Salem not to be prosecuted under laws entailing death penalty

The Supreme Court Monday allowed CBI to withdraw the prosecution of mafia don Abu Salem under the provisions of criminal law that attracts death penalty.

A bench of Chief Justice P. Sathasivam and Justice J.Chelameswar also vacated the stay on the trial of the cases going on against Salem in several courts across the country.

"We permit the respondent (CBI) to withdraw the charges (iii) to (viii) as mentioned," Chief Justice Sathasivam said

He noted that the attorney general also "assured this court that they are in the process of withdrawing other charges too pending in various states against the appellant which are claimed to be in violation of the extradition order and the same is hereby recorded".

The charges that the Central Bureau of Investigation (CBI) has been allowed to withdraw against Salem include under various sections of the (now lapsed) Terrorist and Disruptive Activities (Prevention) Act, the Explosive Substances Act, 1908, the Arms Act, 1959 and the Explosives Act.

The court said that the offences for which Salem was "extradited to India are grave enough to even award the appellant with maximum punishment" and "no prejudice would be caused if the present application for modification is allowed".

The court however noted that allowing the modification petition cannot be construed as it reviewing the judgment in the light of the verdict of the Constitutional Court of Portugal.

"Both India and Portugal are two sovereign states with efficient and independent judicial system. As a consequence, in unequivocal terms, the verdict by the Constitutional Court of Portugal is not binding on this court but only has persuasive value," the judgment said.

Disposing off the petition by Abu Salem, the court ruled out his return to Portugal from where he was extradited to face trial for his alleged involvement in 1993 Mumbai serial bomb blast cases.

It said the extradition "still stands valid and effective in the eyes of law", and the Portugese court categorically held that their findings should not be construed as a direction to India to return Abu Salem but to serve as a legal basis for Portugal, should it choose to seek his return through political, or diplomatic channels.

The Portuguese courts, while permitting the extradition of Abu Salem, had said that he should not be awarded death sentence or imprisoned for more than 25 years.

The apex court verdict came on Salem's plea challenging his trial under Maharashtra Control of Organised Crime Act (MCOCA) and Explosive Substance Act which mandatorily attracts death penalty.

In the course of the hearing, the CBI had sought court's nod for withdrawing charges that conflicts with the assurance given by the Indian government at the time of the extradition.

The assurance had been made by the then deputy prime minister L.K. Advani in 2002. In 2003, the Indian ambassador to Lisbon also assured that Abu Salem will not be prosecuted for offences other than those for which his extradition has been sought and he would not be re-extradited to any third country.

Abu Salem, in his petition, contended that Portugal's top court had terminated the authorization for his extradition, holding the Indian government had gone back on its assurances.

Portugal's justice ministry cleared his extradition March 28, 2003. It was challenged before the Court of Appeals which partially confirmed the order July 14, 2004.

This order was then challenged before the Supreme Court of Justice of Portugal which Jan 27, 2005 allowed the extradition subject to the conditions made. It rejected a review petition March 3, 2005 and eventually Abu Salem was brought to India on Nov 11, 2005.

Abu Salem is facing trial for his alleged involvement in 1993 Mumbai serial bomb last case in which 257 people were killed and 713 were injured. Charge sheet was filed against 189 accused which included 44 absconders, including him.