The Supreme Court on Wednesday asked the Centre to respond to extradited gangster Abu Salem's plea raising the issue that as per the extradition treaty between India and Portugal, his jail term cannot be extended beyond 25 years.
A bench of justices Sanjay Kishan Kaul and MM Sundresh asked the Centre to reply file on the Salem plea.
Salem has raised issues that the 2017 judgment of a Terrorist and Disruptive Activities (Prevention) Act (TADA) Court sentencing him to life imprisonment was against the terms of the extradition treaty.
Salem's advocate Rishi Malhotra said that on December 17, 2002, the Government of India gave a Solemn Sovereign assurance to the Government of Portugal that if the Appellant Salem is extradited for Trials in India he would neither be conferred with death penalty nor be subjected to imprisonment for a term beyond 25 years.
He also said that the TADA Court were not according to the Extradition Order. He further added that the Government can exercise its powers under section 432, 433 CrPC to commute the sentence of Life imprisonment in order to bring down within the ambit of assurance of sentence of not more than 25 years as the execution of the sentence was purely in the domain of Government.
The petitioner also said that the government should ensure to bring down punishment consistent and commensurate with the assurances but it cannot be said that the Court's hands were tied in not awarding punishment to the Appellant Salem for more than 25 years.
He also mentioned that the issue of 'Set Off'. According to the Appellant Salem, though he was in custody for some offences of passport violation in Portugal since September 18, 2002, and was undergoing a sentence of 4 1/2 years, yet, the Appellant was detained also on September 18 2002 in pursuance to the Red Corner Notice issued by the Designated Courts, Mumbai.
"Even if the said date is not to be taken into consideration for the purposes of Set Off, the Ministerial Order dated 28.3.03 of the Ministry of Justice Portugal by which it had admitted the Extradition request of the Appellant of the Government of India to be tried for various offences ought to have been taken into consideration," the lawyer said.
The TADA Court, however, held that since the Appellant was released in the Portugal case on 12.10.2005, therefore, the custody for the purposes of Set Off would be counted from 12.10.2005.
The Appellant Salem as per the imprisonment certificate has undergone around 17 years of sentence by counting his Set Off period from November 2005 whereas his Set Off period should be counted from March 28 2003, the lawyer said.
( With inputs from ANI )
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