Delhi District Court
Union Of India vs Amit Mohan Singh on 6 August, 2013
IN THE COURT OF SH. SUDESH KUMAR,
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE 01,
PATIALA HOUSE COURTS, NEW DELHI
UNION OF INDIA Vs AMIT MOHAN SINGH
DD NO. 11 A DATED 06.07.2012
PS IGI AIRPORT
CC NO. 2/1/13
06.08.2013
EXTRADITION INQUIRY REPORT
1. Vide this order, I propose to conclude the inquiry
conducted under The Extradition Act, 1962 regarding the extradition of
the fugitive criminal Amit Mohan Singh (hereinafter referred to as
fugitive criminal) a US National to the United States of America.
2. The Government of United States of America (hereinafter
called the requesting State) through its diplomatic channel, submitted a
request along with supporting documents and affidavits for extradition of
the fugitive criminal, who is wanted for trial in respect of certain criminal
offences, to the United States of America. The Central Government on
being satisfied on the basis of the material submitted by the
Government of United States of America, issued an order dated
-1-
19.09.2001 under section 5 of The Extradition Act, 1962 requesting this
Court to inquire into the above mentioned extradition request.
3. The documents as received from the requesting State
along with request of extradition of the fugitive criminal were supplied to
the fugitive criminal free of costs.
4. In this matter, as per record, the fugitive criminal was
arrested on 06.07.2011 on the basis of the INTERPOL's Red Corner
Notice bearing no. A1251/22011 by subsequent LOC bearing no.
2011104148 while he was attempting to fly to Bangkok, Thailand.
Subsequently, the fugitive criminal was produced in custody in the Court
and thereafter, a formal request for extradition was received by the
Central Government, Ministry of External Affairs on 19.08.2011 from the
requesting State i.e. United States of America.
FACTS OF THE CASE :
5. As is evident from the record, the allegations against the fugitive criminal briefly are that on 11.03.2009, he raped a 14 years old female in USA. The DNA sample obtained from the person of the victim also matched with the DNA sample of the fugitive criminal and the victim had also identified Fugitive criminal as her attacker. The fugitive criminal fled to India 5 days after the attack and was apprehended on 06.07.2011 at IGI Airport, New Delhi and was produced in this Court. -2-
6. As per the request received, a criminal indictment was filed in the Supreme Court for the County of Nassau in the State of New York on 17.08.2009 with specific violations charged against the fugitive criminal:
Count One charging Rape in the First Degree in violation of New York State Penal Law Section 130.35 with a maximum sentence of 25 years' imprisonment.
Count Two charging Rape in the Second Degree in violation of New York State Penal Section 130.30, with a maximum sentence of seven years' imprisonment;
Count Three Charging Sexual Abuse in the First Degree in violation of New York State Penal Law Section 130.65 with a maximum sentence of seven years' imprisonment;
Count Four charging Sexual Abuse in the Third Degree in violation of New York State Penal Law Section 130.55 with a maximum sentence of three months.
Count Five charging Endangering the Welfare of a Child in violation of New York State Penal Law Section 260.10 with a maximum sentence of one year imprisonment.
A warrant for the arrest of the fugitive criminal was also issued on 17.08.2009 by the Nassau County Supreme Court.
Furthermore, as per the request, the fugitive criminal was also wanted for violation of probation by the County Court of Nassau County in the State of New York, USA. He was convicted and -3- sentenced for specific violation under Superior Court information no. 1892N07 and the warrant of arrest for attempted criminal possession of a controlled substance in the 5th Degree in violation of Section 110.220.06 Sub Division 5 of the Penal Law of State of New York. On 21.12.2007, the fugitive criminal had pleaded guilty and was convicted for criminal possession of a controlled substance in the Supreme Court of Nassau County in the State of New York. On 08.02.2008, he was sentenced to 5 years of probation. The fugitive criminal however violated the probation when he failed to report to his probation officer and refused to provide a urine sample to test for the use of alcohol and controlled substance. As per prosecutor's affidavit produced on record Ex. CW 1/G, the maximum sentence which may be imposed upon fugitive criminal upon a finding that he is in violation of probation consists of 1.5 years of imprisonment and a fine upto US $ 5000.00.
7. As per the record, the arrest warrants were issued against the fugitive criminal on 17.08.2009 by the Order of the Supreme Court for the County of Nassau in the State of New York. Another warrants were issued against the fugitive criminal on 07.05.2009 by the Order of Nassau County Court in Mineola, New York.
8. The Union of India in support of the extradition inquiry has examined one witness i.e. Sh. D.K. Ghosh, Consultant Extradition, Ministry of External Affairs, UOI as CW 1. CW 1 in his testimony has -4- produced the following documents:
(i) The Extradition Treaty between The Government of Republic of India and the Government of United States of America which has been notified vide order GSR 633 (E) dated 14.09.1999 as Ex.
CW 1/A.
(ii) The Verbale Note No. 2011887/CONS dated 18.08.2011 vide which a request for extradition was received by the Ministry of External Affairs, Government of India from the requesting State has been produced as Ex. CW 1/B.
(iii) The requesting State forwarded documents i.e. Certificate of Authentication issued by the First Secretary Consular, Embassy of India, Washington DC certifying the documents sent by the requesting state and produced on record as Ex. CW 1/C bearing signatures of Mr. Piyush Goel at point A and the stamp of the Embassy of India, Washington DC at point B.
(iv) The documents sent in support of the request were duly certified by Hillary Rodham Clinton, Secretary of State, USA vide certificate Ex. CW 1/D.
(v) The documents annexed with the certificates were duly sealed with a ribbon and the seal was intact which included a certificate of Attorney General, United States Department of Justice produced as Ex. CW 1/E.
(vi) The documents annexed with the certificates were duly sealed with a ribbon and the seal was intact, further he produced a -5- certificate by the Associate Director, Office of International Affairs, Criminal Division, Department of Justice, USA as Ex. CW 1/F.
(vii) Prosecutors Affidavit as Ex. CW 1/G alongwith annexures A to J i.e. Certified copy of indictment under indictment number 1720N09 produced as Ex. CW 1/H1.
(viii) Certified copy of the certificate of conviction under Superior Court information Number 1892N07 as Ex. CW 1/H2.
(ix) Certified copy of the conditions of Probation under Superior Court Information Number 1892N07 as Ex. CW 1/H3.
(x) Certified copy of the Warrant of Arrest of Amit Singh under indictment No. 1720N09 duly signed by Nassau County Supreme Court Judge Frank A Gulotta, Jr. produced as Ex. CW 1/H4.
(xi) Certified copy of the Warrant of Arrest of Amit Singh under Superior Court Information No. 1892N07 signed by the Country Court Judge, George Pack of the County of Nassau, State of New York as Ex. CW 1/H5.
(xii) Photograph of fugitive criminal Amit Mohan Singh as Ex. CW 1/H6.
(xiii) Annexure G is the affidavit of detective Wayne Birdsall, Nassau County Police, Department of State of New York duly certified by the Superior Court Justice County of Nassau, State of New York, USA vide Ex. CW 1/H7 running into four pages.
(xiv) Annexure H is the affidavit of Probation Officer Simonique Phinn, Nassau County Probation Department, State of New York duly -6- certified by the Superior Court Justice County of Nassau, State of New York, USA as Ex. CW 1/H8 running into three pages.
(xv) Annexure I, is certified copy of the violation of Probation under Superior Court information Number 1892N07 running into two pages produced as Ex. CW 1/H9.
(xvi) Annexure J, is certified copy of the limited unsealing order for the indictment filed under indictment number 1720N09 produced as Ex. CW 1/H10 running into four pages.
(xvii) The documents duly authenticated and sealed were received by UOI through diplomatic channel vide note verbale Ex. CW 1/B dated 18.08.2011.
(xviii) The documents and the request alongwith the Order dated 19.09.2011 passed by UOI produced as Ex. CW 1/J was communicated by him to this Court for making an inquiry regarding extradition bearing his signatures at point A were filed in this Court.
The witness was cross examined by Counsel for fugitive criminal.
In his cross examination by the Defence Counsel for fugitive criminal, CW 1 stated that the note verbale and extradition request were received by them simultaneously on the same date. He admitted that there was no details in the 'note verbale'. He stated that his duties at MEA were to receive the Extradition requests from abroad and vice versa, negotiation of treaties with foreign countries and service of summons on the persons who were residing outside the geographical -7- limits of India. He admitted that the certificate Ex. CW 1/F was not bearing the official seal of Embassy of India or the official of Government of USA. He stated that he was not aware as to what documents were required for the purpose of filing an indictment in case of 'rape' in US Courts. He admitted that no forensic evidence/scientific evidence or MLC formed a part of the record.
9. No other witness was examined by the UOI.
10. In his defence, an application was filed by the fugitive criminal seeking to examine Officers of Ministry of External Affairs who received Extradition request, who took the decision u/s 5 of the Extradition Act and the person who appointed CW 1 Mr. D.K. Ghosh to depose before this Court, however, the said application was dismissed by my Ld. Predecessor vide order dated 04.02.2013 with the observation that the complainant has already examined Mr. D.K. Ghosh as witness from UOI. Thereafter, the matter was fixed for final arguments. Scope of Inquiry
11. As far as the scope of inquiry in extradition proceedings is concerned, when the Central government receives a requisition for surrender of a fugitive criminal, it issues an order to a Magistrate to inquire into the case under section 5 of the Act. In Nina Pillai and others Vs. Union of India, 1997 Crl. L.J. 2358, the Hon'ble High Court had the occasion to consider the scope of inquiry to be -8- conducted by the Magistrate under the Act. It was held: "It is now fairly well settled that the Magisterial inquiry which is conducted pursuant to the request for extradition is not a trial. The said inquiry decides nothing about the innocence or guilt of the fugitive criminal. The main purpose of the inquiry is to determine whether there is a prima facie case or reasonable grounds, which warrants the fugitive criminal being sent to the demanding state. The jurisdiction is limited to the former part of the request and does not concern itself with the merits of the trial. Whether offence is Extraditable ?
12. Before considering the request of the requesting State for the extradition of the fugitive criminal it has to be ascertained whether the offence alleged against the accused is extradition offence. The extradition offence has been defined in The Extradition Act, 1962. When a valid Treaty exists between the requesting State and the requested State in that case the extradition offence would be as defined in the Treaty, if the offence is not covered within the definition provided under the Extradition Act.
Section 2 (c) of the Extradition Act, 1962 defines an extradition offence as follows :
(c) "extradition offence" means -9-
(i) in relation to a foreign State, being a treaty state, an offence provided for in the extradition treaty with that State ;
(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence.
13. In the present case since a Treaty exists between the requesting State and the requested State which has been placed on record the definition of the extradition offence as provided in the Treaty would be applicable in view of the provisions in Section 2(c) (i) of The Extradition Act, 1962.
14. The Extradition Treaty defines the extraditable offences in Article 2 as offences punishable under the laws of both contracting states by deprivation of liberty, including imprisonment, for a period of more than one year or by more severe penalty.
15. A combined reading of the definition of extradition offence in Section 2(c) of The Extradition Act, 1962 and in Article 2 of The Extradition Treaty would show that the extradition offence must satisfy that it is punishable under the laws in both contracting States and punishable with imprisonment for more than one year. -10-
16. Keeping in view the definition of the extradition offence as provided in The Extradition Act, 1962 and Extradition Treaty, one has to consider the nature of the offence alleged against the fugitive criminal. It is pertinent to mention that to understand the real nature of the offence the substance of the allegations are to be considered and not the terminology.
17. In the present case, the fugitive criminal has been charged on five counts:
(i) Rape in the first degree in violation of New York State (with a maximum sentence of 25 years' imprisonment).
(ii) Rape in the second degree in violation of New York State (with a maximum sentence of seven years' imprisonment)
(iii) Sexual abuse in the first degree in violation of New York State (with a maximum sentence of seven years' imprisonment)
(iv) Sexual abuse in the third degree in violation of New York State (with a maximum sentence of three months)
(v) and one count of endangering the welfare of a child in violation of New York State (with a maximum sentence of one year imprisonment)
18. Further, the fugitive criminal is also wanted for violation of condition of probation by the County Court of Nassau in the State of New York. The fugitive criminal pleaded guilty and was convicted for -11- criminal possession of a controlled substance in the Supreme Court of Nassau County. He was sentenced to five years of probation. He violated the probation as he failed to report to his probation officer on two occasions and refused to provide a urine sample for conducting test for use of alcohol and controlled substances. A warrant was issued by the County Court of Nassau, New York for the said violation of conditions of his probation and to serve his remaining sentence for his conviction.
19. Counsel for the fugitive criminal after referring to the schedule of Extradition Act, 1962 which provides for the offences which are not to be regarded as offences of a political character argued that the offence of rape has not been mentioned in the schedule and hence it will be deemed to be an offence of political character. However, as already observed by my Ld. Predecessor in his order dated 05.08.2011, the bare reading of section 31 (2) (3) of the Extradition Act shows that the offences specified in the schedule were not exhaustive regarding the political character of the offences and even if the offence of rape is not mentioned in it, it cannot be termed as an offence having the colour of political character.
20. In this regard, I also take support from the observations made by the Hon'ble Supreme Court in Rajender Kumar Jain and others Vs State through Special Police Establishment and others, -12- 1980 (3) SCC 435, wherein, it was observed:
"We may now consider Shri Ram Panjwani's argument that the Criminal law of India does not recognise 'political offences' and so there cannot be withdrawal from a prosecution on the ground that the offences involved are 'political offences'. It is true that the Indian Penal Code and the Code of Criminal Procedure do not recognise offenses of a political nature, as a category of offences. They cannot, in the ordinary course of things. That does not mean that offences of a political character are unknown to jurisprudence or that judges must exhibit such a naivette as to feign ignorance about them. Offences of a political character are wellknown in International Law and the Law of Extradition. The Indian Extradition Act also refers to offences of a political character." For our present purpose it is really unnecessary to enter into a discussion as to what are political offences except in a sketchy way. It is sufficient to say that politics are about Government and therefore, a political offense is one committed with the object of changing the Government of a State or inducing it to change its policy. Mahatma Gandhi, the father of the -13- Nation, was convicted and jailed for offences against the Municipal laws; so was his spiritual son and the first Prime Minister of our country; so was the present Prime Minister and so were the first President and the present President of India. No one would hesitate to say that the offences of which they were convicted were political. Even as we are writing this judgment we read in the morning's newspapers that Kind Birendra of Nepal has declared a "general amnesty to all Nepalese accused of political changes". The W.P. Crl. 755/2011 Page 8 of 17 expression 'political offence' is thus commonly used and understood though perhaps 'political offence' may escape easy identification."
21. As observed by the Hon'ble Supreme Court, a political offence is one which is committed with an object of changing the Government of the State or induce to change its policy or an attempt to do the same. An offence of rape or an offence of criminal possession of a controlled substance as alleged cannot be considered as a political offence by any stretch of imagination. Even, if it is not mentioned in the offences specified in the schedule of the Treaty. The schedule is not exhaustive regarding the political character of the offence's. The offence of rape cannot be termed as having the colour of political -14- character in the present inquiry.
22. The offence of rape is provided in corresponding Sections 375 and Section 376 Indian Penal Code. It is provided that for an offence of rape, the accused could be punished for a term not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine.
Fugitive Criminal is also wanted to stand trial for violation of probation. He was sentenced to five years of probation as he was found guilty of criminal possession of a controlled substance. As per the documents placed on record, he was charged and sentenced for the following offences:
Section 220.06 Sub Division 5 of the New York State Penal Law which provides as under:
A person is guilty of criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses cocaine and said cocaine weighs five hundred milligrams or more. Criminal Possession of a Controlled Substance in the Fifth Degree is a Class D Felony.
Section 110 of the New York State Penal Law provides as under:
A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.
-15-
The corresponding provisions for the offence of possessing any Narcotic Drugs or Psychotropic Substances Act, 1985 are provided in Section 8 and Section 21 of the Narcotic Drugs or Psychotropic Substances Act, 1985.
Section 21 of NDPS Act provides:
Punishment for contravention in relation to manufactured drugs and preparations: Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufacturers, possesses, sells, purchases, transports, imports interState, exports interState or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to -16- two lakh rupees:
As per Section 21, hence, the punishment provided for the offence of possessing Narcotic drugs or psychotropic substance is rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both where the contravention involves small quantity i.e. Upto two grams as provided in the schedule 2 of NDPS Act vide entry at serial no. 27.
From the abovesaid however, it is clear that offence of rape u/s 376 IPC is punishable for a term not less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. Further in regard to the offence of violation of probation as per Section 9 of the Probation of Offenders Act, 1958, in case it is found that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, he may be sentenced to the punishment for his original offence. In the present case however, punishment is provided under section 21 of the NDPS Act for possession of a controlled substance which is rigorous imprisonment for a term which may extend to six months in case contravention involves small quantity. The allegations against the fugitive criminal are that he was in possession of cocaine more than 500 milligrams and the same comes under small quantity. Even if it is assumed that the quantity involved is upto 2 grams i.e. coming under small quantity, as per Article 2 (5) of the Extradition Treaty between two countries, if extradition has been granted for an extraditable offence, it shall also be granted for any -17- other offense specified in the request, even if the latter offense is punishable by less than one year's deprivation of liberty, provided that all other requirements for extradition are met.
In the present request, offence for rape is certainly an extraditable offence and without any colour of political character. The other offence can be considered as an extraditable offence under Article 2 (5) of the Extradition Treaty in case all other requirements for extradition are met with.
23. In his arguments, the foremost contention raised by the Counsel for the fugitive criminal is that the provisions of Article 9 (3) (c) and 4 (a) & (c) of the Extradition Treaty which were mandatorily contemplated in the said Articles have not been complied with by the requesting State.
24. Counsel for the fugitive criminal has vehemently raised two contentions against the request made by the United States of America.
Firstly, he contended that as per Article 9 (3) of the Treaty, the request shall be accompanied by such evidence as according to law of the requested state would justify his committal for trial as it has been committed in the territory of the requested state.
He stated that in the entire records pertaining to the request, there is no evidence as according to the law of India which would justify his committal for trial. Only issuance of warrant of arrest is -18- not enough to proceed with the Extradition request. The provisions of Article 9 of the Treaty are mandatory in nature and it does not give any discretion to any authority to defy the procedure of Extradition.
He contended that in India to justify the committal for trial of an accused, filing of the chargesheet alongwith requisite material such as copy of FIR, statement of prosecutrix, any eye witness, any circumstantial evidence, medical evidence etc. was necessary.
25. He contended further that the Extradition request is not accompanied with any medical evidence, police report, complaint and statement of prosecutrix which was prepared and filed by the Investigation agency before any competent court of law at USA. No document has been annexed to show that the Competent Court at USA has taken cognizance in the present matter. There was no evidence on record to show that the concerned Court at USA is competent to try the offence as alleged in the present case. The documents received in pursuance to the request of extradition of the fugitive are not complete and lack material evidence as the following documents were missing in the request for extradition.
(a) Supporting Affidavit executed by the Supreme Court for the County of Nassau in the State of New York for the extradition request;
(b) Original/Certified copy of the Complaint;
(c) Copy of FIR, duly countersigned by the competent Judicial -19- authority;
(d) Original/Certified copies of the Evidences Like: Medical Report of the Complainant and of Accused, Statements of the Complainant and witnesses, DNA matching report;
(e) All the documents are not attested/authenticated by the concerned Court.
He again pleaded that there was no material evidence in the form of medical records and statements of witnesses relying upon which the criminal case has been setup in the requesting state against the applicant.
Secondly, he contended vehemently that as per Article 9 (4) (c), no copy of the sentence imposed upon fugitive criminal has been produced on record and neither there is a statement made to the effect that the copies are not available, copy of order on sentence is also not produced on record, hence, there is no compliance of the mandatory requirements.
26. Counsel for the fugitive criminal quoted the following Judgements in support of his contentions particularly referring to the observations as mentioned below. He referred the observations made by the Hon'ble High Court in Smt. Nina Pillai and others v. Union of India and others, 1997 Crl. L.J. 2359 wherein it has been observed that;
"The whole purpose is to apprehend or -20- prevent the further escape of a person who is accused of certain offences and/or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. The Act contains sufficient safeguards in the procedure to be followed in the inquiry by the Magistrate to protect the fugitive criminal."
In Kamlesh Babulal Aggarwal v.
Union of India (UOI) and another, 2008 (104) DRJ 178, it was observed that:
"In our opinion, the power of the Magistrate in conducting an inquiry under Section 7 of the Act is akin to framing of the charge under Section 228 of the Code of Criminal Procedure. The requirement of Section 228 also is of a prima facie case. If the court is satisfied that a prima facie case is made out for proceeding further (trial), then a charge has to be framed. The sifting of evidence at this stage is permissible only for a limited purpose to find out a prima facie case but the court cannot decide at this stage that the witness is reliable or not."
27. It has been argued by the Counsel for fugitive criminal that there was no evidence produced on record by the requesting State on -21- the basis of which, a charge can be settled against the FC. He further referred to Sarabjit Rick Singh Vs Union of India Criminal Appeal No. 1705 OF 2007 {Arising out of SLP (Crl.) No. 178 of 2007}, wherein it was observed that:
"Article 9 (3) of the Treaty says that the request for extradition should be supported by such information as would justify the committal for trial of the person if the offense had been committed in the requested State."
"Section 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 -22- 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."
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 subsections (2), (3) and (4) of Section 7 of the Extradition Act. The said subsections cannot be ignored.
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 -23- 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 Grand Jury.
28. Counsel for the fugitive criminal has argued that in view of the aforesaid observations made by the Hon'ble High Court and Hon'ble Supreme Court the extradition request should be accompanied with all 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 Grand Jury. He further argued that all the said documents were required in addition to each other and the said requirement has not been complied with.
29. Counsel for the fugitive criminal has further referred to R v Governor of Pentonville Prison, Ex parte Narang 1978 AC 247 (DC) where Lord Widgery CJ said at 258:
one has to consider, in deciding whether or not sufficient evidence has been tendered by the requesting country, what the situation would be if the -24- magistrate were sitting in England to determine a case where the events disclosed in the evidence had happened in England. Whether it be a question of admissibility of evidence, or of statutory defences as it was in Harrod, in all these cases the magistrate is concerned with the English law and nothing else.
30. The Counsel for fugitive criminal has further referred to S v Koch (SA 13/05) {2006} NASC 6 (29 November 2006) in case title HansJurgen Gunther Koch and the State passed by the Hon'ble Supreme Court of Namibia wherein it was observed:
"Respectfully agree with the law as set out in the case of Bigione. The evidential regime in Namibia is that evidence is either given viva voce or, where it concerns written evidence, by deposition or statements which are either sworn or affirmed. Furthermore the evidence must be admissible evidence. Whether there is sufficient or prima facie evidence to commit a person cannot be determined on inadmissible evidence, such as hearsay evidence. By that I do not mean to say that a statement which contains inadmissible evidence must be rejected in toto. In this regard I agree with Van Niekerk, J, as to the Court's function and evaluation of evidence. -25- However the inadmissible evidence cannot be considered in determining whether there is a prima facie case made out for committal."
Our Extradition Act is very much cast in the mould of the English Extradition Act of 1870 and it would therefore be useful to look at decided cases in that jurisdiction. In the case of Beese and another v Governor of Ashford Remand Centre and another, {1973} All ER 689 at 692b, a decision of the House of Lords, the words 'sufficient evidence' were interpreted to mean 'prima facie evidence of guilt' which, in my opinion not only means proof of the commission of the crime but also prima facie proof of the commission of that crime by the person. (See also R v Governor of Pentonville Prison ex parte Narang, {1878} AG 247 at p 258 H and see generally Halsbury's Laws of England, 4th Edition, Vol. 18 paras 225ff}.
However, I find it necessary to make some comment in regard to the requirement of our Extradition Act that a committal can only follow upon a finding by the magistrate that there was sufficient or prima facie evidence to commit. This requirement places a heavy burden on the State and on the -26- resources of the State. What is supposed to be a relatively simple and speedy procedure, because it is only an enquiry and not a trial where guilt or innocence play a part, inevitably develops into an all out fight and the making of a last stand to attempt to avaoid the consequences of criminal behaviour in another country. This is made possible by the requirement of a prima facie proof before committal. In this battle the State is at a disadvantage because it must mainly make do with evidence on affidavit drawn up in another country which may not always be au fait with legal procedures and the dictates of our law. At a time where whitecollar crime is on the increase we do not want Namibia to be seen as a haven for such criminals.
31. Counsel for fugitive criminal has further referred to Judgement passed by the Hon'ble Supreme Court of United States in case Factor Versus Laubenheimer, United States Marshal, et al. 290 US 276 (1933): 54 S.Ct. 191: 78 L.Ed. 315 wherein it was observed that The United States, upon the indictment without more, demanded their extradition. The insular court held no ground for extradition had been shown. It said: 'An indictment per se can never be -27- received as evidence. It is not enough for us to know that the American jury thought the parties guilty. We ought to know the grounds upon which they thought them guilty. What may constitute the crime of murder in Florida may be very far from doing so according to the British laws or even in the laws of the northern States of America.'
32. Counsel for fugitive criminal has argued that on scrutiny of the documents produced, it is clear that the said documents were not sufficient to "construe as evidence", nor the said documents were complete as provided in the guidelines issued by the Ministry of External Affairs in this regard and even as per the Treaty between the two Countries. He argued vehemently that the extradition request is not accompanied with any medical evidence, police report, complaint and statement of the prosecutrix which was prepared and filed by the investigating agency before any competent Court of Law in the requesting State. There was no evidence on record to show that the concerned Court at USA is competent to try the offence as alleged in the present case.
33. As per contra, Ld. SPP for UOI has argued that the offence for which the extradition of the fugitive criminal has been requested are extraditable offences. A perusal of the facts of this case, as contained in -28- the extradition request reveal that the offences for which the fugitive criminal is wanted by the requesting State are punishable with the maximum sentence of 25 years imprisonment in case of rape in the first degree, and therefore, there is no doubt, whatsoever, that the offense with which the fugitive criminal has been charged by the requesting State are extraditable offences in terms of the Extradition Treaty and the Extradition Act. He has further argued that after having ascertained that the offences for which the fugitive criminal is wanted by the requesting State are extraditable offences, it is next to be ascertained as to whether the mandatory procedure as laid down in the Extradition Act and the Treaty has been followed by the Contracting States.
In compliance of Article 9 (2) (a)(d), the requesting State has sent information describing the identity of the fugitive criminal including his photograph which has been identified by the detective in his affidavit. The request also contains affidavit of the prosecutor, Barbara E. Peck describing the procedural history of the case, charges and potential sentences, statutory provisions, punishments and the identification information. The requesting State has sent information describing identity of the fugitive criminal including his photograph which has been identified by the female victim. The request also contains the affidavit of the prosecutrix in compliance of Article 9 (3). A copy of warrant of arrest dated 17.08.2009 of the fugitive criminal has been sent by the requesting State which is produced as Ex. CW 1/H4. Furthermore, the warrants of arrest dated 07.05.2009 was issued by the -29- competent court which is Ex. CW 1/H5. The 'INDICTMENT' is also produced as Ex. CW 1/H1.
34. Ld. SPP for UOI has further argued that the Extradition request sent is in absolute compliance of Article 9 of the Treaty.
35. I have perused the record and heard arguments at length on behalf of both the parties.
36. This is an extradition request received from United States of America for extradition of the fugitive criminal Amit Mohan Singh who was arrested in India on the basis of the INTERPOL's Red Corner Notice bearing no. A1251/22011 by subsequent LOC bearing no. 2011104148 while he was attempting to fly to Bangkok, Thailand and thereafter, a formal request was received from US Government in terms of the Treaty to initiate proceedings against the fugitive criminal. The allegations against the fugitive criminal are that on 11.03.2009, he raped a 14 years old minor female in USA. The DNA sample obtained from the person of the victim also matched with the DNA sample of the fugitive criminal and the victim had also identified Fugitive criminal as her attacker. The fugitive criminal fled to India 5 days after the attack and was apprehended on 06.07.2011 at IGI Airport, New Delhi and was produced in this Court. It is not disputed by Counsel for the fugitive criminal that as per the Extradition Treaty, the extraditable offences in -30- Article 2 as punishable under the laws of both contracting states were made out from the allegations.
37. The foremost contention raised by the Counsel for fugitive criminal is that provisions of the Section 9 (2) (3) (4) has not been complied by the requesting State.
Article 9 of the Extradition Treaty provides what is procedural and documentary requirement of holding inquiry under Section 7 of the Extradition Act, 1962.
Article 9 (2) of Extradition Treaty provides that:
"All requests for extradition shall be supported by:
(a) documents, statements, or other types of information which describe the identity and probable location of the person sought;
(b) a information describing the facts of the offense and the procedural history of the case;
(c) a statement of the provisions of the law describing the essential elements of the offense for which extradition is requested;
(d) a statement of of the provisions of the law describing the punishment for the offense; and
(e) the documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of this Article, as applicable."
Article 9 (3) of Extradition Treaty also provides that:
"A request for extradition of a person who is sought for -31- prosecution shall also be supported by:
(a) a copy of warrants or order of arrest issued by a judge or other competent authorities:
(b) a copy of the charging document, if any; and
(c) such information as would justify the committal for trial of the person if the offense had been committed in the requested State."
Article 9 (4) of Extradition Treaty also provides that:
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 judgement of conviction or, if such copy is not applicable, 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".
38. Counsel for fugitive criminal has vehemently argued that as per Article 9 (3) (c), the request for extraditing the fugitive criminal -32- which is sought should be supported by such information as would justify the committal for trial of the person if the offence had been committed in the requested State. Counsel for fugitive criminal has laid emphasis on the word 'committal' and submits that as per the procedure of Extradition in India committal for trial cannot be justified in this case. The documents which were produced alongwith chargesheet in case of rape needs copy of FIR and medical documents or atleast statement of victim herself. He further submitted that in the entire record pertaining to the present enquiry, there is no evidence as according to the law of India which would justify his committal for trial. The provisions of Article 9 of the Treaty are mandatory in nature and it does give any discretion to any authority in regard to the procedure of Extradition. He has further argued that as per Article 9 (4) (a) & (c) in case of a person who has been convicted for the offence for which the extradition is sought, the request shall be supported by:
Firstly, 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 and;
Secondly, 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.
39. I have gone through the entire record. There are as many as 18 documents annexed with the request which were furnished by the -33- requesting State.
The request contains a copy of warrants of arrest dated 17.08.2009 against the fugitive criminal sent by the requesting State and produced on record as Ex. CW 1/H4. Another warrant of arrest issued against the fugitive criminal by other Court is produced on record as Ex. CW 1/H5. It is to be seen whether the endorsed warrant for the apprehension of the fugitive criminal are duly authenticated i.e. whether the formalities pertaining to the authentication of the endorsed warrant have been complied with or not.
Sh. D.K. Ghosh, Consultant Extradition, Ministry of External Affairs, UOI appeared in the Court as CW 1. He has duly proved in his testimony the warrant of arrest of Amit Singh under indictment No. 1720N09 duly signed by Nassau County Supreme Court Judge Frank A Gulotta, Jr. and the Verbal Note No. 2011887/CONS dated 18.08.2011 Ex. CW 1/B vide which a request for extradition was received by the Ministry of External Affairs, Government of India alongwith certificate of Authentication Ex. CW 1/C made on behalf of Mr. Piyush Goel to the Embassy of India (Chancery) therein authenticating that the annexed official documents provided by Government of USA proposed to be used upon an application for extradition from Republic of India of Amit Singh, charged with certain criminal offences alleged to have been committed in USA, are properly authenticated to entitle them to be received in evidence for similar purposes by the tribunals of India, as required under Article 10 of IndoUS Extradition Treaty. The -34- certificate of Authentication issued by the First Secretary Consular, Embassy of India, Washington DC is duly endorsed with the stamp of the Embassy of India, Washington DC.
From the above discussions, it is hence clear that there is sufficient material on record to prima facie hold that the endorsed warrants against the fugitive criminal were duly authenticated. The formalities pertaining to the authentication of the endorsed warrants are duly complied with.
40. An affidavit of detective Wayne Birdsall, Nassau County Police, Department of State of New York is produced on record as Ex. CW 1/H7 in support of the application by the United States Government for the extradition of the fugitive criminal from India to the United States. In his affidavit, he deposed that during investigations, he interviewed the 14 years old female victim who had told him that on the date of incident i.e. 11.03.2009, the fugitive criminal approached her on the street and commenced a conversation with her and asked the female victim to go to his house. She refused to do so and the fugitive criminal in response told her to go to his house and pushed the female victim along towards the house, while walking behind her the entire distance.
As per Mr. Wayne Birdsall, the fugitive criminal forcibly raped the victim despite her opposition. After attack, she went to the hospital where she was examined by a nurse and after the examination, Wayne Birdsall received evidence collected during the examination from -35- the stomach area of the female victim and caused this evidence to be submitted for genetic testing. Thereafter, he received notification from Forensic Geneticist Kerstin Rosmarion Tabert of the Nassau County Office of the Medical Examiner, Department of Forensic Genetics that the evidence retrieved from the dried secretion on the stomach area of the female victim contained semen. Additionally, he received notification from Forensic Geneticist Kerstin RosmarionTabert that a DNA sample was obtained from the dried secretion on the stomach area of the female victim and that the DNA sample obtained matched the DNA of the fugitive criminal Amit Singh.
It has been categorically deposed by detective Wayne Birdsall, Nassau County Police, Department of State of New York that he interviewed the rape victim who narrated in detail the facts and circumstances in which she was raped. The female victim has also identified the photograph of the fugitive criminal as the person who forcibly raped her.
41. The Extradition request also contains a "Certificate of Authentication: Ex. CW 1/C. The said document certifies that the annexed official documents provided by the Government of USA proposed to be used upon an application for extradition from Republic of India of Amit Singh are properly authenticated to entitle them to be received in evidence for similar purposes as required under Article 10 of IndoUS Extradition Treaty.
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42. The extradition request contains as Ex. CW 1/D, a certificate signed by Hillary Rodham Clinton, Secretary of State, certifying that the document annexed is under the seal of Department of Justice of the United States of America and that such seal is entitled to full faith and credit. Ex. CW 1/E is the certificate signed by the Attorney General of the United States Department of Justice. Ex. CW 1/F is the Certificate dated 05.08.2011 signed by David P. Warner, Office of International Affairs, Criminal Division, Department of Justice, United States of America certifying that attached thereto is the Original Affidavit, with attachments, of Barbara E. peck, Assistant District Attorney, for Nassau County, in the State of New York sworn before Honorable Frank A. Gulotta, Jr., a Supreme Court Justice for Nassau County, on 04.08.2011. It is further stated that true copies of those documents are maintained in the official files of the United States Department of Justice in Washington, D.C. In addition thereto, all the documents are certified to be true transcripts on originals by the County Clerk. The affidavits are duly sworn as mentioned hereinabove. The warrants of arrest have been issued by the competent court. In such circumstances, it cannot be contended that the documents have not been authenticated in accordance with the provisions of the Treaty and the Act.
43. I have gone through Ex. CW 1/H1 indictment accusing the Fugitive Criminal for the Crime of Rape and Sexual Abuse etc. Further, -37- Ex. CW 1/H3 is an Order on sentence for probation pronounced on the fugitive criminal. It reads as:
To Amit Singh Date of Birth 19th May 1981 Address:1530, Rosalind Avenue Elemont, New York 11003 having being (convicted of) (adjudicated as) PCS 50 2200 D. Felony under Docket # IInd 1892N07 you are this day sentenced to probation for a period of 5 years under the supervision of the Nassau County Probation Department. While serving your probation sentence, you shall observe the following Conditions of Probation and any others which the Court may impose at a later date, and you shall also follow the instructions of the probation officer as to the way these Conditions are to be carried out.
Ex. CW 1/H3 is an order on sentence on probation also mentioning all the conditions of probation.
44. The above Order has been passed by Hon. Georger. Pect Judge against the fugitive criminal Amit Mohan Singh. It specifically mentions that the fugitive criminal has been sentenced to probation for period of five years under the supervision of the Nassau County Probation Department. It is an order on sentence containing all the conditions of Probation. The contention raised by the Counsel for the fugitive criminal that there is no copy of order on sentence annexed in compliance of Section 9 (4) is falsified.
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45. In my considered view, prima facie, the abovementioned duly authenticated documents are sufficiently clinching enough to rope in the fugitive criminal Amit Mohan in the commission of the alleged offence for the purposes of the present request. As observed above, the provisions of Article 9 of the Treaty has been duly complied with.
46. I am fortified in my view by the observations made by the Hon'ble Superior Courts in the following judgments which also include the Judgements relied upon by the fugitive criminal:
In Kamlesh Babulal Aggarwal Vs Union of India & Anr. Passed by the Hon'ble High Court of Delhi, it has been held that "It is now fairly well settled that the Magisterial inquiry which is conducted pursuant to the request for extradition is not a trial. The said inquiry decides nothing about innocence or guilt of the fugitive criminal. The main purpose of the inquiry is to determine whether there is a prima facie case or reasonable grounds which warrant the fugitive criminal being sent to the demanding State. The jurisdiction is limited to the former part of the request and does not concern itself with the merits of the trial."
It was further observed that "Prima -39- facie? Has a definite connotation in law. It is defined as? At first sight?or?accepted as so until proved otherwise?or?on face of it?, or? So far as it can be judged from the first disclosure? The prima facie case will prevail until contradicted and overcome by other evidence. While determining whether a prima facie case has been made out, the relevant consideration is whether on the evidence laid it was possible to arrive at the conclusion in question."
The Division Bench of this Court in Charles Sobhraj case {(29)) (1986) DLT 410} also held that the entire jurisdiction under the Act vested in the Magistrate is restricted to find out whether there is a prima facie case and that there is no further power vested in the Magistrate. It is perhaps for this reason that the Division Bench of this Court in Nina Pillai case held that the position was fairly well settled.
Further, in Niranjan Patel Vs UOI, the Hon'ble High Court of Delhi observed that:
"In the present case, the Petitioner is a fugitive convict. Thus clause 4 of the Article 9 of the Treaty would be applicable according to which a copy of the judgment of conviction or if such a -40- copy is not available, a statement by a judicial authority that the person has been convicted has to be annexed with the extradition request. Learned counsel for the Petitioner contends that W.P. Crl. 755/2011 Page 15 of 17 nonsupply of conviction order has made the request nonest in law and in absence of such an order of conviction, an adverse presumption is liable to be drawn against the requesting State as the Petitioner was not able to prove that the offences for which he was convicted are of political character for want of the copy of conviction order. I find no merit in these contentions. Although a copy of conviction order was not annexed with the extradition request, the order on sentence was annexed with the request in which the Sections under which the Petitioner was convicted were mentioned. Further the copy of the order on sentence was accompanied by the copy of statement indicating the offences for which petitioner has been convicted of. Article 9.4 (a) itself gives option of providing a statement by a judicial authority that the person has been convicted, if the copy of the judgment is not available. Thus the nonsupply of copy of order of conviction does not ipso facto vitiate the inquiry -41- proceedings under Section 5 of the Extradition Act.
47. The requesting State in the present inquiry has also sent a declaration of delinquency issued by the County of Nassau County declaring the fugitive criminal as "probationer delinquent". The same is also accompanied with an affidavit dated 01.08.2011 of the probation officer Mr. Simonique Phinn, the same is produced on record as Ex. CW1/H 8. The probation officer has categorically deposed that on 30.09.2006, the fugitive criminal was criminally charged with criminal possession of the controlled substance in the fifth degree in violation of New York State Penal Law Section 220.06, Subdivision 5 based upon allegations that he possessed in excess of 500 milligrams of cocaine. The fugitive criminal entered a plea of guilt and was convicted of the charge of Attempted Criminal Possession of a Controlled Substance in the Fifth Degree in violation of New York State Penal Law Section 110/220.06, Subdivision 5. On 08.02.2008, the fugitive criminal was sentenced to five years probation by County Court Judge George Peck of County of Nassau, State of New York. It is further stated in the aforesaid affidavit that the fugitive criminal violated the conditions of probation by failing to report to the Probation Department for urinalysis test and stated that he would not come. Despite repeated directives and letters from the Nassau County probation Department, fugitive criminal has not responded and is suspected of absconding.
In furtherance thereof, the request also contains a 'Report -42- & RecommendationViolation of Probation' recommending incarceration of the fugitive criminal; alongwith the same a copy of presentence investigation is also attached. The same are Ex. CW 1/H 9. The extradition request contains an order dated 24.11.2010 alongwith an Affirmation of Theresa Tebbett, Assistant District Attorney, Ex. CW 1/H10, of Frank A. Gulotta, JR., J., Supreme Court Justice, Nassau County, whereby it has been ordered that the records of Indictment Number 1720 N09 (relating to conviction for possession of cocaine) be unsealed and made available for use by the Nassau County District Attorney's Office.
48. On perusal of the aforesaid documents, I am satisfied that the Provisions of Article 9 (4) (c) are duly complied with. The documents annexed in regard to the probationer delinquent are sufficient in themselves to establish a prima facie case against the fugitive criminal. A Certificate of authentication Ex. CW 1/C produced on record certifies that the annexed official documents provided by the Government of USA proposed to be used upon an application for extradition from Republic of India of Amit Singh are properly authenticated to entitle them to be received in evidence for similar purposes as required under Article 10 of IndoUS Extradition Treaty.
49. I also rely upon the observations made by the Hon'ble Supreme Court in Sarabjit 'Rick' Singh case wherein it was observed: -43-
that holding an inquiry under Section 5 of the Act is only an enabling provision and does not cast an obligation on the Government to order an inquiry in every case of a request to extradite a person. Thus, the request for extradition could be honoured even without a judicial scrutiny of the same. The Division Bench thus held that when the Government opted to ask for a Magisterial inquiry, its scope is only limited to find the existence of a prima facie case for extradition and that for such inquiry only the documents enclosed with the request for extradition and the statements of the investigating officers may suffice.
It was further observed by the Hon'ble Supeme Court that 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.
It was further observed that "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 -44- provisions contained in the latter is also imperative. On a conjoint reading of Section 7 and Section 10 of the Act read with paragraphs 2 and 3 of Article 9 of the Treaty, we are of the opinion that the word "information" occurring in Section 7 could not mean an evidence which has been brought it on record upon strict application of the provisions of the Evidence Act. The term "information" contained therein has a positive meaning. It may in a sense be wider than the words "documents and the evidence", but when a document is not required to be strictly proved upon applying the provisions of the Indian Evidence Act or when an evidence is not required to be adduced strictly in terms thereof, the use of the word "information" in Section 10 of the Extradition Act as also Articles 9 (2) and 9 (3) of the Treaty becomes relevant. Documentary evidence, no doubt from part of a judicial record;
but then even in a court governed by Criminal Procedure Code 1973 documents are to be supplied only when the cognizance of the offence is taken. At this stage, therefore, the requirement of subsection (5) of Section 173 of -45- the Code of Criminal Procedure was not necessary.
Section 10 of the Extradition Act speaks of certification of facts. Such certification is found in the affidavit of Mr. Gilpin. How such certificate of fact is to be furnished does not appear from the provisions of the said Act and the affidavit may serve the said purpose. It is not, therefore, possible to hold that the report of the learned Magistrate is vitiated on the premise that he has failed to apply a mandatory provision thereof.
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 Grand Jury.
Section 10 of the Act clearly provides -46- that any exhibit or deposition which may be received in evidence need not be taken in the presence of the person against whom they are used or otherwise. It also contemplates the copies of such exhibits and depositions and official certificates of facts and judicial documents stating facts would, if duly authenticated, be received as evidence.
It was also observed by the Hon'ble Supreme Court that if an affidavit through proper diplomatic channel is received, it has to be relied upon.
50. Further, in Niranjan Patel Vs UOI, the Hon'ble High Court of Delhi referring to the observations made in Sarabjit Rick Singh v. Union of India (UOI) (2008) 2 SC 417 held that 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. The 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 where for a report is to be -47- prepared.
The Ld. Counsel for the fugitive criminal has also referred to the said Judgment, however, in the same judgment, it was also observed that:
The Magistrate on the order of inquiry being passed by Central Government issues a warrant of arrest of the fugitive criminal. The whole process is to apprehend or prevent the further escape of a person who is accused of certain offences and/or is convicted and wanted by the requesting State for trial or for undergoing the sentence passed or to be passed. The Act contains sufficient safeguards in the procedure to be followed in the inquiry by the Magistrate to protect the fugitive criminal. The Magistrate is to receive evidence from the requesting State as well as of the fugitive criminal. The fugitive criminal is entitled to show that the offences of which he is accused or convicted are offences of political character or not an extradition offence. Besides, the Magistrate, if he comes to a conclusion that a prima facie case is not made in support of the requisition by the requesting State, he is required to discharge fugitive criminal.
51. In the present inquiry, three affidavits that of Detective Wayne Birdsall Ex. CW 1/H7, another affidavit of prosecutor Sh. Barbara E. Peck Ex. CW 1/G and Probation Officer Simonique Phinn Ex. CW -48- 1/H8 have been produced on record which have been duly authenticated by the Secretary of State, United States of America and the Attorney General of United States, Department of Justice.
The affidavit of the detective Wayne Birdsall, Nassau County Police, Department of State of New York mentions the entire facts of the case. The affidavit of Ld. Prosecutor namely Barbara E. Peck who is the Assistant District Attorney has mentioned the procedure alongwith charges, potential sentences and statutory provisions in detail alongwith summary of the facts of the present case. The affidavit filed by Ld. Prosecutor Barbara E. Peck completely mentions all the details and documents of the present case. The same are entitled to full faith and credit.
52. Moreover the requesting State has also sent the indictment Ex. CW 1/H1 issued by the Supreme Court, County of Nassau, State of New York, USA. An indictment is an accusation in writing found and represented by the Grand Jury which is legally convoked and sworn before a Court. An indictment hence coupled with the information in detail as provided in the abovementioned duly authenticated affidavits has to be given due faith and credit. Further, the information as contained in the affidavit of the Ld. Prosecutor coupled with DNA test report which is duly authenticated and never disputed, in my considered view is enough for making out a prima facie case against the fugitive criminal for the purposes of the present inquiry. The DNA sample -49- retrieved from the female victim matched with DNA of the fugitive criminal Amit Mohan Singh. It is clear from the record that the fugitive criminal was subjected to regular medical check ups during his probation and availability of his DNA for conducting abovesaid tests would not have been a problem. Furthermore, even one picture of the fugitive criminal has been identified by the female victim as her attacker when it was displayed to her by Detective Birdsall and the same has been produced on record and exhibited as Ex. CW 1/H6. The photograph so produced was never disputed. Even, from the record, it is clear that the identity of the fugitive criminal has never been disputed.
53. I am satisfied that all the documents are received through proper diplomatic channel. The documents have been filed by the Officials of U.S. Department of Justice, Washington, D.C. All the documents are certified to be true transcripts on originals by the County Clerk. The affidavits are duly authenticated as mentioned above. The warrants of arrest were issued by the Order of the Supreme Court for the County of Nassau in the State of New York and by the Order of Nassau County Court in Mineola, New York. All the documents have been received in a proper sealed condition. Nothing could have been inserted or added. A detailed statement of indictment is produced on record. As mentioned above, an indictment as per Black Law's Dictionary is an accusation accusation in writing found and presented by a grand jury, legally convoked and sworn, to the court in which it is impaneled, charging that -50- a person therein named has done some act, or been guilty of some omission, which by law is a public offense, punishable on indictment.
The same in my considered view cannot be disbelieved at this stage.
54. The Union of India in this inquiry is not required to lead evidence under the provisions of Indian Evidence Act. The authentication is only to be considered on the procedural aspect. The argument as put forward by the Counsel for the fugitive criminal that a copy of FIR,medical documents or the statement of witnesses and victim etc. was required at this stage is hence unfounded.
55. The allegations against the fugitive criminal are very serious in nature. The female victim is a child less than 15 years of age. The fugitive criminal, it seems has absconded from USA after date of incident and was found in India within five days of the incident. His conduct immediately after the incident is also to be taken note off. The offences against fugitive criminal are extraditable offences and without any colour of political character.
56. Nothing has been brought on record to show any possibility of false implication of the fugitive criminal. This Court in the present matter has only to hold a preliminary inquiry as to whether a prima facie case is made out against fugitive criminal or not. There is -51- nothing on record to show any extraneous reasons for the request being filed. The fugitive criminal has never raised the plea of any racial discrimination or political vendata.
Conclusion
57. After considering the entire facts, circumstances and material in support of the Extradition request, I am of the view that the prescribed procedure has been followed in as much as the Extradition request has been submitted through diplomatic channel, alongwith duly authenticated documents and required information as per Article 9 (1), (2) and (3) of the IndoUS Extradition Treaty. Thus, I conclude my report with following conclusions:
(1) Offences alleged against the fugitive criminal are Extraditable offences.
(2) Prosecution of fugitive criminal for offences is not barred by lapse of time because as per Title 18 United States Code, section 3290 no statute of limitation shall extend to any person fleeing from justice.
(3) The information and material furnished by the requesting state alongwith request of extradition, prima facie, shows that the fugitive criminal has been indicted by the Supreme Court for the County of Nassau in the State of New York for committing rape on a minor female child in violation of the following:
Count One charging Rape in the First Degree in violation of New York State Penal Law Section 130.35 with a maximum sentence -52- of 25 years' imprisonment.
Count Two charging Rape in the Second Degree in violation of New York State Penal Section 130.30, with a maximum sentence of seven years' imprisonment;
Count Three Charging Sexual Abuse in the First Degree in violation of New York State Penal Law Section 130.65 with a maximum sentence of seven years' imprisonment;
Count Four charging Sexual Abuse in the Third Degree in violation of New York State Penal Law Section 130.55 with a maximum sentence of three months.
Count Five charging Endangering the Welfare of a Child in violation of New York State Penal Law Section 260.10 with a maximum sentence of one year imprisonment.
58. As far as the violation of the probation is concerned for the offences u/s 220.06 Sub Division 5 of the New York State Penal Law and Section 110 of the New York State Penal Law, the analogous provisions are contained in Section 8 and 21 of the NDPS Act r/w Section 9 of Probation of Offenders Act. In view of the Article 2 (5) of the Extradition Treaty, however, the extradition has to be granted for the said offence also as all other conditions for the Extradition inquiry are met with.
59. In view of my above report, I hereby recommend to Union of India the extradition of the fugitive criminal Amit Mohan Singh to the -53- requesting State i.e. United States of America.
A copy of this inquiry Report be given to the fugitive criminal free of cost. The fugitive criminal is also being informed of his right to file written statements/representations as per Section 7 (4) of the Extradition Act, 1962.
A copy of this report be sent to Union of India through the Ld. Counsel of Union of India alongwith written statement of the fugitive criminal, if any.
(ANNOUNCED IN THE OPEN SUDESH KUMAR
COURT ON 6rd August, 2013) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01
This Judgment contains 54 pages NEW DELHI DISTRICT
and each paper is signed by me. PATIALA HOUSE COURTS,DELHI
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