The Supreme Court on Monday reserved its verdict on a plea filed by 1993 Mumbai serial blasts convict Abu Salem seeking premature release on the ground that, after accounting for the period spent in custody as an undertrial and the remission earned for good conduct in prison, he has already undergone more than the maximum 25-year imprisonment period assured by the Government of India to Portugal at the time of his extradition.
The Bench of Justice Vikram Nath and Justice Sandeep Mehta heard detailed submissions from Senior Advocate Rishi Malhotra, appearing for Salem, and permitted the parties to file written submissions, along with relevant judicial precedents, within one week before passing its final judgment.
During the hearing, Justice Mehta sought clarification on the mathematical computation of Salem’s actual period of incarceration. In response, Malhotra argued that the issue was not confined to statutory remission under Section 432 of the Code of Criminal Procedure, 1973, but concerned earned remission granted for good conduct in prison, which, according to Constitution Bench precedents, forms part of the actual sentence undergone and must be included while calculating the total period of imprisonment.
The senior counsel submitted that Salem was not claiming discretionary remission under Section 432 CrPC but only the benefit of remission earned through good conduct and prison labour. He relied on judicial precedents, including the Supreme Court’s decision in *Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka*, to contend that monthly, quarterly and annual earned remissions, as well as remission granted for prison duties, constitute part of the actual period of imprisonment.
According to Salem, when the period spent in custody as an undertrial is added to the earned remission, he has already undergone more than 26 years and nine months of imprisonment, exceeding the 25-year ceiling that India had assured Portugal during the extradition proceedings. Counsel further argued that although the designated TADA Court had directed prison authorities to grant him the benefit of set-off for the period spent in custody as an undertrial under Section 428 CrPC, the authorities had failed to implement that direction.
Malhotra informed the Court that Salem had already earned more than three years of remission for good conduct in prison. However, he submitted that the Bombay High Court had denied him the benefit on the ground that the 25-year period flowing from the extradition assurance was not a fixed-term sentence and, therefore, could not be reduced through earned remission. He argued that this interpretation was legally incorrect and contrary to settled law.
Towards the conclusion of the hearing, Justice Vikram Nath asked Salem’s counsel whether he sought a detailed judgment or a simple dismissal of the plea. Malhotra requested a reasoned judgment and sought an opportunity to complete his submissions. The Bench observed that it had heard the oral arguments and directed him to place his remaining submissions on record in writing within one week. The senior counsel also requested implementation of the TADA Court’s order granting undertrial set-off.
The matter relates to the assurances furnished by the Government of India to Portugal while securing Salem’s extradition in 2005. India had assured Portuguese authorities that Salem would neither be awarded the death penalty nor remain imprisoned for more than 25 years, in accordance with Portugal’s domestic law and India’s international treaty obligations. Salem was extradited on November 11, 2005, after being arrested in Portugal in September 2002 along with Monika Bedi.
In 2017, a Special TADA Court convicted Salem and sentenced him to life imprisonment for his role in the 1993 Mumbai serial blasts, which claimed 257 lives. He was convicted under Sections 120B, 302, 307, 326, 427, 435, 436, 201 and 212 of the Indian Penal Code, along with provisions of the Terrorist and Disruptive Activities (Prevention) Act, the Arms Act, the Explosive Substances Act and the Prevention of Damage to Public Property Act.
In its 2022 judgment in Abu Salem Abdul Qayyum Ansari v. State of Maharashtra, the Supreme Court held that the Union Government was bound by the sovereign assurance given to Portugal and directed that Salem’s incarceration could not extend beyond 25 years from the date of his extradition. The Court had also observed that the Central Government should advise the President of India to exercise powers under Article 72 of the Constitution to honour India’s international commitment.
Earlier this year, the Bombay High Court dismissed Salem’s plea seeking premature release after holding that the 25-year period would expire only in November 2030. The High Court ruled that the 25-year cap arising from the extradition assurance could not be further reduced by earned prison remission under the Maharashtra Prisons (Remission System) Rules, 1962 or by statutory remission under Section 432 CrPC.
It held that the 25-year limit itself operated as a substantial relaxation of a life sentence in fulfilment of India’s international obligations and that allowing further remission would defeat the purpose of the Supreme Court’s 2022 judgment and the extradition arrangement with Portugal.
The Supreme Court had also declined to grant Salem interim relief in February this year and had asked him to pursue appropriate remedies before the Bombay High Court. With the hearing now concluded, the apex court has reserved its verdict after permitting the parties to file additional written submissions and supporting authorities within one week.
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