Treaty with Portugal may help Abu Salem escape life sentence
DELHI/MUMBAI: Despite a Mumbai court handing life sentence to extradited gangster Abu Salem for his role in the 1993 Mumbai blasts case, he may actually not spend more than 25 years behind bars because of a sovereign undertaking by India to Portugal while extraditing him in 2005.
On Thursday, the designated Terrorist and Disruptive Activities (Prevention) Act (TADA) court pronounced sentences against five of the six convicts in the case. The sixth convict, Mustafa Dossa, died after the special public prosecutor began his arguments on the quantum of sentence and sought capital punishment for him earlier this year. Tahir Merchant and Firoz Khan were sentenced to death, while life imprisonment was pronounced for Karimullah Khan. Riyaz Siddique got 10 years in jail.
Advocate Rishi Malhotra, who has represented Salem in the SC, said, “Salem was extradited from Portugal after giving an undertaking to Portugal that Salem will not be given a death penalty or sentenced to a jail term exceeding 25 years. Normally, a life term means the convict stays behind bars till the end of his life. But in this case, the TADA court has given him a life term which violates the undertaking given by the government of India.”
Though extradition terms specify conditions, such a clause cannot prohibit an Indian court from giving such a sentence. To make up for this, the government included a commitment that they would, if such a sentence were imposed, resort to legal measures to restrict it.
So the question is if the court was right in giving Salem a life term in spite of a sovereign undertaking. The answer to this was given by the Supreme Court in 2012 while dealing with Salem’s petition, where he argued that he cannot be tried for the offences which entailed death penalty as the same was the precondition agreed by the Indian government at the time of his extradition. The apex court in its judgment said Portugal cannot impose any pre-condition on Indian courts.
Advocate Sudeep Pasbola, who defended Abu Salem in the 1993 blasts case, said, “It is now for the government to see that undertaking given to Portugal government is not violated and it can easily be taken care of. The
government has powers of remission and pardon and to honour its undertaking, it can exercise powers and pardon Salem’s remainder of the sentence given by the trial court.”
Pasbola also believes that this life sentence can go on to be one of the important grounds for challenging the verdict in the SC.
This is not the first time that Salem has been sentenced to life.
Earlier in 2015, a special TADA court sentenced Abu Salem to life imprisonment and slapped a Rs8 lakh fine, for the murder of builder Pradeep Jain in 1995. Salem has been the only case of successful extradition by India of an accused from a European country. Hence, his case has always raised a discussion on the allegation of violations and its consequences if there are any.
Former Maharashtra advocate-general (AG) Shrihari Aney said the reasons for which Salem has alleged violation of extradition conditions comes into the picture only if the Indian government deliberately suppressed facts and cases known to them before. “If the government found new evidence against the accused after the extradition, the accused would be tried under fresh material under the Indian law and procedure of Indian judiciary. This cannot be a violation,” Aney said.
Senior counsel Ashok Mundargi said imprisonment for life is not a violation as such, because according to the treaty, Salem was not given capital punishment as Portugal had abolished death penalty in their country. “Under the criminal procedure code, though the imprisonment for life is for the entire life of the convict, the jail manual provides for various categories for imprisonment for life.
The categories start from imprisonment for 14 years and goes above, but not till death,” Mundargi said. It is the jail authorities that decide which category the convict falls under and it is for the state, or in case of the 1993 blasts, the Centre to take a decision.
Mundargi said in case of a breach, the only consequence would be that Portugal would consider the aspects before honouring any further requests.
The government has powers of remission and pardon and to honour its undertaking, it can pardon Salem’s remainder of the sentence given by the trial court