Sarabjit 'Rick' Singh vs Union Of India (Uoi)
2006 Latest Caselaw 2300 Del

JUDGMENT

Manju Goel, J.

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1. The writ petition challenges the inquiry report of the Additional Chief Metropolitan Magistrate(for short `ACMM'), New Delhi recommending the Union of India to extradite the petitioner to the United States of America(for short `USA'). The petitioner is wanted in USA to stand trial for drug related offences. A request for his extradition to USA was received by the Government of India on 11th October, 2002. On 24th January, 2003, the Central Government having been satisfied on the basis of materials submitted by the Government of USA that warrant of arrest had been issued by the U.S. District Court for the Southern District of Texas, Houston Division(hereinafter referred Page 0236 to as the `American Court') requested the ACMM, Patiala House Courts, New Delhi to enquire into the alleged offences under Section 5 of the Indian Extradition Act, 1962. The ACMM, New Delhi accordingly made the necessary inquiry and returned his findings in the report to the effect that there was a prima facie case for trial of the petitioner in respect of the extraditable offences for which his extradition is sought by the requesting state. The said report is under challenge.

2. Counsel for the petitioner as well as the learned Additional Solicitor General were provided full opportunity to argue the matter, additionally written submissions and synopsis were also permitted to be filed. These have been taken note of and considered to the extent relevant. Before proceeding further, it will be appropriate to briefly list the offences for which the American Court requires the petitioner.

3. "Count 1: Conspiracy from January 1997 to the date of the indictment.

Count 6: Possession with intent to distribute MDMA on or about February 24, 1999.

Count 7: Possession with intent to distribute MDMA on or about September 27, 2000.

Count 8: Possession with intent to distribute MDMA on or about March 20,2001.

Count 9: Unlawful use of a communication facility on or about March 20,2001.

Count 11: Possession with intent to distribute MDMA on or about May 9, 2001.

Count 14: Possession with intent to distribute MDMA on or August 15, 2001 and continuing through August 17, 2001.

Count 16: Unlawful use of a communication facility on or about August 31, 2001.

Count 17: Unlawful use of a communication facility on or about September 05, 2001.

Count 18: Possession with intent to distribute MDMA on or about September 13, 2001 and continuing through September 19, 2001.

Count 19: Unlawful use of a communication facility on or about September 20, 2001.

Count 20: Unlawful use of a communication facility on or about September 20, 2001.

Count 21: Possession with intent to distribute MDMA on or about September 21, 2001.

Count 22: Unlawful use of a communication facility on or about October 6, 2001.

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Count 23: Unlawful use of a communication facility on or about October 7, 2001.

Count 24: Possession with intent to distribute MDMA on or about September 21, 2001.

Count 25: Investment of illicit drug profits from on or about April 1, 1997 to the date of this indictment.

Count 26: Continuing to launder drug trafficking proceeds and Criminal Forfeiture Allegation.

4. The above indictments can be briefly classified as

(a) conspiracy

(b) possession of drugs

(c) drug trafficking

(d) Money Laundering

(e) Use of telecommunication facilities for trafficking in drugs

5. The impugned order is passed in a magisterial inquiry under Section 5 of the Extradition Act. Section 5 of the Extradition Act, 1962 is as under:

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 into the case.

It is under the above provision that the ACMM, New Delhi was asked to make the inquiry.

6. Section 6 of the Extradition Act prescribes that on receipt of an order of the Central Government under Section 5, the Magistrate shall issue a warrant for the arrest of the fugitive criminal. In the present case, however, even before the order was made under Section 5 of the Extradition Act, the petitioner was in custody. Section 7 of the Extradition Act then prescribes that 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 friable by a Court of Session or High Court. Section 7 further requires the Magistrate to take evidence as may be produced in support of the requisition of the foreign State as well as on behalf of the fugitive criminal. The Magistrate may, if he is of the opinion that prima facie case is made out in support of the requisition of the foreign State, commit the fugitive criminal to prison to await the orders of the Central Government.

7. Regarding the scope and ambit of the enquiry to be conducted by the Magistrate, reference may be usefully made to a decision of this Court in 'Nina Pillai v. Union of India' reported at 1997 Crl.L.J. 2358 to which one of us (Manmohan Sarin, J.) was party. The Division Bench observed:

It is clear from the scheme of the Extradition Act that pursuant to a request made under Section 4 of the Act, the order contemplated to be passed for a Magisterial inquiry under Section 5 does not contemplate a pre-decisional or prior hearing. Section 5 of the Act is an enabling Page 0238 provision by which, a Magistrate is appointed to inquire into the case. The Magistrate on the order of inquiry being passed by Central Government issues a warrant of arrest of the fugitive criminal. The whole purpose 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. The Act also has provisions under Section 25 of the Act for grant of bail. The Act under Section 29 confers wide powers on the Central Government to discharge the accused or cancel any warrants issued, if it finds that the application for surrender of return of the fugitive criminal has not been made in good faith. It may also discharge the fugitive criminal in the interest of justice or for political reasons if it is unjust or inexpedient to surrender or return the fugitive criminal.

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 enquiry decides nothing about the innocence or guilt of the fugitive criminal. The main purposes 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..."

8. The Division Bench in the cited case had also rejected the plea that the provisions of the Act cannot be applied to extradite an Indian citizen and had repelled the challenge to the provisions of the Extradition Act being violative of Article 14, 19(1)(e) and 21 of the Constitution of India. It was held:

The Common Law countries as well as India recognise the principle of territoriality of a criminal act and recognise the rule that persons accused of crime should be tried at or near the place where the offence was committed. It is believed to be essential for administration of justice that persons accused of the crime should be tried at or near the place where the crime was perpetrated and if they have managed to escape from the place they should be sent back when the requesting State requires their surrender for the purpose of justice. This principle finds recognition in the Extradition Act enacted by the Parliament. There is no merit in the contention that the provisions of Extradition Act are violative of Articles 14, 19(1)(e) and 21 of the Constitution of India and such challenge must fail.

In the light of the foregoing, let us consider the present case.

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9. The petitioner is stated to be holder of U.S. Passport. Allegedly, he is the leader of a Houston based criminal organisation involved in drug trafficking and money laundering. As per the investigation into the organisation of the petitioner, his organisation has been responsible for distributing millions of tablets of MDMA(ecstasy) and laundering millions of dollars in drug proceeds. According to the records of the investigation, the petitioner's organisation purchased large quantities of MDMA from sources in the Netherlands and obtained them in USA through couriers and exchanged them for cash to be distributed to lower levels of the organisation who, in turn, would sell the MDMA to buyers/consumers in Houston. During the course of investigation, the USA Drug Enforcement Agency(DEA) seized 4000 MDMA tablets from two individuals who had received them from the petitioner. The documents received from the United States along with request for extradition are as under:

(i) A certified copy of the Indictment in Docket No. H-02577;

(ii) A certified copy of the Warrant of Arrest of Sarabjeet "Rick" Singh;

(iii) Attached statutes of applicable offences and penalties;

(iv) A copy of a photograph of Sarabjeet "Rick" Singh;

(v) The affidavit of special Agent R. Keith Brown, U.S. Drug Enforcement Administration, Houston, Texas, entitled, "Affidavit in support of Extradition.

10. During inquiry before the Magistrate, the Union of India produced PW-1 Mr. U.S. Rawat, Under Secretary, Ministry of External Affairs to prove the order of Ministry of External Affairs dated 24th January, 2003 whereby the request is made to the ACMM to hold an inquiry which is Exhibit PW1/1, the request received from the United States dated 7th January, 2003 which is Exhibit PW1/2 and other documents received with the request of the Government of USA which included, inter alia, the affidavit of Mr. M.I. Geckos Exhibit PW1/7, affidavit and supplementary affidavit of R. Keith Brown Special Agent of D.E.A., an affidavit of Michael Ryan `O' Mealey and an affidavit of Alan Lane Blackley. The petitioner did not produce any evidence in his defense. Michael Ryan `O' Mealey and Alan Lane Blackley in their affidavits revealed that they had obtained MDMA tablets from the petitioner on several occasions. Michael Ryan `O' Mealey confessed of having received 15000 to 20000 tables of MDMA from the petitioner or his associates. Alan Lane Blackley confessed of having received a larger amount of these tablets on different occasions from the petitioner. The witnesses related to investigation in their affidavits have stated how in their investigation they found the petitioner having been involved in the offences mentioned earlier. The learned ACMM observed, in view of a judgment of the Supreme Court in the case of Rosiline George v. UOI , that the documents namely the request for extradition and other documents enclosed therewith were eligible to be treated and received as evidence under Section 10 of the Extradition Act. He further observed that the evidence of the witnesses including those of the investigating officers made out a prima facie case of Page 0240 the petitioner being in possession of forbidden drugs and being involved in drug trafficking and money laundering. The sworn affidavits of the two associates, namely, Alan Lane Blackley and Michael Ryan `O' Mealey, according to the ACMM, were relevant piece of evidence against the petitioner. So far as Count No. 9, 16, 17, 19, 20, 22 and 23 are concerned, the learned ACMM found that they did not constitute extraditable offence since the Indian law does not recognize these activities as offence. So far as money laundering under Count No. 25 and 26 is concerned, at the relevant time there was no parallel Indian law and so it was not an extradition offence.

11. The learned ACMM also found that MDMA(ecstasy) is a drug prohibited by the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `NDPS Act') and that manufacturing, possession, sale, purchase, transport, import, export and its use was punishable under Section 21 of the NDPS Act and that in view of the fact that the quantity recovered from the petitioner was commercial quantity, the punishment provided by the Indian law was imprisonment for not less than 10 years but could extend to 20 years and with fine not less than Rs. 1 lakh. Accordingly, the learned ACMM recommended that the petitioner be ordered to be extradited to USA.

12. It may be mentioned here that according to the Extradition Act, an `extradition offence' means:

(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. It may be further mentioned here that United States is a treaty State. The treaty with the United States regarding extradition was entered into on 14th September, 1999. As per Article 2 of this Treaty, an offence is extraditable if it is punishable under the laws of both the Contracting States by deprivation of liberty, including imprisonment, for a period of more than one year or by a more severe penalty. Attempt or conspiracy to attempt, aiding or abetting, counselling or procuring the commission of or being an accessory before or after the fact to, any offence which is extraditable offence are also extraditable offences. The offences levelled against the petitioner will be extraditable offences if those acts are offences in India and punishable by more than one year of imprisonment. Thus, apart from the offences relating to wrongful use of communication facilities and money laundering, the other offences which relate to possession and trafficking in drugs mentioned in the schedule of the NDPS Act are extraditable offences. As mentioned above, possession of drugs in commercial quantity is punishable by imprisonment up to the period of 20 years.

14. The main thrust of the petitioner in the writ petition and submissions before us has been to assert that MDMA is not a drug covered by the Schedule of the NDPS Act. MDMA finds mention at Serial No. 80 of the list of Page 0241 psychotropic substances mentioned in the Schedule to the Act. The Chemical constitution of MDMA, as per the list in the Act is as under:

(+)-N-alpha-dimethyl-3,4-(methylendioxy) phenethylamine

15. As per the documents received from USA, the substance recovered and described as MDMA or ecstasy was 3,4- Methylenedioxymethamphetamine. According to the petitioner, the substance recovered from the petitioner is not a controlled or prohibited substance in India. According to him, the Chemical composition of the drug described as MDMA in the schedule at Serial No. 80 is different from the drug recovered from the petitioner. Apart from MDMA as described at Serial No. 80, the list also describes MDA at Serial No. 15 as 3,4-Methylenedioxyamphetamine. Further, the last entry says "SALTS & PREPARATION OF ABOVE". Therefore, when the composition of MDMA or MDA as well as that of the substance recovered from the petitioner are compared, it will be clear with the application of the last item in the list, that MDMA recovered from the petitioner is also a psychotropic substance recognized by the NDPS Act and its possession is an offence. There is no dispute that the alleged quantity of the drug recovered from the petitioner or his associates is more than the commercial quantity. For those counts in which the drug has been recovered from the petitioner, the petitioner would have been guilty of the offence in India for being in possession thereof. For the offences in which recoveries have been made from others who had secured the drug from the petitioner, the petitioner is guilty of abetment/conspiracy etc. This plea of the petitioner that the drug recovered from the petitioner or the drugs in relation to which the petitioner is required in USA is not a drug which is prohibited or controlled in India is incorrect.

16. The petitioner's counsel Mr. Ohri has raised a question of quantity of MDMA recovered by the Govt. of USA from the petitioner and has argued that the quantity recovered will not make the offence an extradition offence in India. The learned ACMM has further examined the notification in S.O. 527(E) dated 16.7.1996 which specifies the quantity in relation to narcotic drugs or psychotropic substance which can be small quantity or commercial quantity. MDMA Ecstasy finds place at Serial Nos. 192 and 194 of this notification (also available in the new notification, S.O. 1055(E) dated 19.10.2001 at Serial Nos. 134 and 138). Composition of MDMA at Serial No. 192/134 is ()-N, alpha-dimethyl-3, 4-(methylene dioxy) phenethylamine whereas at Serial No. 194/138 it is 2-methoxy-alpha-methyl-4,5-(methylenedioxy)phenethylamine. Commercial quantity against each is 10 gm while small quantity is 0.5 gm. At Serial No. 218 of the notification of 1996 and at Serial No. 239 of the notification of 2001, the entry mentions "any mixture or preparation that of with or without a neutral material, of any of the above drugs". Thus the substance recovered from the petitioner, even if described as 3,4-methylenedioxyphenethylamine will be covered by the definition of psychotropic substance as it obtains in India and possession thereof barred by the NDPS Act. In case the drug recovered from the offender is more than small quantity, the punishment can be minimum of 10 years and can go up to 20 years or even more. The learned ACMM has further found that so far as quantities recovered are concerned the Union of India Page 0242 relies upon the evidence produced viz. evidence submitted by the requesting State. Seven laboratory reports have been submitted by the requesting State. The list of the report is as under:

ATTACHMENT B

Analysis of approximately 1,000 MDMA tablets seized from Alan BLAKEY on September 27, 2000. This analysis is related to Count Seven of the Indictment.

ATTACHMENT C

Analysis of approximately 1,000 MDMA tablets purchased from David CHAVEZ on March 23, 2001. This analysis is related to Count Eight of the Indictment.

ATTACHMENT D

Analysis of approximately 150 MDMA tablets purchased from Estanislao Noe CARRASCO on May 9, 2001. This analysis is related to Count Eleven of the Indictment.

ATTACHMENT E

Analysis of approximately 200 MDMA tablets seized from Dwight VINCENT on August 17, 2001. This analysis is related to Count Fourteen of the Indictment.

ATTACHMENT F

Analysis of approximately 400 MDMA tablets purchased from Michael O'MEALEY on September 19, 2001. This analysis is related to Count Eighteen of the Indictment.

ATTACHMENT G

Analysis of approximately 400 MDMA tablets purchased from Estanislao Noe CARRASCO on September 21, 2001. This analysis is related to Count Twenty-One of the Indictment.

ATTACHMENT H

Analysis of approximately 4,100 MDMA tablets from Stephanie VILLARRUEL on October 9, 2001. This analysis is related to Count Twenty-Four of the Indictment.

17. The laboratory report (Attachment B) of net weight of 215.6 gram (1007.5 MDMA) tablets shows the amount of pure drug as 79.8 gm. The other reports, Attachment C to H, have not indicated the pure drug amount in the seizures. But keeping in view the enormous quantity of seizure, some from the petitioner and some from those who received the drug from the petitioner it can be reasonably inferred that the amount of the pure drug was more than 0.5 gms in those recoveries/ transactions. As such, the offences alleged against the petitioner are of commercial quantity. Even if one seizure/recovery is found to be of more than small quantity, the petitioner would be worthy of extradition. Hence, the plea of the petitioner that he at best could be found to have committed an offence in respect of `small' quantity of psychotropic substance has no force.

18. Mr. Ohri then argues that there is no prima facie case against the petitioner justifying his extradition. After the discussion made above it is not necessary to discuss this plea in any detail. However, one can look at the scope of inquiry entrusted to the ACMM. Article 9(3) of the Treaty says that Page 0243 the request for extradition has to 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. Thus what is necessary to examine is not whether there is sufficient material for conviction. Only thing necessary to examine is whether there is material enough to commit a person to trial. Section 7 of the Extradition Act requires nothing more. It prescribes that 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 friable by a court of Sessions or High Court.

19. Another important thing to notice is that the Magisterial inquiry under Section 5 of the Extradition Treaty 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. When the Government opts to ask for a Magisterial inquiry, its scope is only limited to the extent described above. For such inquiry only the documents enclosed with the request for extradition and the statements of the investigating officers may suffice. In this case there is no dearth of material supporting the request for extradition and providing evidence of a prima facie case for committal for trial. It may be mentioned here that the request for extradition is supported by a statement under the subheading 'Exhibits' showing the specific paragraphs of the affidavit of Special Agent, R. Keith Brown, which provides evidence for each of the counts of indictment.

20. Mr.Ohri submits that Magisterial inquiry for the purpose of committal cannot be complete until documents as mentioned in Section 207 of the Cr.P.C. are supplied to the petitioner. This, as Shri P.P. Malhotra, the learned Additional Solicitor General has said, is a plea arising out of confusion of the perception of Mr. Ohri about the requirements of such an inquiry. The special law applicable to the inquiry under the Extradition Act are the Extradition Act and the Treaty. There is no dispute that such requirements have been fully complied with in this case. Article 9(3)(c) requires furnishing of 'information' and not 'documents'. The Supreme Court in Rosiline George v. UOI (supra) has observed that the Act being a special provision dealing with extradition of fugitive criminals, shall exclude the application of the general provisions of Cr.P.C., 1973.

21. Thus, there is nothing of any merit in the submissions of the petitioner and there is no scope to interfere with the report of the Magisterial inquiry which is elaborate and comprehensive. The writ petition is dismissed with costs.

22. On 25.5.2004 this Court made an interim order directing that the petitioner shall not be extradited without the leave of the Court. That order now stands vacated.