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:
The extradition request for Nirav Modi is a high-profile case in India and I
have no doubt that Justice Thipsay as a former High Court Judge has overseen many
high profile cases in his time. He entered into the arena of giving evidence in these
extradition proceedings with his eyes open to the focus and scrutiny the case would
inevitably receive in India. It is inevitable he could have foreseen his affiliation to the
Congress Party may attract interest. Having checked his report dated 20 th December
2019 and 29 th June 2020, I note he has never disclosed his party-political affiliation
either in the report’s biography or in relation to his declaration as an expert and
disclosure of any potential conflict of interests. Justice Thipsay did not initially refuse
to give evidence again in these proceedings but he requested the court sit in private as
he says “it is likely to reduce the India media’s interest and the risk that the GOI will
again use my evidence as a political vehicle and to malign me”. Albeit I had regard to
the interests of Justice Thipsay as a witnesses, sitting in private was not justified
merely on the ground, that having regard to the nature of his evidence, testifying
publicly may result in further adverse commentary about him. I also refused to
postpone reporting under s.4(2) Contempt of Court Act 1981. There was no clear
evidence that reporting his evidence will give rise to a substantial risk of prejudice to
the administration of justice in these extradition proceedings. (Para 109)
I do not concern myself with political commentary and opinions of politicians in India
about Justice Thipsay’s evidence. However, Justice Thipsay is a retired High Court
Judge in India, giving evidence as an expert in this extradition request on behalf of
NDM. He is aware of the nature and interest in these proceedings. He would equally
be aware of his own political connections to Congress which it transpires he joined
after his retirement. Justice Thipsay refused to give live evidence when the extradition
hearing resumed. Justice Thipsay is a retired judge who has aligned himself with a
political party on his retirement and received adverse commentary in the media.
However, he also engaged and courted with the media himself. His additional reports
and opinions subsequently submitted by the defence have not been subject to scrutiny.
His unwillingness to give further evidence in these proceedings, simply because he did
not get the protections which in my view there was no sound basis to grant, meant his
opinion went unchallenged by the GOI. There has been no ability for the Court to
51further scrutinise his expert testimony. Overall, these factors have the effect, in my
assessment, of nullifying any weight I would have attached to his evidence. (Para 110)
Evidence of Justice Katju:
Justice Katju’s evidence centered primarily on the fact Indian Courts have become
politicised. He states that in recent years the Supreme Court in India has “practically
surrendered before the Indian Government and is doing its bidding and is not acting
as an independent organ of the state protecting the rights of the people as it was
supposed to be” and in his view the “Indian judiciary has largely surrendered before
the political executive”. He gives example of a case heard by the Supreme Court which
in his view have been perversely decided and the Chief Justice was “simply doing the
bidding of the Indian Government. He has been rewarded as a quid pro quo by being
nominated as a member of Parliament after retirement”. (Para 122)
In cross-examination, Justice Katju made some astonishing, inappropriate
and grossly insensitive comparisons. He stated that because the BJP cannot solve the
economic crises it is just like “Hitler and the Jews”. “Nirav Modi is the Jew that must
be blamed for all the problems in India”. When challenged about his imputations
about the investigation, he stated that he was not commenting on the merits of the
case but that NDM cannot get a fair trial. (Para 129)
Albeit, some political commentary could be described as ill-advised, there is
nothing in the volumes of media, broadcasting or social media links that have been
referred to me in the voluminous defense bundles that gives any indication that
politicians are trying to influence the outcome of any trial, let alone NDM’s trial or
that the trial process itself would be susceptible to such influence. I reject any
submission that the GOI have deliberately engineered a media onslaught. I attach little
weight to Justice Katju’s expert opinion. (Para 138)
Despite having been a former Supreme Court judge in India until his retirement in 2011 his evidence was in my assessment less than objective and reliable. His evidence in Court appeared tinged with resentment towards former senior judicial colleagues. It had hallmarks of an outspoken critic with his own personal agenda. I found his evidence and behaviour in engaging the media the day before giving evidence to be questionable for someone who served the Indian Judiciary at such a high level appointed to guard and protect the rule of law.
Despite making commentary about the fairness of any trial process in India,
he accepted on a number of occasions in cross-examination that he had not considered
the evidence and it is evident from his report he certainly had not considered the full
requests from the GOI. He made bold assertions about corruption across the judiciary
in India (including former Chief Justices) and that the Supreme Court had
surrendered itself to the executive. Of note, despite being critical of a former Chief
Justice passing a verdict in a Supreme Court case in exchange for a nomination to the
upper house of Parliament in India on his retirement on a quid pro quo basis,
suggesting collusion and corruption, Justice Katju himself secured appointment by
the Government to Chairman of the Press Council of India following his own
retirement.
Despite being highly critical of the “trial by media” and its impact on NDM’s case, he
took the astonishing decision to brief journalists in relation to the evidence he was
giving in these proceedings, creating his own media storm and adding to the
heightened media interest to date.
Fair Trial in India:
India is governed by it written constitution which has at its core the fundamental principle of
the independence of the judiciary by virtue of the separation of powers between judiciary, the executive and the legislature. There is no cogent or reliable evidence that 60the judiciary in India are no longer independent, or capable of managing a fair trial even where it is a high-profile fraud with significant media interest. (Para144)
There is no evidence which allows me to find that if extradited NDM is at real risk of suffering a flagrant denial of justice. (Para 145)
Prison Conditions
GOI has provided comprehensive assurances in relation to the conditions
NDM will be detained in Barrack 12, supported by a video taken in August 2020, which
I place great weight on as being the best evidence before me to assess the conditions
in Barrack 12. I reject the submission that the video does not materially assist this
Court’s assessment of the actual conditions within Barrack 12. I find that it is entirely
corroborative of the conditions set out in the GOI’s assurance and in fact goes further
as the video shows better sanitary and washing facilities than described in the
accompanying note to the assurance dated 8 th June 2019. (Para 208)
The evidence from Mr Yadav, the Indian lawyer who describes the conditions
he has seen in Barrack 12 are simply not born out on the video evidence. Mr Yadav’s
evidence is placed before me by way of letters rather than sworn statements, his
evidence cannot be tested and I place little to no weight on the contents of those letters
and reject the defense submission that this provides me with direct evidence of the conditions in Barrack 12. The video taken by GOI of the cell at Barrack 12 and the facilities contradicts in every way the descriptions given by Mr Yadav. In any event the video was filmed on 20 th August 2020. The last time Mr Yadav appears to have visited Barrack 12 was in June 2018.
…. I find that in accordance with the note accompanying the assurances provided to NDM “the prison authorities are bound by this assurance provided for Nirav Modi and there is no discretion whereby any other administrative, local government or judicial authority would override it as per the law of the land”. That statement is compelling evidence of the commitment to comply with the terms of the assurance by the GOI. (Para 211)
….. The assurances set out the monitoring arrangements through the NHRC, Maharashtra State Human Rights Commissions and judicial officers. The GOI will know that if the assurances are broken, they will be very publicly broken in light of NDM’s high profile. Just as Senior District Judge (Magistrates’ Court) Arbuthnot (as she then was) observed in her judgment in Mallya, I have no doubt NDM’s lawyers would report any breach of assurance to this court as well as the Courts in India. That in turn would create “a perfect storm of publicity” as the Senior District Judge concluded in Mallya. That conclusion is equally apposite in this case. Extradition arrangements work on the basis of trust and any failure to abide by the assurances given by the GOI in NDM’s case would doubtlessly affect the trust between this court and the GOI. I have no reason at all to think that the GOI would want to breach that trust by not upholding their assurances provided in support of this extradition
request. (Para 213)
…. In light of the great weight I have placed on the assurances provided in this case by the GOI and the “best evidence” being the video evidence, I reject Dr Mitchells reservations and concerns. There is no doubt in my mind that the conditions NDM will experience in Barrack 12 are far less restrictive and far more spacious than the current regime he is being held in within the prison estate in our own jurisdiction. (Para 215)
Final Decision:
Therefore, in accordance with s.87(3) EA 2003 I am sending this case to the
Secretary of State for a decision as to whether Nirav Modi is to be extradited.
Read Full Judgement:
Mystery of Law and Justice 