1993 Mumbai blasts convict Abu Salem fought two rounds of litigation with govt and won both, thanks to a 2002 extradition ‘assurance’ given by India to Portugal.
The Supreme Court noted that Abu Salem’s history is “not a palatable one at all”. He was part of Dawood Ibrahim’s crime syndicate and allegedly involved in numerous crimes.
Among these were the 12 March 1993 Mumbai blasts, in which more than 250 people were killed. In its FIR, the Central Bureau of Investigation alleged that Abu Salem stored, transported, and distributed arms and explosives from Gujarat to Mumbai.
To evade arrest, Salem fled Mumbai and eventually made his way to Portugal using a fake Pakistani passport.
Meanwhile, another case against Abu Salem was registered in India on 7 March 1995, in connection with the murder of Pradeep Jain, a Mumbai builder. In addition to murder and extortion, Salem was also accused under sections of the Arms Act and the erstwhile Terrorist and Disruptive Activities (Prevention) Act, better known as TADA.
Abu Salem did not appear before court, so he was declared a proclaimed offender and later shown as an absconder.
A non-bailable warrant was issued against him, followed by an Interpol Red Corner notice, which alerts police worldwide to international fugitives, on 18 September, 2002.
On the same day, Salem was convicted and sentenced for travelling using a fake passport in Portugal. Separately, he was also detained there on the basis of the Red Corner notice.
India’s ‘sovereign assurance’
The Indian government submitted a request for Salem’s extradition from Portugal on 13 December, 2002.
Later that month, the Indian government gave a “solemn sovereign assurance” that Salem would not be given the death sentence or imprisonment beyond a term of 25 years.
On 28 March, 2003, Portugal’s Ministry of Justice allowed for Salem’s extradition under section 302 of the Indian Penal Code (murder), section 120-B IPC (criminal conspiracy) and section 3 (2) of TADA (terrorist activity). The order dropped the remaining sections of TADA and the Arms Act, which meant that he would not be prosecuted under those charges back in India.
Salem remained under judicial custody in Portugal until November 2005. He was finally handed over to the Indian authorities after his appeals against the extradition order were dismissed.
However, Portugal’s Supreme Court said that in case India breached its undertaking, Portugal could terminate the extradition. It further emphasised that under the “principle of speciality”, Salem should be tried only for the alleged offences mentioned in the extradition request.
Salem’s first ‘victory’
Within months of his transfer to India, Salem cried foul that India was violating the “principle of speciality” by prosecuting him under charges exceeding what had been decided in the agreement with Portugal.
He moved the apex court to quash these charges on the grounds that his extradition order barred his trial under the said sections. Salem made a similar plea before the Court of Appeal in Lisbon, claiming that the charges levelled violated the extradition order.
In September 2010, the SC ruled there had been no violation of the “principle of speciality”, but a year later, the Lisbon court gave a contrary finding and ordered the termination of the extradition agreement.
India appealed against this order but lost before the two higher judicial platforms — the Supreme Court of Portugal as well as the Constitutional Court.
Thereafter, the CBI rushed to the apex court and prayed that in the interest of comity of courts and to counter global terrorism, the agency should be allowed to withdraw the extra charges against Salem.
In August 2013, the Supreme Court allowed the CBI’s application to withdraw the additional charges. It was a victory for Salem, but the Mumbai trial court hearing the cases against him had other plans.
What Mumbai courts ruled
The prosecution accepted that the death sentence was out of the question for Abu Salem, but determined that he was still liable for life imprisonment.
The state held that the “solemn sovereign assurance” given by Advani could not serve as a guarantee that no court in India would award punishment under Indian law.
While awarding life sentences to Salem, the two trial courts maintained that to punish a convict fell within their jurisdiction. On the other hand, the execution of the punishment fell within the executive’s domain, leaving the government to decide on how it chose to abide by its assurance.
Up to Centre, not court to honour ‘assurance’
In response to Salem’s challenge in the SC, the Centre initially took a non-committal stand, but later filed an affidavit stating it would “honour” its assurance, but only once the period of 25 years expired.
Turning down this explanation, the Supreme Court said it was necessary to make it time bound so that it does not result in an “unending exercise”.
The SC noted that it was outside the powers of the court to commute Salem’s sentence, but it fell to the Government of India to “act in terms” of the assurance it had given Portugal.
Failure to do so, it noted, would give Portugal “the right to timely demand devolution of the person to be extradited through diplomatic or judicial channel”.
The SC, however, dismissed Salem’s contention that his period of sentence should be calculated from the day he was arrested in Portugal. His term of sentence would commence from November 2005, when he was officially handed over to the Indian authorities, the court said.
In view of this position, learned Senior Counsel for the Petitioner Seeks leave to amend to add union of India as a party respondent. leave to amend is granted. Amendment be carried out forthwith.
Issue notice to the added Respondent i.e Union of India, returnable on 26th March 2025. Learned Public Prosecutor seeks time to file affidavit in reply on behalf of Respondent No.1,2and 3. Permission is granted. The affidavit in reply shall be filed before the next date with copy to the other side.
stand over to 26th March 2025.