In another chapter in the 1993 Mumbai blast cases, six out of seven accused were convicted by the Terrorist and Disruptive Activities (Prevention) Act (TADA) court today for criminal conspiracy and under the TADA Act. This included Abu Salem who was also convicted under the Explosives Act, 1884 and Arms Act, 1959. Salem has been convicted under various provisions, at least one of which can attract a death sentence. However, Abu Salem might still not receive capital punishment due to an extradition treaty existing between the Portugal and India.
The extradition took place when Abu Salem managed to exit the US and enter Portugal through Lisbon. But beside a refuge, Abu Salem and his wife found themselves facing a five-year long imprisonment awarded by a Portuguese court on charges of entering the country illegally and residing there.
Word got out and CBI took action, sending a lawyer to Portugal requesting the return of Abu Salem and explaining how he had been charged with grievous offences by the Indian courts.
Cooperating with the Indian government, the Portuguese judiciary signed an extradition treaty with India wherein a clause stated that since Abu Salem has to complete his sentence, he cannot be awarded a death sentence by the Indian government. After seeking extradition under the United Nations Convention on Suppression of Terrorism of 2000 and signing the treaty with the Portuguese, India brought back Abu Salem.
How does India function under extradition laws?
The source of information regarding a fugitive criminal is either received by the country directly or through the General Secretariat of the ICPO-Interpol in the form of red notices. The police then receives the information from the Interpol Wing of CBI and the red notices are circulated to all state police and immigration authorities.
Once the information is received, the fugitive in extradition falls under the Indian Extradition Act of 1962. Under the Act, a treaty between India and a foreign state is required but in the absence of such a treaty, the Central government can treat any convention between India and the foreign state as an extradition treaty.
The power to put behind bars, discharge and issue a warrant against a fugitive lies with a first class magistrate or a presidency magistrate.
If an immediate arrest of a fugitive criminal is required, the Central government would then direct the Magistrate to issue a provisional warrant that is bound to expire in 60 days. In such a situation the fugitive criminal would be discharged if no request for his surrender or return is made (Section 34B).
The Central government has the power to not return or surrender the fugitive criminal to a foreign state and would have to prosecute the fugitive criminal in Indian court.
The Act also deals with the conflict in laws between two countries when a fugitive has committed an offence for which the punishment is a death penalty in India, but the punishment for the same offence is not followed by a foreign state, in such a case India would have to award a life imprisonment to such a fugitive criminal (Section 34C). The process of extradition is governed by the judiciary of the two countries involved wherein the principles of International laws apply.