The special Terrorist and Disruptive Activities (Prevention) Act court in Mumbai on Wednesday sentenced extradited gangster Abu Salem to life imprisonment in the builder Pradeep Jain killing case of 1995 on the charge of murder and criminal conspiracy.
Judge G A Sanap said that the court had to apply the law, while the government can exercise its power in the matter of execution of sentence.
"I have to apply the provisions of the law. The Union of India in its domain, particularly the executive in their wisdom, would be free to exercise its power in the matter of execution of the sentence," observed the court.
During the arguments, defence lawyer Sudeep Pasbola had said that as per the extradition treaty with Portugal, Salem cannot be given capital punishment or a jail term exceeding 25 years.
However, Special Public Prosecutor Ujjwal Nikam had argued that the executive assurance (to another country) doesn't bind the judicial pronouncement; the government will ischarge its executive assurance at the appropriate time.
"It is a very ticklish issue (since) pride and prestige of our country is involved, if any decision is taken contrary to the spirit of the Indian laws and the spirit of the solemn
sovereign assurance given by the then deputy prime minister of India, then very serious repercussions could follow," said the court.
The judge then held that the assurance given by the Union government would not stand in the way of the court to exercise its power and award the punishment under the law.
"Application of punishment and execution are two different things....The powers vested with the executive while executing the sentence are independent," observed the judge.
While awarding life sentence to Salem, the court referred to the judgement of the supreme court of Portugal. "Given that the government of India cannot guarantee that such sentence will not be applied by its courts...one can only request it to provide a guarantee that, should such sentence be imposed, then in order to restrict it, it will resort to all legal measures," that court had said.
Reacting to the judgement, Nikam told PTI that it was ‘historic’. "It's a historic judgment...for the first time a person who had hatched a conspiracy from outside India was extradited and punished," he said.
Salem's lawyer, advocate Saba Qureshi, said they will approach the appropriate forums in Portugal and European Union. "We have already filed application in Portugal's supreme court seeking directions to Indian government to execute its order of cancelling extradition," said Qureshi.
In January 2012, Portugal's supreme court had upheld an order which cancelled extradition of Salem for violation of deportation rules by Indian authorities by slapping new charges which attracted death penalty.
Sanap also handed out life imprisonment to Salem's driver Mehndi Hassan. Fellow accused Virendra Jhamb's sentence was set off against his stay in prison during the investigation.
Giving set-off to Jhamb on the ground of his age and deteriorating health, the court observed ‘no fruitful purpose would be served by sending him in jail’. Commenting on the probation officer's report, the court said it was very cryptic and vague and was not in favour of the accused, hence releasing Jhamb on its basis was out of question.
Jhamb's lawyer Shrikant Shivde had sought pardon in view of his client's age and his ailments.