Adv Anamika Roy Choudhary
Approval of extradition of fugitive diamond merchant Nirav Modi, wanted in India on charges of fraud and money laundering in Punjab National Bank (PNB) scam case, was granted by the Home Ministry of UK on 17th April, 2021.
On Feb 23rd 2021 the Westminster Magistrate’s Court in London accepted the plea of Indian Government to extradite fugitive diamantaire Nirav Modi. The man who alleged duped the Punjab National Bank of Rs 13,500-crore of rupees and fled from the country.
The UK Court delivered the judgement holding that the evidence against Modi was prima facie sufficient to order his extradition to India to face the charges. The first and the foremost aspect was the Court also upheld the assurances of the Indian government and rejected the submissions of defence regarding human rights violations, fair trial, and prison conditions.
The Punjab National Bank Scam relates to the fraudulent letter of undertaking worth 10,000 crore issued by bank. The alleged person in the case were jeweller and designer Nirav Modi his maternal uncle Mehul Choksi and other relatives and some PNB employees. Nirav Modi and his relative escaped in early 2018, days before the scam became public. PNB scam has been probably dubbed as the largest fraud in India’s banking history.
Bankers used fake Letters of Undertakings (LoUs) at PNB’s Brady House branch in Fort, Mumbai. The LoUs were opened in favour of branches of Indian banks for import of pearls for a period of one year, for which Reserve Bank of India guidelines lay out a time frame period of 90 days from the date of shipment.
This guideline was ignored by overseas branches of Indian banks. They ineffectually failed to share any document/information with PNB, which were made available to them by the firms at the time of availing credit from them.
Nirav Modi who was alleged got his first fraudulent guarantee from PNB on March 10, 2011 and managed to get 1,212 more such guarantees over the next subsequent 74 months.
The Enforcement Directorate (ED) recovered bank token devices of the foreign dummy companies used by Nirav Modi diamantaire to transfer the fraudulent funds.
The probe agency found that Nehal Modi, brother of Nirav Modi had destroyed the devices and had even secured a server located at United Arab Emirates (UAE) soon after the scam broke out. These dummy firms had been receiving the fraudulent PNB LoUs and were based out in British Virgin Island and other tax havens.
The enforcement agency has till now confisticated movable and immovable properties to the amount of Rs 2362 crore in the PNB fraud case.
PNB employees helped Nirav Modi
PNB employees misusage of the SWIFT network to transmit messages to Allahabad Bank and Axis Bank on fund requirement. While all this was done using SWIFT passwords, the transactions were never recorded in the bank’s core system — thereby keeping the PNB management uninformed for years.
How Scam unfolded?
After PNB FIR, CBI in Investigation found that fraudulent LoUs worth Rs 2.8 billion (Rs 280.7 crore) were issued to Nirav Modi’s Company without any security. PNB in Internal enquiry found that the three diamond firms, Diamonds R Us, Solar Exports and Stellar Diamonds has involvement in this Scam.
Nirav Modi fled and found shelter in United Kingdom
In April 2018, it was alleged Modi had found safe heaven in Hong Kong, but in June of that year he was reported to be in the UK where he applied for asylum, claiming he was a victim of “political persecution” and denying any wrongdoing. In March 2019, Modi was reported have been sighted in the UK by The Telegraph.
It was said that he was living in an apartment costing £8 million. Indian authorities responded to the report by saying that an extradition request had been made to the UK. On 20 March 2019, Modi was arrested in London after a warrant was issued against him. Modi applied for bail in the UK High Court on May 31, a day after his remand was extended. All Nirav Modi’s requests for bail have been rejected seven times by the UK court as of October 2020.
The option which are left with Nirav Modi is that he still has two appeal left in the UK’s higher Court and plea seeking political asylum, all of which have to be decided against him before he can be deported to India .
In the latest news of Mar 19th 2021 Nirav Modi’s younger sister Purvi Mehta and her husband Maiank Mehta opt for grant of pardon in special court in Mumbai to testify against him in PNB scam case which is a big set back for him.
Countries with which India has Extradition Treaties/Arrangements
What is Extradition Treaty?
Extradition can be called as the “delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable within the Courts of the opposite State.”
An Extradition includes a formal procedure of one state surrendering an individual to another state for prosecution or even punishment for a number of crimes committed in the requesting country’s jurisdiction.
The Extradition Treaty between the UK and India was signed on 22 September 1992 and was approved on 15 November 1993. It provides that both countries will extradite individuals who have committed ‘extradition offences’ which are constituted by conduct and which under the laws of both countries is punishable for at least one year.
In other words, the UK will not extradite an individual to India unless that individual is accused of an offence that would be criminal under the laws of the UK as well as India and unless the offence is serious enough that it attracts a sentence of one year. These are common precondition – i.e. double criminality and minimum punishment – which are included in most extradition treaties. Notably, the Extradition Treaty does not prohibit the extradition of its own nationals by either the UK or India.
The Extradition Treaty also provides certain deviation where extradition may be refused including where (i) the offences are of a political character; (ii) the Requested Person can satisfy the Requested State that, his extradition is being sought for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or (iii) the offence carries the death penalty in the Requesting State, to name a few. Since extradition may be rejected on these grounds, they are often incorporated in the defense of Requested Persons resisting extradition.
Since 2002, foreign countries have extradited 75 fugitive offenders to India. Of these, 24 fugitive offenders have been extradited to India in the last five years. These individuals have been extradited to India from more than 20 countries including the United Arab Emirates, Canada, United State of America and United Kingdom (“UK“). sources
At least 51 extradition requests by Government of India are presently pending at various stages in different foreign jurisdictions (sources Rajya Sabha Unstarred Question No. 1664 – Fugitive Economic Offenders).
Extradition is refused then where to appeal
Sometimes the Requested country deny the extradition of a fugitive then at that time they can approach the International Court of Justice for extradition the famous case Belgium v Senegal.
The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.
Few more cases where extradition treaty has been applied
Sanjeev Chawla Case:
Sanjeev Chawla a key accused for match fixing scandal involving South African Hansie Cronjie in 2000. The Government of India issued an extradition request 1st Feb 2016 of Sanjeeev Chawla. This is India first successful extradition since the Extradition Treaty 1992 between India and UK.
Vijay Mallya Case:
The Government of India submitted an extradition request on 9th feb 2017 seeking the extradition of Vijay Mallya. Mallya had fraudulently obtained huge loan from a consortium of banks led by State Bank of India, for running his kingfisher Airlines. He has been charged for offences of cheating and criminal conspiracy under IPC read with offences under the Prevention of Corruption Act, 1988and Prevention of Money Laundering Act, 2002 which corresponded to the national UK offences conspiracy to defraud’, ‘making false representations’, ‘diversion and dispersal of the proceeds of lending’ and ‘money laundering’.
The High Court has dismissed his appeal on 20th April 2020 The Vijay Mallya vs. Government of India & Ors [2020] EWHC 924 (Admin).Vijay Mallya’s application seeking leave to file an appeal before the Supreme Court was dismissed on 14th May 2020.Unless Vijay Mallya secure relief from the European Court of Human right, his extradition to Indian is now imminent.
Zakir Naik case:
On June 2019 the Ministry of External Affair (MEA) asserted that it would continue its effort to pursue Malaysia with regards to the extradition requests of Zakir Naik. He was accused of spreading hatred with his provocative speeches, funding terror activities and money laundering of several crores of rupees. India has made request to Malaysia but the country has refused it is giving credence to his claim that the Indian Agencies are pursuing him because of his religious belief and his criticism of the current government and its party.
India is negotiating with the Interpol to get a Red Corner Notice (RCN) issued against Zakir Naik.
Conclusion
The success of the Government of India in extradition of these high profile cases is great achievement. This indicated that India aggressive approach toward extradition cases undoubtedly is a deterrent and advances the principle that no one can escape the long powerful arm of law. What emerges from these cases of extradition is that the requested country will commonly take up human rights and extraneous consideration arguments.
The condition of the India’s prison is always the primary issue of the e defence. Now it’s the responsibility of India to dispel any perceived risk by giving adequate assurance. India has to live up to their assurances so that UK and other jurisdiction ha confidence that India will not breach the assurance given by them.
International extradition is a moral imperative undertaken by Countries /States in good faith to promote and execute justice. In the nutshell we can conclude extradition is important for maintaining peace and order in the world and it also beneficial for the offenders who tries to escape from their punishment .
Advocate Anamika Roy Choudhary- Research Head – Law Insider
