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1993 Mumbai serial blasts: Why Abu Salem is likely to escape capital punishment

Hindustan Times logo Hindustan Times 17/06/2017
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Can Abu Salem, convicted for his involvement in the 1993 serial blasts, be awarded capital punishment?

A special Terrorist and Disruptive Activities (Prevention) Act court on Friday held six men — Salem, Mustafa Dossa, Firoz Khan, Tahir Merchant, Karimullah Shaikh, Riyaz Siddique — guilty, and acquitted Abdul Qayyum Shaikh.

The prosecution is likely to seek death penalty for Dossa, Khan and Merchant, but they may not be able to do so for Salem owing to an extradition treaty between Portugal and India. In 2015, he escaped it in a murder case in the same special court of judge GA Sanap. Portugal authorities had allowed his extradition in 2005 only on condition that he will not be given capital punishment or be imprisoned for more than 25 years.

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The judge had observed while convicting Salem for murdering builder Pradeep Jain that “it is a very ticklish issue and as such warrants a very difficult and balancing exercise. The pride and prestige of our country is involved. Therefore, if any decision is taken contrary to the spirit of the Indian laws, and also contrary to the spirit of the solemn sovereign assurance given by the then Deputy Prime Minister L K Advani and understood by the Supreme court of Justice, Portugal in its judgment dated 27/01/2005, then very serious repercussions could follow.”

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Salem and his wife were facing imprisonment for entering Portugal illegally and residing there. The builder’s murder was one of the eight cases for which Salem was extradited. The then special public prosecutor, Ujjwal Nikam, had sought capital punishment. But later, considering the provisions of section 34C of the Extradition Act in India, Nikam demanded a life sentence for Salem. According to section 34C, in the case of extradition from a country which does not have death penalty, if the offence is punishable with it, then in place of it, the accused is liable for imprisonment for life.

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Salem’s advocate had then contended that according to the sovereign assurance given by the Centre, Salem could not have been convicted under the charge of section 120(B) (conspiracy) and cannot be given imprisonment for more than 25 years. The demand for capital punishment or life imprisonment is a violation of extradition order.

The court had taken into consideration the observation made by the Supreme Court of Justice, Portugal in its order date January 27, 2005. The order read as “given that the government of Indian union cannot guarantee that such a sentence will not be applied by its (independent) courts, one can only request it to provide a guarantee that, should such a sentence be imposed, then in order to restrict it, it will resort to all legal measures available for pardon, reprieve, respite or remission of punishment or similar measure of punishment.”

The court, however, convicted Salem for murder and sections under TADA to life imprisonment. While the treaty states that Salem cannot be imprisoned for more than 25 years, the court had observed that, ‘the union of India in its domain particularly the executives in their wisdom and domain would be free to exercise its power and the matter of execution of the sentence by the court.’

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