TaxTMI 
TaxTMI 
2007 (12) TMI 482
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....he members of a criminal organization involved in drug trafficking and money laundering. His organization has been found to be responsible for distributing millions of tablets of MDMA and laundering millions of dollars in drug proceeds. The organization is said to have purchased large quantities of MDMA from various sources in Netherlands and obtained them in USA through couriers and exchanged them for cash to be distributed to the lower levels of the organization, who in turn, would sell MDMA to buyers/consumers in Houston. 5. United States of America is a Treaty State. An Extradition Treaty was entered into between the Government of the Republic of India and the Government of the United States of America on or about 21st July, 1999. Proceedings 6. A warrant of arrest is said to have been issued by the U.S. District Court for the Southern District of Texas, Housing Division for the arrest of the appellant. Pursuant to the request made by the Government of the United States of America, he was arrested on 10th November, 2002. The Government of India in exercise of its power conferred upon it under Section 5 of the Extradition Act, 1962 (for short, 'the Act') made a ....
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....spondent did not satisfy the requirement of the said term within the meaning of Section 7 of the Act, the impugned judgment must be held to be perverse and in any event suffers from procedural irregularities. 10. The learned counsel would urge that the purported affidavits of the accomplice, Michael Ryan 'O' Mealey and Alan Lane Lackley, who have presumably been granted pardon could not have been relied upon by the learned Magistrate as 'evidence' for forming the basis for directing his extradition without corroboration thereof in material particulars. Summary of evidence disclosed by Mr. Keith Brown did not satisfy the statutory requirement of Section 7 of the Act which postulates an enquiry by the Magistrate into the case in the same manner as if the case were one triable by a Court of Session or High Court which would mean the provisions of the Code of Criminal Procedure 1898 being incorporated by reference in Section 7 of the Act would apply. 11. The Code of Criminal Procedure 1973 repealing and replacing the Code of Criminal Procedure 1898, Mr. Vishwanathan submitted, cannot be said to have any application whatsoever under the new Code as the Magistrate h....
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....ntend that it was for the Government of India to satisfy itself to make a fugitive criminal available to the United States of America by answering the indictment upon satisfying itself inter alia on the basis of the report to be submitted by the learned Magistrate. Mr. Malhotra would submit that while making an enquiry in terms of the provisions of the said Act an accused is not put to trial and the Magistrate is only required to form a prima facie view on the basis of the documents supplied in terms of Section 10 of the Act. The Treaty 13. The Treaty between the Government of Republic of India and the Government of the United States of America was entered into on 21st July, 1999. It was published in the official gazette on 14th September, 1999. By reason of Article 1 thereof the Contracting States agreed to extradite to each other, pursuant to the provisions of the Treaty, person who, by the authorities in the Requesting State are formally accused of, charged with or convicted of an extraditable offence, whether such offence was committed before or after the entering into force of the Treaty. 14. Article 2 defines extraditable offenses to mean an offence punishable under the....
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....n to whom the conviction refers ; (c) a copy of the sentence imposed, if the person sought has been sentenced, and a statement establishing to what extent the sentence has been carried out ; and (d) in the case of a person who has been convicted in absentia, the documents required in paragraph 3." 17. Article 10 provides that the documents accompanying an extradition request shall be received and admitted as evidence in extradition proceedings if in the case of a request from the United States, they are certified by the principal diplomatic or principal counsular officer of the Republic of India resident in the United States or they are certified or authenticated in any other manner accepted by the laws in the Requested State. 18. Article 17 provides that a person extradited under the Treaty may not be detained, tried or punished in the Requesting State except for the offenses enumerated therein. The Act 19. The Act was enacted to consolidate and amend the law relating to extradition of fugitive criminals and to provide for the matters connected therewith or incidental thereto. It is a special statute. 20. "Extradition treaty" has bee....
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.... made out in support of the requisition of the foreign State, he may commit the fugitive criminal to prison to await the orders of the Central Government and shall report the result of his inquiry to the Central Government, and shall forward together with such report, and written statement which the fugitive criminal may desire to submit for the consideration of the Central Government." 22. Section 10 deals with the receipt in evidence of exhibit, depositions and other documents and authentication thereof in the following terms :- "Section 10 - Receipt in evidence of exhibit depositions and other documents and authentication thereof (1) In any proceedings against a fugitive criminal of a foreign State under this chapter, exhibits and depositions (whether received or taken in the presence of the person against whom they are used or not) and copies thereof and official certificates of facts and judicial documents stating facts may, if duly authenticated, be received as evidence. (2) Warrants, depositions or statement on oath which purport to have been issued or taken by any Court of Justice outside India or copies thereof, certificates of, or judicial docum....
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....arietta I. Geckos, Senior Trial Attorney, Narcotic and Dangerous Drug Section, Criminal Division, United States Department of Justice, United States of America, is authentic and was duly executed pursuant to United State laws. These documents were prepared in connection with the request for the extradition of Sarabjeet "Rick" Singh from India. True copies of these documents are maintained in the official files of the United States Department of Justice in Washington, D.C. " 25. One Marietta I. Geckos has affirmed an affidavit stating about :- i) prosecutor's background and experience ; ii) procedural history ; iii) the charges and potential sentences ; iv) penalties ; v) statutory provisions ; vi) exhibits ; and vii) his professional opinion on the charges and made his conclusion as under :- 26. Indictments against the appellant are 27 in number which can briefly be classified as a) conspiracy b) possession of drugs ; c) drug trafficking ; d) money laundering ; and e) use of telecommunication facilities for drug trafficking. Report of the Learned Magistrate....
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.... the instant case. We may, however, hasten to add that the said Act being a self contained Code, the provisions thereof must be applied on their own terms. Application of the Statutory provisions 33. Sections 208 and 209 of the Code of Civil Procedure, 1898 contemplate taking of such evidence as may be produced in support of the prosecution or on behalf of the accused that may be called for by the Magistrate. Compliance of the principle of natural justice or the extent thereof and the requirement of law is founded in the statutory scheme. The Magistrate is to make an enquiry. He is not to hold a trial. Code of Criminal Procedure makes a clear distinction between an enquiry, investigation and trial. Authority of the Magistrate to make an enquiry would not lead to a final decision wherefor a report is to be prepared. Findings which can be rendered in the said enquiry may either lead to discharge of the fugitive criminal or his commitment to prison or make a report to the Central Government forwarding therewith a written statement which the fugitive criminal may desire to submit for consideration of the Central Government. Sub-section (2) of Section 7 envisages taking of such evide....
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....e copies thereof and official certificates of facts and judicial documents standing facts may, if duly authenticated, be received as evidence. Distinction must be borne in mind between the evidence which would be looked into for its appreciation or otherwise for a person guilty at the trial and the one which is required to make a report upon holding an enquiry in terms of the provisions of the Act. Whereas in the trial, the court may look into both oral and documentary evidence which would enable him to ask question in respect of which the accused may offer explanation, such a detailed procedure is not required to be adopted in an enquiry envisaged under the said Act. If evidence stricto sensu is required to be taken in an enquiry forming the basis of a prima facie opinion of the Court, the same would lead to a patent absurdity. Whereas in a trial the court for the purpose of appreciation of evidence may have to shift the burden from stage to stage, such a procedure is not required to be adopted in an enquiry. Even under the Code of Criminal Procedure existence of strong suspicion against the accused may be enough to take cognizance of an offence which would not meet the standard t....
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....nce brought on records, posed a question as to whether the same constituted a prima facie case, or that the voluminous evidence adduced therein was so incredible that no reasonable body of persons could rely upon it. 40. Existence of prima facie case or bringing on record credible evidence at the stage of commitment is again a requirement of a statute. Section 7 speaks of manner, the jurisdiction and power of the Magistrate. It does not set the standard of proof. What is necessary for passing a judicial order may not stricto sensu be necessary for making a report. 41. Reliance has also been placed on Rajpal Singh and others vs. Jai Singh and another : (1970) 2 SCC 206 wherein this Court opined : "Though the language of Section 209 differs from that in Section 207A, it is well settled that under neither of them has the Magistrate the jurisdiction to assess and evaluate the evidence before him for the purpose of seeing whether there is sufficient evidence for conviction. The reason obviously is that if he were to do that he would be trying the case himself instead of leaving it to be tried by the Sessions Court, which alone has under the Code the jurisdiction to try it. As stat....
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....f, however, appears to be that an enquiry conducted pursuant to the order of the Central Government is only to find out whether there was a prima facie case against the fugitive criminal for extradition to the treaty country. Mode and manner of enquiry has nothing to do with the rule in regard to standard of proof. (See Charles Gurmukh Shobhraj vs. Union of India and others : 1986 RLR 7 : 1986 (29) DLT 410 and Nina Pillai vs. Union of India : 1997 Crl. L.J. 2359 paragraphs 9 and 11). 44. Counsel for both the parties have relied upon the decision of this Court in Rosiline George vs. Union of India and others : (1994) 2 SCC 80. This Court therein noticed a commitment of this country to honour the international obligations arising out of the 1931 treaty. For the said purpose even the international statute like the Fugitive Offenders Act, 1881 was held not to be applicable. Municipal law of the land undoubtedly would apply. Section 10 of the Act provides that the documents are liable to be treated and received as evidence. What is, therefore, necessary for the purpose thereof is to supply the copies of the documents to the fugitive criminal. In Rosiline George this Court held :-: ....
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....was required to be proved and what was not required to be proved. We must bear in mind that the High Court was dealing with a writ petition filed by the appellant herein under Article 226 of the Constitution of India and not an appeal from the order of the learned Magistrate. The superior courts while entertaining a writ petition exercises a limited jurisdiction of judicial review, inter alia, when constitutional/statutory protection is denied to a person. But when it is required to issue a writ of certiorari, the order under challenge should not undergo scrutiny of an appellate court. Jurisdiction of the superior court in this behalf being limited inter alia to the question of jurisdiction, it was obligatory on the part of the petitioner to show that a jurisdictional error has been committed by the court while exercising the statutory powers. Contention in regard to prejudice in such a situation is required to be considered. A person informed in law and having taken all possible objections evidently knew that non disclosure of the Statute 846 in verbatim did not prejudice him. Had he been prejudiced he would have taken the said point at the outset. He did not do so. We are, the....
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....erefore, required to be conferred under a statute to the Magistrate, so that, it may have the requisite power and jurisdiction to make an enquiry. Its function are quasi judicial in nature; its report being not a definitive order. Further section does not stop at that. It refers to the committal proceeding only for the manner in which the same is to be conducted. While a court would commit an accused in terms of Section 208, it was required to arrive at a finding for the said purpose. It postulates that a finding has to be arrived at only for the purpose of discharge of an accused or his extradition upon formation of a prima facie view. The legal principle in this behalf has clearly been laid down in sub-sections (2), (3) and (4) of Section 7 of the Extradition Act. The said sub-sections cannot be ignored. Unlike Section 208 of the Code, no witnesses need be examined and cross-examined. If the State has been able to prima facie establish that a case has been made out for bringing an accused to trial, it will be for the accused to show that no such case is made out of the offences complained or for extradition. 48. In a case of this nature the second part of Section 10 of the Act....