TMI Blog2007 (12) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The meaning of the word evidence has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate has greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates of America. Allegedly he had been running an event management company and promoting clubs into organizing entertainment, cultural events and shows in various parts of the United States of America for a long time. 4. The Government of the United States of America made a formal request to the Government of India for his extradition alleging that the appellant had conspired in aiding and abetting the sale and supply of MDMA, a controlled substance and other offensive substances. He is said to be one of the 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 Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned judgment. Contentions 9. Mr. Viswanathan, learned counsel appearing on behalf of the appellant, inter alia, would submit that having regard to the fundamental right of the appellant as envisaged under Article 21 of the Constitution of India, it was obligatory on the part of the learned Magistrate as also of the High Court to pass an order of extradition on the basis of the material which would constitute 'evidence' and as some of the documents upon which the reliance was placed by the respondent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take into consideration the documents which had been furnished by the Government of the United States of America in terms of the bi-lateral treaty. It was pointed out that the appellant in terms of the provisions of the said Act as also the bi-partite treaty, although was entitled to lead evidence in support of his defence as contemplated under the said Act, failed and/or neglected to do so and in that view of the matter the Magistrate was justified in passing the order of extradition. Learned counsel would contend 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Requested State. 4. A request for extradition relating to a person who has been convicted of the offense for which extradition is sought shall also be supported by : (a) a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that the person has been convicted ; (b) information establishing that the person sought is the person 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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the fugitive criminal accused or has been convicted is an offence of political character or is not an extradition offence. (3) If the Magistrate is of opinion that a prima facie case is not made out in support of the requisition of the foreign State, he shall discharge the fugitive criminal. (4) If the Magistrate is of opinion that a prima facie case is 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United States of America. The certificate issued by of Mr. Gilpin reads as under :- CERTIFICATE I, Ernestine B. Gilpin, Associate Director, Office of International Affairs, United States Department of Justice, United States of America, do hereby certify that the attached affidavit, with attachments, by Marietta 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 appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Maharashtra and others [2007 (10)) SCALE 391], the question has been referred to a larger bench. We would, however, proceed on the assumption that the doctrine of incorporation of reference as said to be containing in Section 7 of the Act would apply in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n enquiry stricto sensu may not, thus, be applicable in a proceeding under the Act. 37. Section 10 of the Act provides that the exhibits and depositions (whether received or taken in the presence of the person, against whom they are used or not) as also the 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 burde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Magistrate should commit the accused for trial if he is satisfied that sufficient grounds for doing so have been made out. It is difficult to apply those crucial words sufficient grounds in an extradition case. Therein, this Court considering the evidence 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 whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e i.e. end of trial, the defendant would not be called upon either to explain the prosecution case or to enter into his defence. There may not be any dispute in regard to the said proposition of law. 43. Consistent view of the courts of India in this behalf, 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. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made in the High Court. No ground has also been taken in this behalf in the special leave petition. No prejudice is shown to have been caused. It might have been better if the statute itself has been reproduced but then it has clearly been stated what 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cticable. The provisions of the Act confer power and jurisdiction upon the Magistrate as the case is not brought before it by the prosecutor or the complainant, but an enquiry is entrusted to the designated court by the Central Government. A power was, therefore, 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 est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute like the Code of Criminal Procedure. All the evidences envisaged under Section 10 of the Act have been produced before the learned Magistrate. The statute speaks of information specified therein to be the evidence for the purpose of the provisions of the said Act. The term information although is of wide import, must be read in the context of which it has been used.. Information may include statement which falls short of confession as well as statement which amounts to confession. [See R.V. Babulal ILR 6 All 509 at 537] In Commissioner of Income Tax vs. A. Raman and Co. [AIR 1968 SC 49], the expression 'information' has been held to mean instruction or knowledge derived from an external concerning facts or particulars, or as to law relating to a matter bearing on the assessment. We may also notice that in Hirachand Kothari vs. State of Rajasthan [AIR 1985 SC 998] this Court held that a statement by the referee as to the truth or otherwise regarding a question in a dispute, when the court needs information on such question, is information. 51. Section 10 of the Act clearly provides that any exhibit or deposition which may be received in evidence need no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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