Highlights
- Centre is 'bound' to honour commitment given to Portugal and release gangster Abu Salem
- Salem had said his sentence could not exceed 25 years as per assurance given by India to Portugal
- The assurance was given to Portugal by the then Deputy Prime Minister LK Advani
1993 Mumbai Blasts: The Supreme Court on Monday said the Centre is "bound" to honour its commitment given to Portugal and release gangster Abu Salem on completion of his 25-year sentence in the 1993 Mumbai blasts case.
Salem had said his sentence could not exceed 25 years as per the assurance given by India to Portugal for his extradition in 2002.
The assurance was given to Portugal by the then Deputy Prime Minister LK Advani that the gangster would not be visited by the death penalty or imprisonment for a term beyond 25 years.
However, a bench of Justices SK Kaul and MM Sundresh refused the plea of Salem that his detention in Portugal be considered while calculating 25 years of imprisonment and said that his detention period will start from October 12, 2005, when he was brought to the country after extradition.
"On the appellant completing 25 years of sentence, the Central Government is bound to advise the President of India for the 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.
"In view thereof, the necessary papers be forwarded within a month of the period of completion of 25 years sentence of the appellant. In fact, the Government can itself exercise this power in terms of Sections 432 and 433 of the CrPC. and such an exercise should also take place within the same time period of one month," the bench said.
The Centre had told the top court that the question of the Union of India honouring its assurance dated December 17, 2002, will arise only when the period of 25 years is to expire which is November 10, 2030.
The apex court agreed with the submissions of the Centre on the issue of the separation of Judicial and Executive powers and the scheme of the Indian Constitution cannot bind the Indian courts in proceedings under the Extradition Act.
"Thus, the courts must proceed in accordance with law and impose the sentence as the law of the land requires, while simultaneously the Executive is bound to comply with its international obligations under the Extradition Act as also on the principle of comity of courts, which forms the basis of the extradition.
"A reference to the solemn sovereign assurance on December 17, 2002, itself makes it clear that the assurance, which was given on behalf of the Executive in India was that if the appellant was extradited by Portugal for trial in India, he would not be visited with death penalty or imprisonment for a term beyond 25 years," the bench said.
The top court said that to achieve this objective the methodology placed before the Portugal Courts was that Article 72(1) of the Constitution conferred power on the President of India to grant pardon, reprieve, respite or remit punishment or suspend, remit or commute the sentence of any convict person convicted of any offence.
"This was with the assurance under Sections 432 and 433 of the CrPC which conferred the power on the Government to commute the sentence to life imprisonment with terms not exceeding 14 years," the bench said.
On the issue of Salem's plea seeking commutation, the apex court said looking into the grievousness of the offence in which the appellant was involved, there is no question for this Court exercising any special privileges to commute or restrict the period of sentence.
The top court said crime and punishment are something which has agitated the judicial minds and punishment cannot be disproportionately high or low.
"It should not be oppressive but should serve the purpose of deterrence against crimes in a society along with a sense of justice to the victim and their family.
"This is a delicate balance, which has to be kept in mind – an aspect recently discussed in the judgement of this Court.. the principle of just punishment is the bedrock of sentencing in respect of a criminal offence. We are faced with a somewhat similar scenario though with certain crucial nuances, which have to be considered," the bench said.
On February 25, 2015, a special TADA court awarded life imprisonment to Salem 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.
The top court had on May 5 reserved its judgement in the matter in which the Centre had argued that the judiciary is independent of the solemn sovereign assurance given to the Portugal government during the extradition of Salem and it is up to the executive to take a call on it at an appropriate stage.
Appearing for the Centre, Additional Solicitor General K M Nataraj had told the court that the "government is bound by the solemn sovereign assurance given by then deputy Prime Minister L K Advani to the Portugal government and it will abide by it at an appropriate time".
He had argued that the court is not bound by the solemn assurance and it can pass orders as per the law.
The bench had told Nataraj that the arguments made by advocate Rishi Malhotra, representing Salem, was 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 assurance given during his extradition.
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