abu Salem, challenging his life imprisonment in the 1993 Mumbai blasts case on the ground that his sentence could not exceed 25 years as Government is bound by the solemn assurance given to the Portugal government for his extradition.
Additional Solicitor General KM Nataraj, appearing for Centre, submitted “Government is bound by the solemn sovereign assurance given by then deputy Prime Minister LK Advani to the Portugal government and it will abide by it at an appropriate time”.
He said that the court is not bound by the solemn assurance and it can pass orders as per the law.
“Solemn sovereign assurance cannot be forced on the judiciary. The executive will act on it at an appropriate stage. We are bound by the solemn sovereign assurance in this regard. Judiciary is independent, it can proceed as per law”, he said.
The bench told Nataraj that the arguments made by advocate Rishi Malhotra, representing Salem, is that the court should decide on the solemn assurance and reduce his sentence from life term to 25 years or direct the government to take a call on the solemn assurance given during his extradition.
The top court said that the second issue is a set-off period as the argument made at the bar is that he was arrested in Portugal subsequent to the red corner notice issued on the orders of the court here and he has gone detention there till his extradition to India.
Nataraj said that he was in custody in a different case related to a fake Passport.
The bench said, “Let us assume there was no other case. If he was detained pursuant to this case in another country, then will that period be not counted in his sentence? Let’s consider another example if Vijay Mallaya is arrested in England and detained there and when he comes back and gets convicted, then the period spent in detention in England will not count”.
Nataraj said that earlier periods spent in detention in a case cannot be counted and there are judgements to this effect.
The bench then asked Nataraj what is the starting point of custody to which he replied that it will be when he was arrested post his extradition from Portugal.
Nataraj said that there are also judgements to the effect that a life sentence means entire life and there could be no remission.
He said that in this case section 428 CrpC (period of detention undergone by the accused to be set off against the sentence of imprisonment) is not attracted as it is a life sentence and is a case of section 433 (commutation of sentence by the state authority).
At the outset, Malhotra said that on December 17, 2002, the then Deputy Prime Minister had approached the Ministry for Foreign Affairs, Portugal concerning a formal Extradition request which fulfilled the requirements of Portuguese Law.
He said that the said assurance was in clear terms that if extradited by Portugal for Trial in India, Salem would not be visited by death penalty or imprisonment for a term beyond 25 years.
“The said solemn assurance dated December 17, 2002, was further reiterated by way of supplementary assurance by the Ambassador of India to the Government of Portugal on May 25, 2003, with a further assurance that the appellant will not be prosecuted for offences other than those for which his extradition has been sought”, he said.
He submitted that even the impugned Judgement of the TADA Court dated September 7, 2017, has clearly held that the Centre would ensure that while executing the sentence or punishment imposed by the Court in India, it would exercise its power and bring down the punishment consistent and commensurate with the assurance given to Portugal government.
“The TADA Court further held that the Union of India in its domain and wisdom 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”, he said.
Malhotra urged the court to read down the life sentence awarded to Salem to 25 years commensurate with the solemn sovereign assurance given by the government and not leave it to the executive to take a call at the appropriate time.
On April 21, the top court had taken strong exception to the “tenor” of an affidavit filed by the Centre on a plea by Salem, and said it is an “attempt to lecture the judiciary”.
On February 25, 2015, the special TADA court had awarded Salem life imprisonment in another case for murdering Mumbai-based builder Pradeep Jain in 1995, along with his driver Mehndi Hassan.
Salem, also a convict in the 1993 Mumbai serial blasts, was extradited from Portugal on November 11, 2005, after a prolonged legal battle.
In June 2017, Salem was convicted and later awarded a life sentence for his role in the 1993 serial blast case in Mumbai.
On March 12, 1993, the country’s commercial capital had witnessed an unprecedented attack with a series of 12 bomb explosions that took place one after another in about two hours. The dastardly attacks had left 257 dead and 713 people seriously injured, and destroyed properties worth crores. PTI MNL MNL RKS RKS
This report is auto-generated from PTI news service. ThePrint holds no responsibility for its content.