On Friday, a special Terrorist and Disruptive Activities (Prevention) Act court convicted six men – Salem, Mustafa Dossa, Firoz Khan, Tahir Merchant, Karimullah Shaikh, Riyaz Siddique as guilty and acquitted Qayyum Shaikh. The TADA court also had avoided from giving him death in a murder case owing to an extradition accord. The prosecution is probably going to seek the death penalty for Dossa, Khan, and Merchant, yet they will most likely be not capable of doing as such for Salem owing to an extradition settlement between India and Portugal.
In 2015, he escaped in a murder case in the same special court of Judge GA Sanap. The authorities of Portugal had permitted his extradition in 2005 just on one condition that he won’t be given the death penalty or be jailed for over 25 years. While convicting Salem for murdering builder Pradeep Jain, the judge had observed that “it is a very ticklish issue and as such warrants a very difficult and balancing exercise. The pride and prestige of our country are 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.”
Salem and his better half were facing custody for entering Portugal criminally and living there. The murder of the builder was one of the eight cases for which Salem was extradited. The then special public prosecutor, Ujjwal Nikam, had looked for the death penalty. But after that, considering the provisions of section 34C of the Extradition Act in India, Nikam insisted a lifelong sentence for Salem. As per the Section 34C, on the account of extradition from a country which does not have a death penalty, if the crime is punishable with it, then instead of it, the accused is liable to lifetime imprisonment. The advocate of Salem had then battled as per the sovereign assurance was given by the Centre, Salem couldn’t have been sentenced under the charge of section 120 (B) (Conspiracy) and can’t be given imprisonment for more than 25 years. The demand for the death penalty or life detainment is a violation of the extradition order.
The court had mulled over the observation made by the Supreme Court of Justice, Portugal in its request date January 27, 2005. The order perused 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.”
However, the court convicted Salem for murder and sections under TADA to lifetime jail. While the agreement says that Salem can’t be jailed 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.”