It said that the stand on the commitment made by the Union of India would have wide ramifications the next time the country wants to bring back any fugitive.
The court said that it is not satisfied with the affidavit filed by the Central Bureau of Investigation [CBI] which said that the assurance given by India to Portugal on the maximum sentence during the extradition of Salem, a convict in the 1993 Mumbai serial blast case, is not binding on the Indian courts.
A bench of Justices Sanjay Kishan Kaul and M.M. Sundresh asked the union home secretary to file an affidavit specifying whether the Government of India will abide by the solemn assurance given by then deputy Prime Minister to Portugal.
It directed, “We are not satisfied with the reply affidavit. The question is whether the assurance given by the then Deputy Prime Minister on behalf of the government of India is to be abided or not. The government has to take a stand keeping in mind the international commitment made and the ramification of it. Therefore, we call upon the home secretary to file an affidavit in this regard. The affidavit shall be filed within a period of three weeks. List on April 12, 2022.”
At the outset, the bench told Additional Solicitor General K.M. Nataraj, appearing for CBI, that it is not the affidavit of agency it had wanted to be filed.
“Who has asked you to file an affidavit? CBI is just a prosecuting agency. We have asked you to inform us whether you are going to abide by the assurance given. Is the government saying that it will not stand by the international commitment?” the bench said.
The top court added that it accepts that the offences are serious but the stand on the commitment made by the Union of India in its political wisdom should be evaluated based on the wide ramification it would have.
“You have to clarify the stand taken by the Union government. We will ask the home secretary to file an affidavit. We understand, the offences are serious, but in your political wisdom, you made a commitment that you have to take care of it. It would have far-reaching ramifications the next time you want someone to bring to the country,” the bench said.
Advocate Rishi Malhotra, appearing for Salem, said that in Portugal the courts cannot award a sentence of more than 25 years, and based on the principle of reciprocity the Government of India has assured that in case Salem is extradited he would not be sentenced more than 25 years but now the Terrorist and Disruptive Activities (Prevention) Act [TADA] court has awarded life imprisonment.
It had granted four weeks to the Centre to respond on a plea by Salem claiming that the 2017 judgement of TADA court sentencing him to life imprisonment was against the terms of the extradition treaty.
Salem had contended that life imprisonment awarded to Salem is against the assurance given by the Indian government to Portugal from where he was extradited.
His plea said, “Even despite the categorical assurances by the Government of India that the appellant will not be sentenced for more than 25 years which assurances formed part of judicial proceedings right till the Supreme Court of Portugal and upon which the Extradition Order was passed, there was a complete and gross violation by the TADA Court when it imposed sentences of life imprisonment for certain offences.”
On February 25, 2015, the special TADA court had awarded Salem life imprisonment in another case for murdering Mumbai-based builder Pradeep Jain in 1995, along with his driver Mehndi Hassan.
The court, in January 2014, had dropped some charges against Salem in the case on the request of prosecution which said that some changes need to be withdrawn to maintain cordial relations between two sovereign countries – India and Portugal.
Salem, also a convict in the 1993 Mumbai serial blasts, was extradited from Portugal on November 11, 2005, after a prolonged legal battle.
The Supreme Court of Portugal, in 2012, had dismissed an appeal of the CBI which had challenged the termination of his extradition.
In June 2012, Salem was shot at in Taloja Central Jail in Navi Mumbai allegedly by gangster Devendra Jagtap alias JD, an accused in the murder case of advocate Shahid Azmi, who had represented a 26/11 Mumbai attack accused.
In June 2017, Salem was convicted and later awarded a life sentence for his role in the 1993 serial blast case in Mumbai.
Salem was found guilty of transporting weapons from Gujarat to Mumbai ahead of the blasts.
On March 12, 1993, the country’s commercial capital had witnessed an unprecedented attack with a series of 12 bomb explosions that took place one after another in about two hours.
The dastardly attacks had left 257 dead, 713 persons seriously injured, and destroyed properties worth crores.
In 2020, a Portugal court dismissed a plea of Salem claiming that the Indian government had violated the condition of his extradition.
