Gurdev Singh Sangha (Dr.) vs State
1999 Latest Caselaw 640 Del

JUDGMENT

Anil Dev Singh, J.

1. Rule D.B.

2. This is a writ petition whereby the petitioner prays for quashing of the order dated October 19, 1988 issued by the Ministry of External Affairs, New Delhi, under Section 5 of the Extradition Act, 1962, and the proceedings emanating therefrom.

3. The facts giving rise to the petition are as follows :-

4. The petitioner was arrested on February 9, 1978 in Belgium in execution of a warrant of extradition issued by the Government of Canada for import of 'Cannabis Sativa' into Canada. The petitioner was extradited to Canada and on January 9, 1979 was convicted for the said offence, and was sentenced to undergo imprisonment for fourteen years and directed to pay a fine of five lakh dollars failing which to undergo an additional term of three years. The petitioner alleges that Mr. Joseph Pomerant, his counsel, committed fraud on him and had compelled him to plead guilty to the offence of conspiracy to import 'Cannabis Sativa' into Canada. He also alleges that his counsel forged documents and withdrew large sums of money from his account. It is also the allegation of the petitioner that on a complaint filed by him against Mr. Joseph Pomerant in Canada, the former was sentenced to five years imprisonment. The grievance of the petitioner is that despite finding Mr. Joseph Pomerant guilty the trial of the petitioner, though having vitiated, was not declared void by the Canadian Court.

5. On January 16, 1983 the petitioner walked out of Beaver Creek Correctional Camp, Muskoka. Town of Gravenhurst, State of Ontario, after having undergone imprisonment of 1469 days and escaped to India. On August 31, 1988 the petitioner was arrested pursuant to the warrant issued by the Chief Metropolitan Magistrate at the request of Crime Branch, Delhi Police which had applied for issuance of warrant against the petitioner under Section 9 of the Extradition Act, 1962. Respondent No. 2 - Union of India appointed Shri R.L. Chugh, Chief Metropolitan Magistrate, to make an enquiry under Section 5 of the Extradition Act against the petitioner. This Order was passed by the Central Government at the request of the Canadian Government communicated through the Canadian High Commission.

6. The petitioner challenges the Order of the Central Government dated October 19, 1988 and the extradition proceedings emanating as a result thereof. The respondents have not filed any reply to the writ petition despite opportunity having been granted to them.

7. We have heard learned counsel for the parties. It appears to us that the proceedings for extradition of the petitioner cannot be sustained in law. The undisputed position is that the petitioner is in custody w.e.f. August 31, 1988. Thus, he has already remained in prison in India for a period of about eleven years as a result of the extradition proceedings which had commenced pursuant to the impugned order passed by the Government of India. To permit extradition of the petitioner after about eleven years of his incarceration in India would be highly unfair and unreasonable. It cannot be lost sight of the fact that the petitioner had also remained in Canadian Jail for a period of 1469 days. In the ircumstances, it will be highly unjust and oppressive to allow extradition of the petitioner to Canada after he has spent about eleven years in custody in India in connection with the request of the Canadian Government for his extradition. This Court in George Kutty Kuncheria Vs. Union of India and Another, , relying on decisions in Kakis Vs. Government of the Republic of Cyprus, 1978 (2) All E.R. 634: Narajan Singh Vs. FugitiveHanderson

Offenders Act, 1981, 1961 (2) All E.R. 565; and Re. Handerson Vs. Secretary of State, 1951 (1) All E.R. 283, held that the extradition of petitioner therein after eight and half years of his arrest was held unjust and oppressive and accordingly the petitioner was directed to be discharged from custody forthwith.

8. In this view of the matter, the impugned order dated October 19, 1988 issued by the Ministry of External Affairs, New Delhi, under Section 5 of the Extradition Act and the proceedings emanating therefrom are hereby quashed. The petitioner shall be set free forthwith unless wanted in any other case.