‘Not maintainable’: Delhi HC on Abu Salem’s habeas corpus plea

The Delhi High Court on Monday said that the habeas corpus petition of extradited gangster Abu Salem claiming that his detention was illegal is not maintainable.

Abu Salem, currently serving life imprisonment for his role in the 1993 Mumbai serial blasts case, was seeking his repatriation to Portugal in view of conventions governing the field and the treaty conditions.

A bench of Justice Sidharth Mridul and Justice A.K. Mendiratta said: “The petition is not maintainable as the habeas corpus doesn’t lie against an order of conviction.”

The court said Abu Salem was awarded a sentence by a competent court and said the habeas corpus petition can either be dismissed or the petitioner can withdraw it.

The court posted the plea for May, following the request of Abu Salem’s counsel, who sought time to take instructions to withdraw it.

On March 8, the Supreme Court had asked the Union Home Secretary to file an affidavit, whether the Centre is committed to adhering to the assurance given by the then Deputy Prime Minister L.K. Advani to Portuguese authorities, to not incarcerate gangster Abu Salem for more than 25 years while seeking his extradition.

The bench emphasised that not abiding by the assurance made to the Portugal authorities, could have wider ramifications and it may create problems while seeking the extradition of fugitives from other countries.

It had said it is not happy with the CBI’s reply in the matter and sought a response from the Home Secretary in three weeks.

The CBI, in its affidavit, had told the top court that an Indian court is not bound by the assurance given in 2002 by the then Deputy Prime Minister to the courts in Portugal that the gangster would not be imprisoned beyond 25 years after his extradition to India.

“The solemn sovereign assurance given by the then Deputy Prime Minister of India cannot be construed as a guarantee/ undertaking to assure that no court in India would award the punishment provided by Indian laws in force to the accused Abu Salem,” it said, adding that Abu Salem’s argument that imprisonment term cannot extend 25 years as per the assurance given is legally unsustainable.

Abu Salem had cited these assurances given by the Indian authorities before the courts in Portugal in 2002 and 2005 that he will not get death penalty or a jail term beyond 25 years. He was brought to India in 2005 and sentenced to life imprisonment for his role in the 1993 Mumbai blasts.

Advocate Rishi Malhotra, representing Abu Salem, argued before the bench that as per the principle of reciprocity in Portugal, the courts cannot award a sentence for more than 25 years. He added that based on the principle, the Indian government had given a solemn sovereign assurance to the Portugal courts that in case Salem is permitted to be extradited back to India, he will not be given punishment for more than 25 years.

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