The Delhi High Court on Monday observed that the habeas corpus plea of extradited gangster Abu Salem challenging his extradition by Indian authorities is not maintainable as the petitioner was awarded a sentence by a competent court.
The court has granted time to his counsel to take instruction to withdraw the plea.
The bench of Justice Sidharth Mridul and Justice AK Mendiratta said that they are of the view this petition is not maintainable and asked the counsel for the petitioner if he would withdraw the petition or they shall dismiss it.
Thereafter, Advocate S Hariharan sought time to take instructions to withdraw the petition.
The court adjourned the petition for May 2022.
Earlier, the counsel had sought four weeks’ time on the ground that another petition is pending before the Supreme Court. The Supreme Court had asked the Central Government to file an affidavit.
The counsel argued that the conviction and sentence awarded by the trial court has been challenged.
According to the treaty, the petitioner could not be sentenced for a period of more than 25 years but was awarded life imprisonment, which is in violation of the treaty and thus the sentence was illegal.
To which the bench said that if extradition is illegal, then he should not be tried here.
“The petition is not maintainable as the habeus corpus doesn’t lie against an order of conviction,” the bench said.
“Unless your conviction is set aside, can we say that your detention is illegal? It is not maintainable. You can withdraw the petition,” the bench told the counsel.
The counsel said he has no instructions to withdraw the petition and has sought time to take instruction to this effect as the petitioner, Abu Salem, is lodged in Taloja jail in Mumbai.
Earlier, the bench had orally observed that once a court of law held Abu Salem guilty, he could not say that the custody was illegal.
The bench had further observed that even if initially his detention was bad in law, after the conviction by a court of law, the custody does not remain illegal.
The plea had stated that in view of the breach of solemn sovereign assurance given by the respondents seeking the extradition of the petitioner and which formed the basis of his extradition to India.
The Hebeas Corpus petition of Gangster/Underworld don Abu Salem sought appropriate direction declaring his detention as illegal and to be released and repatriated to Portugal.
Last year, the Supreme Court of India had declined to entertain a petition of Abu Salem and had said, “We dismiss the plea under Article 32 with the liberty to approach High Court.”
In the apex court, the plea also sought a direction to transfer Salem from Taloja jail to Tihar jail so that amicus curiae can speak to him and procure some documents. Salem argued that the Indian authorities had violated the extradition treaty.
Salem, an accused in the 1993 Mumbai serial blasts, had been extradited from Portugal on November 11, 2005, after a prolonged legal battle.
The gangster is serving a life sentence in jail after being convicted in the 1993 Mumbai blasts that had killed 257 and injured 713 people.
He has also been sentenced to seven years of rigorous imprisonment in a 2002 extortion case by a Delhi Court. (ANI)
