UK court clears extradition of Nirav Modi, says he has a ‘case to answer in India’

A UK court Thursday ruled that fugitive diamantaire Nirav Modi could be extradited to India to stand trial, stating a prima facie case has been established against him and that he has a “case to answer for in India”. Modi and his uncle Mehul Choksi are accused of routing transactions of about Rs 13,600 crore through fraudulent Letters of Undertaking (LoUs) of Punjab National Bank (PNB). Both men left India in the first week of January 2018, weeks before the scam was revealed.

In its order, the Westminster Magistrates’ Court in London ruled that Modi “conspired to destroy evidence and intimidate witnesses”. District Judge Samuel Goozee said that Barrack 12 at Arthur Road Jail in Mumbai is fit for Modi and that he would not be denied justice after his extradition to India.

“I am satisfied that there is evidence upon which NDM [Nirav Deepak Modi] could be convicted in relation to the conspiracy to defraud the PNB. A prima face case is established,” the judge said.

He further said a prima facie case to have been established on all charges brought up against Modi by the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) — money laundering, intimidation of witnesses and disappearance of evidence.

On arguments made by Modi’s lawyers that he suffers from severe depression, the judge ruled that such symptoms are not unusual in a man in his circumstances. He further ruled that Modi would be given adequate medical treatment and mental health care in the jail.

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The court also dismissed Modi’s claim that Union Law and Justice Minister Ravi Shankar Prasad tried to influence the case against him.

Meanwhile, the Ministry of External Affairs said the Indian government would liaise with the UK authorities early for the extradition of Modi to India.

The court’s findings would now be sent to the Secretary of State for Home Affairs, Priti Patel, who is authorised to order extradition under the India-UK Extradition Treaty and has two months within which to make that decision.

Under the Extradition Act 2003, India is a designated Part 2 country, which means it is the Cabinet minister who has the authority to order a requested person’s extradition after considering a number of further issues.

Under the provisions of the act, the Secretary of State must consider the possible imposition of the death penalty, in which case extradition cannot be ordered; the rule of specialty, which prohibits a person being dealt with in the requesting state for matters other than those referenced in the extradition request; and whether or not the person was in the UK following extradition from another state, in which case that states permission must be obtained before extraditing to a third state.

Modi now has only 14 days to approach the High Court and seek leave to appeal after the Home Secretary has made her decision known. Any appeal, if granted, will be heard at the Administrative Division of the High Court in London.

Nirav Modi extradition |A timeline

The CBI has also termed the judgement as “significant” and said it should serve as a reminder to all fugitives, who have indulged in large value frauds, that they cannot escape the law merely by changing their countries of residence.

In a statement, the CBI said the court order vindicated the painstaking probe carried out by the agency especially since Modi had raised various issues on admissibility of evidence, fairness of investigation, trial, prison conditions, availability of health facilities in India and extraneous consideration, with a view to divert attention from his own acts.

Modi is subject to two sets of criminal proceedings, with the CBI case relating to a large-scale fraud upon PNB through the fraudulent obtaining of LoUs or loan agreements, and the ED case relating to the laundering of the proceeds of that fraud. The ED has alleged that Modi diverted over Rs 4,000 crore of the Rs 6,519 crore outstanding fraudulent LoUs issued by PNB to his firms, through 15 “dummy companies” based in the UAE and Hong Kong.

He is also an accused in separate criminal proceedings in (i) a CBI case related to the alleged PNB-LoU fraud, and (ii) an ED case on the laundering of the proceeds of the alleged fraud at PNB. Based on the ED’s complaint, Nirav Modi is also facing charges of “causing” evidence-tampering and “criminal intimidation” of witnesses.

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The fugitive diamond trader has, however, denied any wrongdoing and has told the UK court that obtaining LoUs is standard practice for companies.

The jeweller has been in prison since he was arrested on March 19, 2019, on an extradition warrant executed by Scotland Yard and his attempts at seeking bail have been repeatedly turned down.

During a series of hearings in the course of the extradition case last year and early this year, Modi’s lawyers submitted legal opinion from retired High Court judges and legal experts in India, stating that the charge of cheating is not made out, as CBI has stated that PNB officials were “hand-in-glove” with him in issuing LoUs. They had also submitted legal opinion on the issue of destruction of evidence and intimidation of witnesses by Modi.

PNB fraud |How the system was gamed

On January 8, the court heard detailed arguments from both sides about why Modi’s deteriorating mental health condition does or does not meet the Section 91 threshold of the Extradition Act 2003 which has most recently been used in the UK to block the extradition of Wikileaks founder Julian Assange on the grounds of it being unjust and oppressive as he is a high suicide risk.

As in the Assange case, the issues here evidentially are the same the mental condition of Modi and the treatment he would receive given the prison conditions in India, said Montgomery, pointing to her client’s severe depression and risk of suicide due to his lengthy incarceration since March 2019 and called for his discharge.

The CPS challenged the defence stance to say that the two cases were of a completely different nature and instead sought an adjournment in the event that Section 91 was to be engaged, to allow an independent evaluation of medical records by a consultant psychiatrist and appropriate assurances be acquired in terms of his care in India.

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