Nirav Modi to be extradited from UK to India; Orders Magistrate

An extradition request submitted by the Government of India, the Requesting State (“GOI”) for the extradition of Nirav Deepak Modi (“NDM”):

On presentation of evidence:

“Unlike the evidence from the Defence, the evidence produced by the GOI in the case, through no fault of Counsel, was poorly presented and very difficult to navigate. Observations I note were similarly made by the Senior District Judge (Magistrates’Courts) in Mallya. I hope the GOI take these observations on board in relation to future requests.”
Para 12

In Devani v. Kenya [2015] EWHC 3535 (Admin) Aitkens LJ analysed the correct approach to
extradition u/s.84(1), as under:

“ 47. In the case of a country to which s.84(1) EA 2003 applies, a three-stage process
is involved once the DJ is satisfied that the request document itself establishes that
the conduct alleged is criminal in accordance with the laws of the requesting state.
The first stage, following the decision of the House of Lords in Norris v. Government
of the United States of America, is to identify, for the relevant charge, the “essence of
the conduct” which is alleged by the requesting state. Secondly, the DJ must
determine, upon the assumption that the relevant conduct had occurred in the UK,
whether that conduct would be an offence under the UK law. For this purpose, the
requesting state will often produce “notional English charges” identifying the
particular UK offence which is said to be constituted by the “essence of the conduct”
alleged. Thirdly, the DJ must determine whether the requesting state has proved, on
the basis of all admissible evidence (taking account of the admissibility rules set out
in sections 84(2) – (4), s.202 and s.205 of the EA) whether there is sufficient evidence
to substantiate the conduct alleged.

My role is to consider whether a tribunal of fact, properly directed, could reasonably
and properly convict on the basis of the evidence. I am not required to be sure of guilty
in order to send the case to the Home Secretary. The extradition court must conclude
that a tribunal of fact, properly directed and considering all the relevant evidence,
could reasonably be sure of guilt.

Extracts of findings of the Magistrate:

I do not accept the submissions that NDM was involved in legitimate business and using the LOUs in a permissible fashion. It would not be in PNBs interests to create such enormous financial exposure through a financial product which the evidence from the Bank officials confirms is not designed for general business lending, I find there is no evidence of genuine import transactions and the applications for the LOUs was being done dishonestly. The statement of Rajendra Keshri is supportive of the fact the LOUs obtained by NDM’s firms were used to re-pay liabilities in relation to buyer’s credit obtained from earlier LOUs. Suggestion that buyers credit obtained by the Nirav Modi Firms was required for making payment for genuine imports from suppliers mentioned in the LOUs is not born out by statements from the dummy directors in the Hong Kong and Cairo based companies. Their evidence is that these companies were not genuine suppliers and were shadow companies controlled by NDM through several employees who were represented as directors of the
companies. NDM’s firms’ business transactions were primarily with these dummy companies. The statements demonstrate that the circulation of pearls, diamonds and gold between the NDM firms and the Dubai and Hong Kong based companies was not genuine business and the companies were being used for transferring funds generated “in the guise of sale – purchase / export – import of goods” colloquially referred to as “round tripping transactions”. Again, there no evidence demonstrating that the NDM firms had any sanctioned facility with PNB.

Although there may be no direct evidence of NDM entering into an agreement with Bank officials and his other alleged conspirators, the evidence of the links between Nirav Modi, Nehal Modi, Mihir Bhansali, Gokulnath Shetty and Yashwant Joshi alone combined with my other findings above, in particular the lack of evidence of any sanctioned limit agreed with the Bank; the manner in which the LOUs were obtained and concealed, the manner to which the LOUs was used, the actions of NDM, his brother and Mr Bhansali after the CBI investigation opened cumulatively and progressively eliminate the alternative narrative put forward on NDMs behalf. The combination of the evidence taken as a whole create an inevitable conclusion NDM, his brother, Mr Shetty, Mr Bhansali and Mr Joshi Jie Zhang, were operating together dishonestly with other associates and banking officials to defraud the PNB.

Proof of Mense Rea need not be as per English Law:

A request need not identify the relevant mens rea of the equivalent English offence for
the purposes of satisfying dual criminality. Instead it suffices that the necessary
mental element can be inferred by the court from the conduct identified in the request
documents or that the conduct alleged includes matters capable of sustaining the
mental element necessary under English law. (Para 97)

Scrutiny by the Court of the description of conduct alleged to constitute the
offence specified, is not an enquiry into the adequacy of the evidence summarised in
the request. The Court is not concerned to assess the quality or sufficiency of the
evidence in support of the conduct alleged; R (Castillo) v. King of Spain [2005] 1WLR
1043. (Para 100)

Evidence of Justice Thipsey:

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Web series disrespecting religious symbols of a community is not acceptable in law.

The makers of web series ‘Tandav’ are not entitled to anticipatory bail. Aparna Purohit, content director of Amazon Prime Videos, denied anticipatory bail by Allahabad High Court

The basic philosophy of the Constitution is to permit the people of all faith to practice, profess and propagate their religion freely without hurting or acting against the people who profess or practice different religious faith than theirs.

Therefore, it is a onerous duty of every citizen to respect the feelings of the people of other faith even while making a fiction.

The irresponsible conduct against the inherent mandate of the Constitution of India by anyone affecting the fundamental rights of the large number of citizens cannot be acquiesced to only because of the tendering of unconditional apology after committing the alleged act of crime and indiscretion.

The reference to the disclaimer cannot be considered to be a ground for absolving the applicant of permitting the streaming of an objectionable movie online.

The use of the word “TANDAV” as the name of the movie can be offensive to the majority of the people of this country since this word is associated with a particular act assigned to Lord Shiva who is considered to be creator, conservator and destroyer of the mankind all together.

Speech or expression causing or likely to cause disturbance or threats to public order or divisiveness and alienation amongst different groups of people or demeaning dignity of targeted groups,is against the Preamble of the Constitution of India. It violates dignity, liberty and freedom of others and poses threat to the unity and integrity of the nation and may be dealt as per Sections 153-A,295-A and 505(2) I.P.C.

A brazen tendency of Hindi cinema:

This Court takes further judicial notice of the fact that whenever such crimes are committed by some citizens of the country, like the applicant and her co-accused persons, and it is made the subject matter of demonstration and public protest, the forces inimical to the interest of this country become active and they make it an issue and raise it before different national and international forums alleging that the Indian citizens have become intolerant and “India”has become unsafe place to live. Continue reading “Web series disrespecting religious symbols of a community is not acceptable in law.” →

UK Supreme Court holds Uber drivers as workers subject to employment tribunal.

The definition of a “worker” in section 230(3) of the Employment Rights Act 1996 and other relevant legislation includes anyone employed under a contract of employment but also extends to some individuals who are self-employed. In particular, the definition includes an individual who works under a contract

“whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual”.

The judgment emphasises five aspects of the findings made by the employment tribunal which justified its conclusion that the claimants were working for and under contracts with Uber.

First, where a ride is booked through the Uber app, it is Uber that sets the fare and drivers are not permitted to charge more than the fare calculated by the Uber app. It is therefore Uber which dictates how much drivers are paid for the work they do;

Second, the contract terms on which drivers perform their services are imposed by Uber and drivers have no say in them

Third, once a driver has logged onto the Uber app, the driver’s choice about whether to accept requests for rides is constrained by Uber. One way in which this is done is by monitoring the driver’s rate of acceptance (and cancellation) of trip requests and imposing what amounts to a penalty if too many trip requests are declined or cancelled by automatically logging the driver off the Uber app for ten minutes, thereby preventing the driver from working until allowed to log back on.

Fourth, Uber also exercises significant control over the way in which drivers deliver their services. One of several methods mentioned in the judgment is the use of a ratings system whereby passengers are asked to rate the driver on a scale of 1 to 5 after each trip. Any driver who fails to maintain a required average rating will receive a series of warnings and, if their average rating does not improve, eventually have their relationship with Uber terminated.

A fifth significant factor is that Uber restricts communications between passenger and driver to the minimum necessary to perform the particular trip and takes active steps to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.

Taking these factors together, the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Drivers are in a position of subordination and dependency in relation to Uber such that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance. The Supreme Court considers that comparisons made by Uber with digital platforms which act as booking agents for hotels and other accommodation and with minicab drivers do not advance its case. The drivers were rightly found to be “workers”.

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