Supreme Court: In a big development, the bench of Sanjay Kishan Kaul* and MM Sundresh, JJ has directed that the infamous gangster/terrorist Abu Salem be released after the completion of 25 years of his sentence in terms of the national commitment as well as the principle based on comity of courts. Salem was convicted on 12.10.2005.

Crucial Facts to understand the decision

  • Abu Salem needs no introduction as he has a history of serious crimes. He has been a part of the crime syndicate and has been tried and convicted for offences under Sections 302, 307, 452, 506(ii) read with Section 120-B of the Penal Code, 1860, read with Sections 5, 27 of the Arms Act, 1959 read with Sections 3(2)(i), 3(2)(ii), 3(5) and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA).
  • He was also involved in the Bombay Bomb Blasts which resulted into enormous loss of life and loss of properties. He was alleged to have stored, distributed and transported illegally smuggled AK-56 rifles, hand grenades as well as boxes of magazines from the godown in Gujarat to Mumbai in a Maruti van which had specially crafted secret cavities and all this was done after conspiratorial meetings relating to the blasts. In order to evade the penal consequences of his actions, Salem left Mumbai and later entered Portugal under an assumed name on a Pakistani passport, which reflects from where the conspiracy and support may have emanated.
  • Salem having travelled on a fake passport to Portugal was convicted and sentenced on 18.09.2002. The said sentence would have been completed on 18.03.2007 without taking into consideration any remission or commutation or conditional release.
  • Salem served the sentence from 18.09.2002 to 12.10.2005 when he was granted conditional release for the remaining sentence after an assurance given by the Government of India that after his extradition, Salem would not be visited with death penalty or imprisonment for a term beyond 25 years.
  • Salem’s custody was handed over to the Indian authorities on 10.11.2005, the appellant was extradited to India from Portugal on 11.11.2005 and was arrested on 24.11.2005.

Why he needs to be released after completion of 25 years of sentence?

The affidavit of the Union of India through the Home Secretary is clear, at least, to the effect that they will abide by the assurance given by the Government of India to Portugal. Thus, on completion of the period of 25 years of sentence, in compliance of its commitment to the courts in Portugal, it is required that the Government of India advise the President of India to exercise its powers under Article 72(1) of the Constitution to commute the remaining sentence, or that the Government of India exercise powers under Sections 432 and 433 of the Cr.P.C.

Hence, the necessary papers be forwarded within a month of the period of completion of 25 years sentence of Salem.

Why did the Supreme Court gave this judgment 5 years before the completion of 25 years of Salem’s sentence?

The Court found it necessary to make this time bound decision so that it does not result in an unending exercise and, thus, the Government of India must exercise the aforesaid powers or render advice on which the President of India is expected to act, within a month of the period of completion of sentence.

“We say so also to respect the very basis on which the Courts of Portugal observed the principles of comity of courts by recognising that there is a separation of powers in India and, thus, the Courts cannot give any assurance. The corresponding principle of comity of courts, thus, has to be observed such that the Government of India having given the solemn assurance, and having accepted the same before us, is bound to act in terms of the aforesaid. We are, thus, taking a call on this issue now and do not want to leave it to any uncertainty in future. This is of course subject to any aggravating aspect of the appellant.”

Why the plea of set off did not impress the Court?

It was argued before the Court that the set off period should commence from 18.09.2002 when Salem was arrested pursuant to the Red Corner notice, or at worst from 28.03.2003, i.e., the date of the ministerial order when extradition was granted to Salem for various offences.

However, the Court observed that

“It cannot be lost sight that when reference is made in a set off for adjustment of periods, the reference is to proceedings within the country. The criminal law of the land does not have any extra-territorial application. Thus, what happens in another country for some other trial, some other detention, in our view, would not be relevant for the purposes of the proceedings in the country.”

In the case at hand, Salem was charged with having a fake passport and was convicted of sentence from 18.09.2002. This had nothing to do with the proceedings against him in India. His sentence would have been completed on 18.03.2007 de hors the aspect of remission or commutation. However, he was granted conditional release for the remaining sentence on 12.10.2005.

“The mere fact that there was also a detention order under the Red Corner notice was of no significance. He was again imprisoned from 12.10.2005 till 10.11.2005, i.e. when he was handed over to the Indian authorities. The period till 10.12.2005, when he was serving out the sentence, certainly could not have been counted. That leaves the period of less than a month only, which is really more of an academic exercise.”

Hence, if one looks from the perspective of detention of the case in India, the period commences only on his being detained at Portugal on 12.10.2005, albeit giving him benefit of a little less than one month.

[Abu Salem Abdul Kayyum Ansari v. State of Maharashtra, 2022 SCC OnLine SC 852, decided on 11.07.2022]

*Judgment by: Justice Sanjay Kishan Kaul


For Abu Salem: Advocate Rishi Malhotra

For State: ASG K.M. Nataraj

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