Explained: The Abu Salem extradition case, its background, and what SC has said

The second case related to Salem’s role in the Bombay blasts. Salem allegedly stored, distributed, and transported illegally smuggled AK-56 rifles, hand grenades, as well as boxes of magazines from a godown in Gujarat to Mumbai in a Maruti van which had specially crafted secret cavities. All this was allegedly done after conspiratorial meetings related to the blasts. Subsequently, he left Mumbai and entered Portugal under an assumed name on a Pakistani passport.

A designated TADA court in Mumbai declared him a proclaimed offender on October 15, 1993. Later, a non-bailable warrant was issued against him. The Interpol also issued a Red Corner notice for his arrest on September 18, 2002.

When was the extradition request made and what was the sovereign assurance given?

On December 13, 2002, the Government of India through the then Minister of State for External Affairs Omar Abdullah, submitted a requisition for Salem’s extradition to Portugal in nine criminal cases relying on the International Convention for the Suppression of Terrorist Bombings and on an assurance of reciprocity as applicable in international law.

The government gave a solemn sovereign assurance on December 17, 2002 through the then Deputy Prime Minister, L K Advani, that it will exercise powers conferred by Indian laws to ensure 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 Ambassador of India in Lisbon gave another solemn assurance on May 25, 2003 that if Salem is extradited, then he would not be prosecuted for offences other than those for which the extradition was sought, and he would not be extradited to any third country.

What happened in Portugal?

The Ministry of Justice of Portugal by an order dated March 28, 2003, allowed his extradition, but only for some of the offences in the GOI request. Salem challenged this before the Court of Appeal, Lisbon, which allowed his extradition for all offences in the request except those punishable with death or life imprisonment.

The Supreme Court of Portugal confirmed the order of the Court of Appeal, Lisbon on January 27, in view of the assurance given by GOI that Salem would not be visited with death penalty or imprisonment for a term beyond 25 years.

Abu Salem is taken to Taloja jail in 2015. (Express Photo: Prashant Nadkar)

What were the offences for which Portugal courts allowed the extradition?

His extradition was granted for the offences of Criminal conspiracy (Section 120-B IPC), murder (Section 302 IPC), attempt to murder (Section 307 IPC), mischief (Section 435 IPC), mischief by fire or explosive (Section 436 IPC), offence punishable under Sections 3(2) and 3(3) of TADA Act, Section 3 of Explosive Substances Act, and Section 4 of the Prevention of Damage to Public Property Act.

What happened after that?

Salem was extradited to India from Portugal on November 11, 2005, placed under arrest on November 24, 2005, and tried for the offences that he had been charged with.

Salem approached the SC with a writ petition alleging violation of conditions of extradition. He also moved the Lisbon Court of Appeal which, however, deferred proceedings until the SC gave its decision on his plea.

The SC, by its order dated September 10, 2010, said that Portugal had not included certain offences for which charges had been framed against the appellant by the designated court in Mumbai. It added Salem could still be tried for lesser offences, in addition to the offences for which he was extradited. The SC concluded there was no violation of the sovereign assurance.

On the basis of the SC’s finding, the Lisbon court held that there was violation, and that the authorisation granted for the extradition ought to be terminated. The GOI appealed, but the appeal was rejected by the Supreme Court of Portugal as well as its Constitutional Court, and thus, the termination of Salem’s extradition attained finality.

CBI then approached the SC of India seeking modification of the September 10, 2010 order and prayed for permission to withdraw certain charges levelled against Salem.

The agency submitted that in the interest of comity of courts and united fight at international level against global terrorism, GOI was making further efforts through diplomatic talks and the additional charges framed against Salem might come as an impediment in furthering such diplomatic talks. The CBI application was allowed by the SCI and the additional charges stood withdrawn.

What were the cases before the SC of India on which the July 11 decision came?

The court was dealing with two appeals by Salem, one emanating from the case in which he was charged with the murder of Pradeep Jain and the other against the life sentence imposed on him following his conviction in the Bombay blasts case.

What did the GOI say in response to Salem’s appeal?

The GOI said that that honouring the period of 25 years mentioned in the assurance will arise only when the 25 years were to expire, i.e., on 10.11.2030 and that the government would abide by the period of 25 years at an appropriate time subject to remedies, which may be available and that such a plea cannot be raised as an argument before the period elapses.

What did the SC say in its July 11 ruling?

A Bench of Justices S K Kaul and M M Sundresh said that looking into the grievousness of the offence in which Salem was involved, there is no question for this Court exercising any special privileges to commute or restrict the period of sentence imposed on him.

It however added that keeping with the assurances given to Portugal, “on the appellant completing 25 years of sentence, the Central Government is bound to advice the President of India for exercise of his powers under Article 72 of the Constitution, and to release the appellant in terms of the national commitment as well as the principle based on comity of courts”.

The court also rejected his prayer that the period spent in jail in Portugal from September 18, 2002 — when Salem who entered he was arrested following a Red Corner Notice – to December 10, 2005 when he was handed over to Indian authorities, be set off from the remainder of his sentence in India.

The SC noted that he was convicted in Portugal for entering the country on a fake passport and added that such setting off can only be when the proceedings have taken place within India for an offence and not outside.

The court said “it cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country. 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”.

It added, “we cannot accept the plea of the learned counsel for the appellant that the formal arrest on 18.09.2002 of the appellant under the Red Corner notice is the date to be taken into reckoning for serving out sentence in the present case or for that matter that the relevant date should be 28.03.2003, when the extradition proceeding started. In view of what we have said, the only case which could emerge was of taking the date when he was given a conditional release on 12.10.2005. Thus, if one looks from the perspective of detention of the case in India, the period commences only on his being detained at Portugal on 12.10.2005, albeit giving him benefit of a little less than one month…In view of the aforesaid facts and circumstances, we conclude that the detention of the appellant commence from 12.10.2005 in the present case”.