The Supreme Court on Thursday reserved an order on extradited gangster Abu Salem's plea raising the issue that as per the extradition treaty between India and Portugal, his jail terms cannot extend beyond 25 years.
A bench of justices Sanjay Kishan Kaul and MM Sundresh reserved the order after both parties concluded their arguments.
The bench also sought to know from the government what is the starting point of detention.
Meanwhile, during the hearing, the court remarked that when it was reading some other cases from the UK, it found that India has never violated the extradition assurance.
Abu Salem's advocate apprised the Supreme Court of India that the Supreme Court of Portugal had stated that if the requesting state (India) exceeds the terms of the agreement, then the accused (Abu Salem) shall be extradited again back. Abu Salem's advocate apprised the SC that there is a violation of the terms of the agreement and assurance given to Portugal.
SC observed that the exercising of power by the executive and by the court is different.
Abu Salem's advocate also apprised the court that his client was in custody in Portugal since 2002. Abu Salem was also arrested on the virtue of a red corner notice, the lawyer said.
He also apprised the court that his extradition started in 2003 and went for almost 2 years and custody was handed over in 2005.
Centre had earlier submitted that the Central government honouring its assurance will arise only when the period of 25 years is to expire.
The Centre had said the compliance of the assurance given to the Portugal government during the extradition of gangster Abu Salem will be done at an "appropriate time" and the judiciary, as the Constitution of India envisages, is independent in deciding all cases in accordance with the applicable laws.
The Supreme Court was hearing the plea of Abu Salem which contended that as per the extradition treaty between India and Portugal, his jail terms cannot extend beyond 25 years.
The Home Secretary also clarified that the Government of India will abide by the assurances in accordance with the law and subject to the remedies as may be available at that stage.
Explaining the Extradition Act, 1962, the Centre, in its affidavit, said it is an Act enabling the executive of one State [the term "State" being used in the parlance of international law] to deal with another State to extradite the accused/ convict persons and these powers are executive powers and while exercising such powers, it is an inherent understanding that it would bind the executives of the respective States.
The government also said that before the said date, the convict appellant Salem cannot raise any arguments based on the said assurance.
The Centre Government remarked that the contention of the petitioner about non-compliance of assurance is premature and based on hypothetical surmises and can never be raised in present proceedings.
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 had 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 the death penalty nor be subjected to imprisonment for a term beyond 25 years.
He had 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 the sentence of not more than 25 years as the execution of the sentence was purely in the domain of Government.
The petitioner had 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 Salem for more than 25 years.
( With inputs from ANI )
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