Flemming Ludin Larsen vs Union Of India
1999 Latest Caselaw 478 Del

ORDER

Anil Dev Singh, J.

1. By this writ petition the petitioner seeks his release from detention. He also prays for setting aside of the order passed by Mr. Dharmesh Sharma, Metropolitan Magistrate, New Delhi, dated November 23, 1998 whereby a prima facie case was found in support of the requisition of the United States of America for his surrender and extradition.

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

The petitioner, a Danish National, and his associate negotiated sale of 2 kgs. of cocaine to undercover detectives Mr. Richard Friedman and Mr. Keith Camelo from Hollywood Police Department in Broward County, State of Florida. Following the negotiations the petitioner delivered one kg. of cocaine to the undercover detectives on August 16, 1991 with the understanding that another kg. would be delivered to them within ten minutes. The petitioner and his associate were then arrested and charged. On December 2, 1991, the petitioner entered an open plea of guilty to the charge of trafficking in cocaine in violation of Florida Statute section 893.135(1)(B)(3) and conspiracy to trafficking in cocaine in violation of Florida Statute section 893.135(1)b3(3). On September 10, 1992 the petitioner was required to appear before the court for his sentencing, but he failed to appear. Thereupon, a capias (a no bond warrant) was issued for his arrest. It appears that the petitioner had fled the United States of America to the country of his origin and therefore the warrant remained unexecuted. On August 6, 1997 the petitioner arrived at Indira Gandhi International Airport, New Delhi, by Scandinavian Airlines system flight SK-967 from Copenhagen as a transit passenger on his way to Nepal. The petitioner was arrested at the Indira Gandhi International Airport on the same day under section 41(1)(g) of the Code of Criminal Procedure, 1973, pursuant to the request of DSP, Interpol Wing, New Delhi, who had been tipped of by the United States Narcotic Central Bureau. After his arrest the petitioner was produced before the Additional Chief Metropolitan Magistrate, New Delhi, who remanded him to judicial custody which was extended from time to time till August 12, 1997. In the meanwhile, on August 6, 1997 itself the Ministry of External Affairs received a written request from the United States of America through its Embassy at New Delhi for provisional arrest of the petitioner. This request was made in accordance with Article 11 of the Extradition Treaty between the United States of America and the United Kingdom signed at London on December 22, 1931 and made applicable to India in accordance with Article 14 thereof from March 9, 1942. On receiving the above solicitation the Central Government requested the learned A.C.M.M., New Delhi, to issue a provisional warrant for the arrest of the petitioner under section 34B(1) of the Extradition ACt, 1962 (for short 'the Act). Acceding to the request the learned A.C.M.M, New Delhi, on August 12, 1997 issued the requisite warrant for the arrest of the petitioner whereupon the petitioner was formally arrested under sub-section (1) of section 34B of the Act. Thereafter the Government of India received a letter dated September 29, 1997 from the Government of United States of America through diplomatic channels for extradition of the petitioner. Pursuant to the request, the Central Government, on October 22, 1997, on the basis of the material submitted before them by the Government of the United States of America, passed on order requesting Mr. Dharmesh Sharma, Metropolitan Magistrate, Patiala House, New Delhi, under section 5 of the Act, to make an enquiry into the case. The formal request received from the Government of United States of America for the extradition of the fugitive criminal together with a warrant of arrest issued by the Circuit Court, Seventeenth Judicial Circuit, in and for Broward County, State of Florida, United States of America, and a copy of the gazette notification GSR No. 4937, dated April 1, 1996 duly authenticated by the Central Government, Ministry of External Affairs, were attached with the request. The Metropolitan Magistrate, on making the enquiry, recording the requisite evidence and hearing the learned counsel for the parties passed the impugned order. It is this order which has been challenged before us.

3. Learned counsel for the petitioner urged the following five points:-

1. The appointment of the Metropolitan Magistrate Mr. Dharmesh Sharma under section 5 of the Act, is bad in law as he did not have any jurisdiction to enquire into the offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, and consequently was not legally entitled to make an enquiry into the case and to make the impugned recommendation to the Central Government.

2. The documents sent to the learned Metropolitan Magistrate ere not authenticated in accordance with the requirements of section 10 of the Act, and therefore, they could not have been received in evidence.

3. The petitioner should not be allowed to be extradited to the United States of America as such an act will be highly unjust and oppressive since the offence was committed on August 16, 1991 and it is after eight long years that he will be made to suffer incarceration in the United States of America.

4. The Metropolitan Magistrate erred in holding that a prima facie case is made out in support of the requisition of the United States of America for the surrender and extradition of the petitioner.

5. The arrest of the petitioner was illegal inasmuch as he was arrested while he was in the transit lounge of the I.G.I. irport, New Delhi, which area cannot be considered to be part of the territory of India, and for all intents and purposes serves as no man's land for passengers travelling by air and using transit facilities at I.G.I. Airport, New Delhi.

4. We have considered the submissions of the learned counsel for the petitioner.

Point No.1:

5. In order to appreciate the submission of the learned counsel for the petitioner, it will be necessary to refer to Sections 4 and 5 of the Extradition Act, 1962, which read as under:-

"4. Requisition for surrender, - A requisition for the surrender of a fugitive criminal of a foreign State or a Common wealth ountry may be made to the Central Government -

(a) by a diplomatic representative of the foreign State or Commonwealth Country at Delhi; or

(b) by the Government of the foreign State or Commonwealth country communicating with the Central Government through its diplomatic representative in that State or country;

and if neither of these modes is convenient, the requisition shall be made in such other mode as is settled by arrangement made by the Government of the foreign State or Commonwealth ountry with the Government of India.

5. Order for magisterial inquiry, - Where such requisition is made, the Central Government may, if it thinks fit, issue an order to any Magistrate who would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction directing him to inquire nto the case."

6. On reading of the above said provisions, it is clear that after the requisition is made by the foreign State to the Central Government, the latter, if it thinks fit, can issue an order to any Magistrate who would have had jurisdiction to enquire into the offence if it had been an offence committed within the local limits of his jurisdiction, requiring him to enquire into the case. The argument of the learned counsel for the petitioner is that the Magistrate does not have the jurisdiction to enquire into an offence which is punishable under the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'NDPS Act') as it is the Special Judge of the rank of Sessions Judge or Additional Sessions Judge who can try such offences thereunder. In support of his submission, learned counsel relied upon clause (a) of sub-section (1) of Section 36-A of the NDPS Act. According to the said provisions, any offence under the NDPS Act is triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government.

7. The submission of learned counsel for the petitioner, if we may say so with respect, overlooks the provisions of sub-section (1) of Section 7 of the Act. Section 7(1) of the Act provides that when te fugitive criminal appears or is brought before the Magistrate, the Magistrate is required to enqire into the case in the same manner and has the same jurisdiction and power as nearly as may be, as if the case were one triable by a Court of Session or High Court. At this stage, it will be convenient to set out Section 7 of the Extradition Act.

7. Procedure before Magistrate. (1) When the fugitive criminal appears or is brought before the Magistrate, the Magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as if the case were one triable by a Court of Session or High Court.

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8. Thus it is clear that a Magistrate who is appointed to enquire into the case of fugitive criminal, will have the same jurisdiction and powers as if the case was triable by a Court of Session or High Court. It is also significant to note that though Section 36-A of the NDPS Act starts with a non obstante clause, the overriding effect thereof is however, confined and limited to the Code of Criminal Procedure alone. It does not override the provisions of the Extradition Act, which is a Special Act, dealing with extradition only. Therefore, by a deeming fiction contained in sub-section (1) of Section 7 of the Extraition Act, the Magistrate who is appointed by the Central Government to enquire into the matter is conferred with the same jurisdiction and powers, as nearly as may be, as if the case were one triable by the Court of Session or High Court. The provisions of sub-secion (1) of Section 7 by a statutory device enhances the power and jurisdiction of the Magistrate to the level of power and jurisdiction enjoyed by a Session Judge or Additional Session Judge manning the Special Court appointed by the Government with concurrence of the Chief Justice of the High Court as envisaged by Section 36-A of the NDPS Act. In case the argument of the learned counsel for the petitioner is accepted, offence triable by an Additional Session Judge or a Session Judge will fall outside the purview of the Extradition Act. If the argument of the learned counsel for the petitioner is taken to its logical conclusion, it will lead to startling results. While a fugitive criminal accused of a petty offence triable by a Magistrate in India will be liable to be extradited to the requesting State, a fugitive criminal who is accused of a serious offence triable by an Additional Session Judge or a Session Judge, will not be liable to be extradited. This position cannot be countenanced in law. An interpretation which leads to absurdity must be shunned. Therefore, the submission of the learned counsel for the petitioner that the Metropolitan Magistrate was not legally competent to try the offence of which the petitioner was accused of and consequently could not have been appointed under section 5 of the Extradition Act to make an enquiry into the case, cannot be sustained.

Point No. 2:

9. We have perused the documents, namely, formal request received for the United States of America for the extradition of the petitioner, his warrant of arrest issued by Circuit Court, Seventeenth Judicial Circuit in and for Broward County, State of Florida, USA and we find that they are not wanting in authentication. They are the original documents duly signed and authenticated by the concerned authorities and as such no fault can be found with them.

Point No.3:

10. In Order to appreciate the contention, it is necessary to point out that though the offence was committed by the petitioner in the year 1991 and he pleaded guilty to the charge on December 2, 1991, later he failed to cooperate and appear for sentencing on September 10, 1992. From September 10, 1992 the petitioner was not available till his arrest at the IGI Airport on August 6, 1997. It is only after his arrest on August 6, 1997 that proceedings for his extradition to the United States of America were initiated and though they have concluded in so far as the enquiry by the Magistrate is concerned, the petitioner could not be extradited because of the interim order passed in the instant writ petition on December 28, 1998 whereby the authorities have been restrained from extraditing him. Thus it is clear that right from 1991 to 1997 the petitioner was not available and the delay, therefore, is of his own making. After the arrest of the petitioner in 1997, the extradition proceedings cannot be said to have caused any oppression or injustice to the petitioner as there has not been any delay on the part of the authorities in conducting the proceedings. The 'stay of extradition' was sought by the petitioner and he cannot be allowed to take advantage of the order dated December 28, 1998 which was passed at his request. Learned counsel for the petitioner also cannot draw any support from the decision relied upon by him, namely, Union of India Vs. Manohar Lal Narang & Another, (1977) 2 All ER 348, Kakis Vs. Government of the Republic of Cyprus & Ors. (1978) 2 ER 634, Niranjan Singh case (1961) 2 All ER 565, and George Kutty Kuncheria Vs. Union of India and another, 1998 II A.D. (Delhi) 842, in support of the proposition that on account of passage of time it would be unjust and oppressive to return him to USA, as the delay is of his own making. In the instant case the petitioner was not in custody from 1991 to August 1997 as he was absconding. His flight from justice for eight long years cannot confer any privilege on him. Rather it is a factor which goes against the case of the petitioner. He cannot be allowed to take advantage of the period for which he was not available to the law enforcing agencies. It would have been unjust and oppressive in case the petitioner had remained in custody for long period of time pending his extradition not due to his fault but because of the procedural wrangles and laws delays. This is not the case here. The delay in the instant case lies at the door of the petitioner himself. In the circumstances, therefore, the submission of the learned counsel for the petitioner does not merit acceptance and the same is rejected.

Point No.4:

11. We have gone through the report of the learned Metropolitan Magistrate dated November 23, 1998. From the report it is clear that the learned Metropolitan Magistrate on the basis of the evidence on record came to the conclusion that a prima facie case is made out against the petitioner for having committed an extraditable offence. We do not see how the learned counsel for the petitioner claims that no prima facie offence is made out against his client. On perusal of the record, we are satisfied that the learned Metropolitan Magistrate was entirely right in holding that a prima facie case was made out against the petitioner. Accordingly, the submission of learned counsel for the petitioner cannot be accepted.

Point No.5:

12. Undoubtedly the petitioner was arrested in the first instance at the IGI Airport in transit lounge at the request of DSP Interpol, CBI, New Delhi on August 6, 1997. Thereafter his provisional arrest on August 12, 1997 pursuant to the request of the foreign State was in accordance with the provisions of Extradition Act, 1962 and no fault can be found with the same. We do not subscribe to the view of the learned counsel for the petitioner that the arrest of the petitioner in transit lounge at the IGI Airport tantamounts to his illegal abduction. The transit lounge by no stretch of imagination can be considered as no man's land. The transit lounge obviously is within the territory of India and not beyond it. If such an argument is accepted, criminals fleeing from the country where offence is committed to escape punishment cannot be arrested in another country to bring them to book while they are utilising the transit facilities of the latter country for which they do not have visa and are using the transit facilities only for the purpose of escaping to a safe haven.

13. Therefore, we are of the considered view that the writ petition is liable to be dismissed. This being so, the interim order can no longer remain in operation and the law must have its course.

14. In view of the foregoing discussions, the writ petition has no merit and the same is dismissed.