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TMI Blog2007 (12) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 request to the Additional Chief Metropolitan Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin 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 has no power to discharge and only remedy available to an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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 laws in both Contracting States by deprivation of liberty, including im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 been defined in Section 2(d) to mean a treaty or agreement made by India with a foreign State relating to the extradition of fugitive criminals, and includes any treaty or agreement relating to the extra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 documents stating the facts of conviction before any such Court shall be deemed to be duly authenticated if-- (a) the warrant purports to be signed by a Judge. Magistrate or officer of the State where the same was issued or acting in or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 27. Admittedly the learned Magistrate did not find any prima facie case in regard to Count Nos. 9, 16, 17, 19, 20, 22 and 23. Allegations against the Appellant 28. Documents received from the Government of United States of America show that the substance recovered and described as MDMA or ecstasy was 3,4-Methylendeioxymethamphetamine. The chemical composition of the dru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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 evidence as may be produced in support of the requisition of the foreign State as also on behalf of the fugitive criminal. It is open to the fugitive criminal to show that the offence alleged to have been committed by him is of political character or the offence is not an extraditable offence. He may also show that no case of extradition has been made out even otherwise. The Magistrate, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to hold him guilty at the trial. 38. Reliance has been placed by Mr. Vishwanathan, learned counsel for the appellant, on Land Acquisition Officer and Mandal Revenue Officer vs. V. Narasaiah : (2001) 3 SCC 530 wherein interpreting Section 51-A of the Land Acquisition Act this Court held that the certified copy of a registered sale deed would be admissible in evidence. The said decision, we may n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 stated earlier, both the parties led evidence. Instead of finding out whether there was sufficient evidence to make out a prima facie case, what the Magistrate did was to evaluate the evidence by an elaborate assessment of it and held, as if he was trying the case, that between the two versions the evidence of witnesses examined by the appellants was preferable to that led by the complainant, that the defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 :-: "41. It is obvious from the plain language of Section 5 of the "Act that the Central Government can direct any Magistrate to hold inquiry provided the said Magistrate would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction. It is not disputed that the offence alleged to have been committed by George in the letter of request by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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, therefore, of the opinion that it is not possible for us to allow the appellant to raise such a contention for the first time before us. Information viz-a-viz Evidence 46. The provisions of a statute, it is trite law, must be harmoniously construed. When a statute is required to be read with an International Treaty, consideration of the provisions contained in the latter is also imperative. On a conjoint reading of Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired 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 would apply which does not contemplate production of any oral evidence by the Central Government. No fact needs to be proved by evidence. What is necessary is to arrive at a prima facie case finding that a case has been made out for extradition from the depositions, statements, copies and other informations which are to be gathered from the official certification of facts and judicial documents that would include the indictment by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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