The submission of the Union Home Secretary that Abu Salem’s plea against his conviction be first decided on merit & not the issue of honouring of the Centre’s assurance to Portugal for not keeping him in jail for more than 25 years as it will arise only in 2030, drew the ire of the Apex Court, which pulled up the officer on Thursday for “lecturing” the judiciary on how to proceed in the case.

A bench of Justice Sanjay Kishan Kaul and Justice MM Sundresh, at the very outset of the hearing, expressed its disapproval & objection to the “tenor” of the affidavit filed by Ajay Bhalla and said that it was not acceptable. The court said “the officer is no body to tell the court what to do & not to do”.

Bhalla in his affidavit told the Supreme Court that the Centre is bound by the assurance given to Portugal while seeking the extradition of the gangster in 2002, as per which Salem was not to be given death sentence or imprisonment for more than 25 years. The secretary in his reply also contended that the issue of compliance with the assurance is premature at this stage as his 25-year period would expire in Nov 2030. He said that the appeal filed by the gangster against his conviction be decided first.

In his affidavit, Bhalla said that “It is respectfully submitted that the government of India is bound by the assurance... The period of 25 years, which is mentioned in the assurance, will be abided by the Union of India at an appropriate time subject to the remedies which may be available. The question of the Union of India honouring its assurance will arise only when the period of 25 years is to expire. This date is November 10, 2030. Before the said date, the convict cannot raise any arguments based on the said assurance. Therefore, the contention of the petitioner about noncompliance of assurance is premature & based on the hypothetical surmises & can never be raised in present proceedings... The attempt of convict to club that assurance with merits of the present case is legally untenable as the appeal needs to be decided in accordance with Section 19 of the TADA, read with other provisions governing criminal procedure".

Taking objection to his statement, the Court said, “It is not for him to tell us what to do & what not to do. The home secretary is nobody to tell us what we should do”.

The bench said that the Court cannot force a convict to argue against conviction when he had accepted the conviction & just wanted to argue on sentence. It said that the court will rule when his custody starts as his lawyer Rishi Malhotra contended that his custody in Portugal be also considered while calculating the 25-year period.

The court said that the expedition was done on the basis of assurance of the Centre & the convict was allowed to raise the issue, & it is neither "premature nor based on hypothetical surmises" as alleged by the secretary. "We do not appreciate the tenor of the affidavit. If a convict accepts guilt then the Govt cannot tell the court to decide the case on merit," it said.

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