The Supreme Court on Thursday expressed strong objection over some of the statements made by the Home Secretary in his affidavit on Abu Salem case on honouring assurance given to Portugal authority, stating that he was virtually lecturing the judiciary, which was not acceptable.
A bench led by Justices Sanjay Kishan Kaul and MM Sundresh was hearing a plea filed by terror convict Abu Saleem stating that his imprisonment cannot extend beyond 25 years as per the assurances given by the government of India to Portugal during his extradition.
According to the affidavit filed by Union Home Secretary Ajay Kumar Bhalla, the question of honouring the assurance, which guaranteed that Abu Salem would not be visited by death penalty or imprisonment for a term beyond 25 years, would arise only when the said 25 years expires.
Replying to the above contention, the Bench said it will take assurance on record. Justice Kaul asked ASG Natraj appearing for the Centre, point out from the affidavit as to from where the period of 25 will start. In custody case, it starts from the day he was taken into custody.
ASG replied, We are taking it from the time he was held in custody in Portugal.
The affidavit further read that the Government of India is bound by the assurance dated 17.12.2002. The period of 25 years which is mentioned in the assurance will be abided by the Union of India at an appropriate time subject to the “remedies” which may be available.
Questioning this, Justice Sanjay Kishan Kaul asked in order to enable him to be extradited, you took a decision to bring him here by giving an assurance through a court process. This court has to be conscious of the fact that in your wisdom you have given an assurance. I don’t understand what the other remedies are?
The affidavit said that the question of the Union of India honoring its assurance dated 17.12.2002 will arise only when the period of 25 years is to expire. This date is 10.11.2030. Before the said date, the convict appellant cannot raise any arguments based on the said assurance.
In this the bench said, we have asked you, if you are standing by the assurance. You are saying that the consideration is “premature”. How can you it’s premature? The appeal is right for arguing.
The matter would now be heard on May 5, 2022.
In an affidavit dated 18.04.2022, Bhalla said that the judiciary, however, in our country is independent, decides cases on the basis of relevant laws and cannot be bound by any position taken by the executive.
“The judiciary, as the Constitution of India envisages, is independent in deciding all cases including criminal cases in accordance with the applicable laws without in any way being bound by any position taken by the executive.”
While referring to the 1962 Extradition Act, the Union Home Secretary said it is a law enabling the executive of one country to deal with another country to extradite accused and convicted persons.
According to the affidavit, the convict cannot raise any arguments based on the assurance, therefore the contention of the petitioner about non-compliance of assurance is premature and based on hypothetical surmises and can never be raised in present proceedings.
Bhalla added that having carefully examined the matter and the ramifications which the stand of Union of India will have, it is the respectful submission of the Central government that the Apex court may decide the appeal on merits.
On April 12, the Supreme Court objected to the failure of the Home Secretary to file his response on whether the Centre intends to honour the assurance given to Portugal while deporting gangster Abu Salem and granted the official a last opportunity to file it by April 18.
On March 8, the Top Court asked the Union Home Secretary to file an affidavit on whether the Union is committed to adhere to the assurance given by the then Deputy Prime Minister L.K. Advani to Portuguese authorities of not incarcerating gangster Abu Salem for more than 25 years while seeking his extradition.
The CBI also filed an affidavit in this matter stating that the Indian court is not bound by the assurance given in 2002 by the then deputy Prime minister that Salem would neither be given a death sentence nor imprisoned beyond 25 years.
The CBI believes that there is no merit in the contention of the appellant and the life sentence awarded by the trial court is legally correct and needs no interference.
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.