From Our Bureau
NEW DELHI: The Supreme Court on Tuesday took exception t From o an affidavit by the Central Bureau of Investigation (CBI) that the solemn sovereign assurance given by the Indian Government to Portugal on the maximum sentence to Abu Salem while seeking his extradition as an accused in the 1993 Mumbai bomb blast case.
“The Union of India gives the assurance to a foreign country. Does it stand by it or not,” asked a Bench of Justices Sanjay Kishan Kaul and M M Sundresh. “It would have far reaching ramifications the next time you want someone to be extradited,” it warned.
Listing the matter on April 12, it sought an affidavit from the union home secretary within three weeks on the solemn sovereign assurance given by then Home Minister Lal Krishna Advani to the concerned authorities and the courts in Portugal.
In a previous hearing, the Bench had referred to the assurance not to sentence Salem to death or imprisoned for a term beyond 25 years. It had sought the Centre’s stand on Salem’s plea that the September 2017 judgment of a Mumbai TADA court sentencing him to life imprisonment violated the terms of extradition.
Justice Kaul took exception to the CBI filing the affidavit when it was actually sought from the Central Government.
In its affidavit, the CBI contended that the solemn sovereign assurance given by Advani cannot be construed as a guarantee or underetaking that no court in Indi would award the punishmeent provided under the prevalent Indian laws.
“It is not an affidavit. I want it. Who was asked to file the affidavit? It is a commitment by the Government of India. CBI is only a prosecuting agency,” Justice Kaul affirmed, wondering whether the government says it will not stand by the international commitment.
Justice Kaul accepted that the offence is serious, but the stand on the commitment made in its political wisdom should be evaluated by the Government, based on the far-reaching ramifications pertaining to extradition of fugitives in the future.
Advocate Rishi Malhotra, appearing on behalf of Abu Salem, submitted that in Portugal, the courts cannot award a sentence for more than 25 years. Based on the principle of reciprocity, the Goverenment of India had given solemn sovereign assurance to the Portugal courts that Abu Salen would not be awarded more than 25 years, he argued.
On 13.12.2002, the Government of India had issued a Gazette Notification in exercise of the powers conferred by Sub-section (1) of Section 3 of the Extradition Act 1962, directing that the provisions of the Act, other than Chapter III, shall apply to the Portuguese Republic with effect from 13.12.2002. The Government of India gave an undertaking under the signatures of the then Deputy Prime Minister, Mr. L.K. Advani that on the basis of provisions of the Constitution of India, Indian Extradition Act, and the Code of Criminal Procedure, 1973 assured the Government of Portugal that it will exercise its powers conferred by the Indian laws to ensure that if extradited by Portugal for trial in India, appellant Abu Salem would not be visited by death penalty or imprisonment for a term beyond 25 years.
Further, the Ambassador of India in Lisbon, by letter dated 25.05.2003 gave another assurance that in the event of extradition of Abu Salem, he will (i) not be prosecuted for offences other than those for which his extradition has been sought; and (ii) not be re-extradited to any third country.
In June 2017, a special Terrorism and Disruptive Activities Act (TADA) court of Mumbai had found Abu Salem, Mustafa Dossa, Karimullah Khan, Firoz Abdul Rashid Khan, Riyaz Siddiqui and Tahir Merchant guilty of conspiring and carrying out a string of bomb blasts across Mumbai in 1993, which ended up killing 257 people. Only accused Abdul Qayyum Karim Sheikh was acquitted since the prosecution failed to establish a conspiracy against him.
The prosecution case was that the accused hatched the conspiracy in Dubai to avenge the demolition of Ayodhya’s Babri Masjid on December 6, 1992 and decided to send arms and ammunition to India, which were transported and distributed by Abu Salem. On 12.03.1993, 12 bombs exploded at different locations across the city of Mumbai taking away 257 lives and injuring 713. Property worth Rs. 23 crore was damaged.
A charge sheet was filed against 129 accused, out of which 100 were convicted. Twelve of the accused were awarded death sentence, while 20 were sentenced to life in 2006. Later, the trial court commuted the death sentence to life for 10 of the accused.The court also noted that Abu Salem delivered AK-56 rifles to Bollywood actor Sanjay Dutt’s residence, who was also convicted under the Arms Act.
After the request for the extradition of Abu Salem was considered and examined by the authorities in Portugal and by the Court of Appeals, Lisbon, Supreme Court of Justice, Portugal and Constitutional Court of Portugal, extradition of Abu Salem was granted in 8 criminal cases (3 cases prosecuted by CBI, 2 by Mumbai Police and 3 by Delhi Police).
