SARABJIT RICK SINGH versus UNION OF INDIA

25. One Marietta I. Geckos has affirmed an affidavit stating about:- (i) prosecutor's background and experience; (ri) procedural history ; (ill) the charges and potential sentences ; (iv) penalties ; (v) statutory provisions ; (vi) exhibits; and (vii) his professional opinion on the charges and made his conclusion as under:-

26. Indictments against the appellant are 27 in number which can briefly be classified as – [2007] 13 (Addi.) S.C.R. (a) consprracy (b) possession of drugs ; (c) drug trafficking; (d) money laundering; and ( e) use of telecommunication facilities for drug trafficking. Report of the Learned Magistrate

27. Admittedly the learned Magistrate did not find any primafacie c case in regard to Count Nos. 9, 16, 17, 19, 20, 22 and 23. Allegations against the Appellant

28. Docwnents received from the Government of United States of America show that the substance recovered was described as MDMA D or ecstasy was 3,4-Methylendeioxymethamphetamine. The chemical composition of the drug described as MDMA finds place at Serial No.80 in the schedule. The list also describes MDMA at Serial No.15 as 3,4- Methylendeioxymethamphetamine. The last entry states "SALTS & PREPARATION OF ABOVE". The article recovered is a psychotropic E substance under the Narcotic Drngs and Psychotropic Substances Act, 1985, possession whereof by itself contributes an offence. The quantity of the drug recovered answers the description of commercial quantity. In India, an accused found guilty of the commission of the said offence, may be punished with rigorous imprisonment for a minimwn period of 10 years F which may extend to 20 years besides fine.

29. The chemical reports also show that the drug is a controlled drug. Procedure

30. Article 9(3) of the Treaty says that the request for extradition should be supported by such infom1ation as would justify the committal for trial of the person if the offense had been committed in the Requested State. Section 7 of the Extradition Act prescribes that the Magistrate shall inquire into the case in the same manner and shall have the same H jurisdiction and powers, as nearly as may be, as ifthe same were one 341 "'t- triable by a Court of Sessions or High Court.

31. Difference between incorporation by reference and a mere citation is now well known in view of the decisions of this Court in Karnataka State Road Transport Corporation v. B.A. Jayaram and Ors., [1984] Supp. SCC 244. and Nagpur Improvement Trust v. B Vasantrao and Ors., and Jaswantibai and Ors., [2002] 7 SCC 657. -. )( Incorporation by reference provides for a legislative device where the legislature instead of repeating the provisions of the statute incorporates it in another statute.

32. We may, however, notice that in Mis. Girnar Traders v. State c of Maharashtra and Ors., (2007) 10 SCALE 391, the question has been referred to a larger bench. We would, however, proceed on the assumption that the doctrine of incorporation of reference as said to be containing in Section 7 of the Act would apply in the instant case. We may, however, hasten to add that the said Act being a self contained Code, D the provisions thereof must be applied on their own terms. Application of the Statutory provisions

33. Sections 208 and 209 of the Code of Criminal Procedure, 1898 contemplate taking of such evidence as may be produced in support of E the prosecution or on behalf of the accused that may be called for by the Magistrate. Compliance of the principle of natural justice or the extent thereof and the requirement of law is founded in the statutory scheme. The Magistrate is to make an enquiry. He is not to hold a trial. Code of Criminal Procedure makes a clear distinction between an enquiry, F investigation and trial. Authority of the Magistrate to make an enquiry would not lead to a final decision wherefor a report is to be prepared. Findings which can be rendered in the said enquiry may either lead to discharge of the fugitive criminal or his commitment to prison or make a report to the Central Government forwarding therewith a written statement G which the fugitive criminal may desire to submit for consideration of the Central Government. Sub-section (2) of Section 7 envisages taking of such evidence as may be produced in support of the requisition of the foreign . State as also on behalf of the fugitive criminal. It is open to the fugitive [2007] 13 (Addi.) S.C.R. A criminal to show that the offence alleged to have been committed by him i.s of political character or the offence is not an extraditable offence. He may also show that no case of extradition has been made out even otherwise. The Magistrate, therefore, in both the situations is required to arrive at a prima facie finding either in favour of fugitive criminal or in B support of the requesting state. [See Sohan Lal Gupta (dead) through LRs. And Ors v. Asha Devi Gupta (Smlj and Ors., [2003] 7 SCC 492].

34. What would constitute "evidence" came up for consideration before this Court in Ramnarayan Mor and Anr v. State of Maharashtra, C [1964] 5 SCR 1064 to hold that the documents also formed part of the evidence within the meaning of Section 207 A ( 6) of the Code of Criminal Procedure, 1898.

35. In a proceeding for extradition no witness is examined for establishing an allegation made in the requisition of the foreign State. The D meaning of the word "evidence" has to be considered keeping in view the tenor of the Act. No formal trial is to be held. Only a report is required to be made. The Act for the aforementioned purposes only confers jurisdiction and powers on the Magistrate which he could have exercised for the purpose of making an order of commitment. Although not very E relevant, we may observe that in the Code of Criminal Procedure, 1973, the powers of the committing Magistrate has greatly been reduced. He is now required to look into the entire case through a very narrow hole. Even the power of discharge in the Magistrate at that stage has been taken away.

36. Law in India recognizes affidavit evidence. (See Order IXX of the Code of Civil Procedure and Section 200 of the Code of Criminal Procedure). Evidence in a situation of this nature would, thus, in our opinion mean, which may be used at the trial. It may also include any document G which may lead to discovery of further evidence. Section 3 of the Indian Evidence Act which defines "evidence" in an enquiry stricto sensu may not, thus, be applicable in a proceeding under the Act.

37. Section 10 of the Act provides that the exhibits and depositions (whether received or taken in the presence of the person, against whom i 343 they are used or not) as also the copies thereof and official certificates of A ,_ facts and judicial documents standing facts may, if duly authenticated, be received as evidence. Distinction must be borne in mind between the evidence which would be looked into for its appreciation or otherwise for a person guilty at the trial and the one which is required to make a report upon holding an enquiry in terms of the provisions of the Act. B Whereas in the trial, the court may look into both oral and documentary – •. evidence which would enable him to ask question in respect of which the accused may offer explanation, such a detailed procedure is not required to be adopted in an enquiry envisaged under the said Act. If evidence stricto sensu is required to be taken in an enquiry forming the basis of a c prima facie opinion of the Court, the same would lead to a patent absurdity. Whereas in a trial the court for the purpose of appreciation of evidence may have to shift the burden from stage to stage, such a procedure is not required to be adopted in an enquiry. Even under the Code of Criminal Procedure existence of strong suspicion against the D accused may be enough to take cognizance of an offence which would not meet the standard to hold him guilty at the trial.

38. Reliance has been placed by Mr. Vishwanathan, learned counsel for the appellant, on Land Acquisition Officer and Manda! Revenue E Officer v. V Narasaiah, [2001] 3 SCC 530 wherein interpreting Section 51-A of the Land Acquisition Act this Court held that the certified copy of a registered sale deed would be admissible in evidence. The said decision, we may notice, has been approved by the Constitution Bench r-..- 4.. of this Court in Cement Corporation of India Ltd. v, Purya and Ors., [2004] 8 sec 270. It may be true that a document does not prove itself F Its contents, unless admitted, should be proved in terms of the provisions of the Evidence Act, unless the contents of the documents are said to be admissible by reason of a provision of a statute, as for example Section 90 of the Evidence Act. But what misses the aforementioned submission/ G contention is that whereas the contents of the document is to be proved for the purpose of trial but not for the purpose of arriving at an opinion in regard to existence of a prima facie case in an enquiry. Strict formal proof of evidence in an extradition proceeding is not the requirement of law. While conducting an enquiry the Court may presume that the contents of H [2007] 13 (Addi.) S.C.R. A the documents would be proved and if proved, the same would be i -< admitted as evidence at the trial in favour of one party or the other. We, therefore, are unable to accept the submission of Mr. Vishwanathan that even at this stage the affidavits by way of evidence of the accomplices Michael Ryan 'O' Mealey and Alan Lane Blackley who had been B arrested and pleaded guilty and had been cooperating with DEA Agent were required to be excluded from consideration by the learned Magistrate without any corroboration.

39. Our attention has been drawn to a decision of this Court in c Ramgopal Ganpatrai Ruia and Anr. v. The State of Bombay, [1958] SCR 618 wherein this Court upon noticing the decisions of the Bombay High Court in Queen Empress v. Namdev Satvaji, (1887) I.L.R. 11 Born. 372 and of the Allahabad High Court in Lachman v. Juala, (1882) I.L.R. 5 All. 161 held that the Magistrate should commit the accused for trial if D he is satisfied that sufficient grounds for doing so have been made out. It is difficult to apply those crucial words "sufficient grounds" in an extradition -f case. Therein, this Court considering the evidence brought on records, posed a question as to whether the same constituted a prima facie case, E or that the voluminous evidence adduced therein was so incredible that no reasonable body of persons could rely upon it.

40. Existence ofprimafacie case or bringing on record credible evidence at the stage of commitment is again a requirement of a statute. F Section 7 speaks of manner, the jurisdiction and power of the Magistrate. ;.. ~' It does not set the standard of proof. What is necessary for passing a judicial urder may not stricto sensu be necessary for making a report.

41. Reliance has also been placed on Rajpal Singh and Ors v. Jai Singh and Anr., [1970] 2 SCC 206 wherein this Court opined : "Though the language of Section 209 differs from that in Section 207 A, it is well settled that under neither of them has the Magistrate the jurisdiction to assess and evaluate the evidence before him for the purpose of seeing whether there is sufficient evidence for conviction. The reason obviously is that ifhe were to do that he 345 ,,._ would be hying the case himself instead of leaving it to be tried by A the Sessions Court, which alone has under the Code the jurisdiction to try it. As stated earlier, both the parties led evidence. Instead of finding out whether there was sufficient evidence to make out a prima facie case, what the Magistrate did was to evaluate the evidence by an elaborate assessment of it and held, as ifhe was B trying the case, that between the two versions the evidence of witnesses examined by the appellants was preferable to that led by the complainant, that the defence evidence was more probable and that there were inconsistencies and improbabilities in the prosecution evidence, and finally that that evidence was interested c and liable, therefore, to be discarded. There may perhaps be some force in what the Magistrate has said about the evidence, but it is clear that there was something which could be said on both the sides. The Magistrate, therefore, ought to have left the case for the Sessions Court to decide and come to its conclusion which of D ~ i the two rival versions was acceptable on the facts and circumstances of the case." The said decision, thus, is an authority for the proposition that at that stage the Magistrate was not required to evaluate the evidence so as to arrive at a finding that the accused is or is not guilty. Evaluation of E evidence or appreciation thereof, in our opinion, is not within the domain of the Magistrate at that stage.

42. Decision of the Queen's Bench Division in "Re Tomlin's application" disposed of on 18th November, 1994 has been relied upon F to say that the court was under an obligation to see that the evidence of the witnesses be not unfairly admitted. Queen's Bench Division therein excluded the hearsay evidence in regard to the contents of a document. Contention in regard to unfair admission of the document, however, was not pursued. The said principle would apply in a case where there is no G evidence to establish that the crime has been committed by the defendants or where a judge comes to the conclusion that the prosecution evidence taken at its face value would not lead to conviction. Approach of the English Courts is to lay test as in the case of the submission of the [2007) 13 (Addi.) S.C.R. A defendant at the end of the prosecution evidence i.e. end of trial, the defendant would not be called upon either to explain the prosecution case or to enter into his defence. There may not be any dispute in regard to Ill the said proposition of law.

43. Consistent view of the courts oflndia in this behalf, however, appears to be that an enquiry conducted pursuant to the order of the Central Government is only to find out whether there was a prima facie case against the fugitive criminal for extradition to the treaty country. Mode and manner of enquiry has nothing to do with the rule in regard to standard c of proof. [See Charles Gurmukh Shobhraj v. Union of India and Ors., (1986) RLR 7 : (1986) 29 DL T 410 and Nina Pillai v. Union of India, (1997) Cr!. L.J. 2359 paragraphs 9 and 11 ].

44. Counsel for both the parties have relied upon the decision of this Court inRosiline George v. Union of India and Ors., (1994] 2 SCC D 80. This Court therein noticed a commitment of this country to honour the international obligations arising out of the 1931 treaty. For the said f .. purpose even the international statute like the Fugitive Offenders Act, 1881 was held not to be applicable. Municipal law of the land undoubtedly would apply. Section 10 of the Act provides that the documents are liable to be treated and received as evidence. What is, therefore, necessary for the purpose thereof is to supply the copies of the documents to the fugitive criminal. In Rosiline George this Court held :-: ..:- _,,- "41. It is obvious from the plain language of Section 5 of the "Act that the Central Government can direct any Magistrate to hold inquiry provided the said Magistrate would have had jurisdiction to inquire into the offence if it had been an offence committed within the local limits of his jurisdiction. It is not disputed that the offence alleged to have been committed by George in the letter of request by the State of America would, if committed in the local limits of the Magistrate, have given the Magistrate jurisdiction to inquire into the same. The Act, being a special provisions dealing with the extradition of fugitive criminals, shall exclude from application the 347 general provisions of the Code of Criminal Procedure, 1973. In A any case, Section 5 of the said Code gives overriding effect to the special jurisdiction created under any special or local laws. Sections 177, 188 and 190 of the Code have no application to the proceedings under the Act. We see no force in the contention of the learned Counsel and reject the same." Statute 846 issue j'

45. Mr. Vishwanathan complained that copy of Statute 846 was not supplied. The effect of the said statute was stated as under:- c "In order to convict a person of conspiracy in violation of2 l USC 846, the government must prove the following to the satisfaction of the jury beyond a reasonable doubt : First, that two or more persons made an agreement to commit the crime which is stated to have been the object of the conspiracy, and second, that the D ~ .. defendant somehow knew the purpose of the agreement and joined in it with the intent to further the illegal purpose. The government need not prove that the alleged conspirators entered into any formal agreement, nor that they directly stated between themselves all the details of the scheme. Similarly, the government E need not prove that all the details of the scheme were agreed upon or carried out, nor must it prove that all of the persons alleged to have been conspirators were such, or that the alleged conspirators actually succeeded in accomplishing their unlawful objectives." '; ,__ In regard thereto, no grievance was made in the High Court.

No F ground has also been taken in this behalf in the special leave petition. No prejudice is shown to have been caused. It might have been better if the statute itself has been reproduced but then it has clearly been stated what was required to be proved and what was not required to be proved. We must bear in mind that the High Court was dealing with a writ petition filed by the appellant herein under Article 226 of the Constitution oflndia ·-;.– and not an appeal from the order of the learned Magistrate. The superior courts while entertaining a writ petition exercises a limited jurisdiction of judicial review, inter alia, when constitutional/ H [2007] 13 (Addi.) S.C.R. A statutory protection is denied to a person. But when it is required to issue a writ of certiorari, the order under challenge should not undergo scrutiny of an appellate court. Jurisdiction of the superior court in this behalf being limited inter alia to the question of jurisdiction, it was obligatory on the part of the petitioner to show that a jurisdictional error has been B committed by the court while exercising the statutory powers.

Contention in regard to prejudice in such a situation is required to be considered. A person infonned in law and having taken all possible objections evidently knew that non disclosure of the Statute 846 in verbatim did not prejudice him. Had he been prejudiced he would have taken the said point at the c outset. He did not do so. We are, therefore, of the opinion that it is not possible for us to allow the appellant to raise such a contention for the first time before us. Information viz-a-viz Evidence

46. The provisions of a statute, it is trite law, must be harmoniously construed. When a statute is required to be read with an International -t Treaty, consideration of the provisions contained in the latter is also imperative. On a conjoint reading of Section 7 and Section 10 of the Act read with paragraphs 2 and 3 of Article 9 of the Treaty, we are of the E opinion that the word "information" occurring in Section 7 could not mean an evidence which has been brought it on record upon strict application of the provisions of the Evidence Act. The term "information" contained therein has a positive meaning. It may in a sense be wider than the words "documents and the evidence", but when a document is not required to ·\. ""'. F be strictly proved upon applying the provisions of the Indian Evidence Act or when an evidence is not required to be adduced strictly in tenns thereof, the use of the word "information" in Section 10 of the Extradition Act as also Articles 9(2) and 9(3) of the Treaty becomes relevant. Documentary evidence, no doubt form part of a judicial record; but then G even in a court governed by Criminal Procedure Code 1973 documents are to be supplied only when the cogni7.ance of the offence is taken. At this stage, therefore, the requirement of sub-section (5) of Section 173 of the Code of Criminal Procedure was not necessary. Section 10 of the Extradition Act speaks of certification of facts. 349 Such certification is found in the affidavit of Mr. Gilpin. How such certificate A of fact is to be furnished does not appear from the provisions of the said Act and the affidavit may serve the said purpose. It is not, therefore, possible to hold that the report of the learned Magistrate is vitiated on the premise that he has failed to apply a mandatory provision thereof. Jurisdictional Issue J._

47. Section 208 of the Old Code of Criminal Procedure is not required to be applied in its entirety. The said provision were required to be applied as far as practicable. The provisions of the Act confer power and jurisdiction upon the Magistrate as the case is not brought before it c by the prosecutor or the complainant, but an enquiry is entrusted to the designated court by the Centrar Government. A power was, therefore, required to be conferred under a statute to the Magistrate, so that, it may have the requisite power and jurisdiction to make an enquiry. Its function ..)_ are quasi judicial in nature; its report being not a definitive order. Further D section does not stop at that. It refers to the committal proceeding only for the manner in which the same is to be conducted. While a court would commit an accused in terms of Section 208, it was required to arrive at a finding for the said purpose. It postulates that a finding has to be arrived at only for the purpose of discharge of an accused or his extradition upon E formation of a prima facie view. The legal principle in this behalf has clearly been laid down in sub-sections (2), (3) and (4) of Section 7 of the Extradition Act. The said sub-sections cannot be ignored. Unlike r 'i.~ Section 208 of the Code, no witnesses need be examined and cross- examined. If the State has been able to prima facie establish that a case F has been made out for bringing an accused to trial, it will be for the accused to show that no such case is made out of the offences complained or for extradition.

48. In a case of this nature the second part of Section l 0 of the G Act would apply which does not contemplate production of any oral evidence by the Central Government. No fact needs to be proved by evidence. What is necessary is to arrive at a prima facie case finding that a case has been made out for extradition from the depositions, statements, copies and other informations which are to be gathered from H [2007] 13 (Addi.) S.C.R. A the official certification of facts and judicial documents that would include the indictment by the Grand Jury.

49. Section 10 of the Act provides as to what would be received in evidence. The marginal note although may not be relevant for rendition B of decisions in all types of cases but where the main provision is sought to be interpreted differently, reference to marginal note would be permissible in law. [See Deewan Singh and Ors. v. Rajendra Pd Ardevi and Ors., (2007) 1 SCALE 32]

50. The use of the terminology 'evidence' in Section 7 of the Act C must be read in the context of St:ction 10 and not d'hors the same. It is trite that construction of a statute should be done in a manner which would give effect to all its provisions. In Reserve Bank of India v. Peerless General Finance and D Investment Co. Ltd., [1987] 1 SCC 424 this Court stated: " .. .If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act…." [See also Chairman, Indore Vikas Pradhikaran v. Pure Industrial Cock and Chem.

Ltd. and Ors., AIR (2007) SC 2458] Section 7 of the Act should not be read, thus, in isolation and the literal interpretation, as was sought to be resorted to by Mr. Viswanathan, would render the statute unworkable. See Mis. Girnar Traders (supra) The Act is a special statute. It shall, therefore, prevail over the provisions of a general statute like the Code of Criminal Procedure. All the evidences envisaged under Section 10 of the Act have been produced before the learned Magistrate. The statute speaks of information 351 '1'- 'r specified therein to be the evidence for the purpose of the provisions of A the said Act. The term "information" although is of wide import, must be read in the context of which it has been used .. Information may include statement which falls short of confession as well as statement which amounts to B confession. [See R. v. Babula! ILR 6 All 509 at 537) _I, In Commissioner of Income Tax v. A. Raman and Co., AIR (1968) SC 49, the expression 'information' has been held to mean instruction or knowledge derived from an external concerning facts or particulars, or as to law relating to a matter bearing on the assessment. c We may also notice that in Hirachand Kothari v. State of Rajasthan, AIR (1985) SC 998, this Court held that a statement by the referee as to the truth or otherwise regarding a question in a dispute, when the court needs information on such question, is information. ~ ·~

51. Section 10 of the Act clearly provides that any exhibit or deposition which may be received in evidence need not be taken in the presence of the person against whom they are used or otherwise. It also contemplates the copies of such exhibits and depositions and official certificates of facts and judicial documents stating facts would, if duly E authenticated, be received as evidence.

52. We, therefore, are of the opinion that an infonnation need not be a documentary evidence or an oral evidence as is understood under ~-,. the Indian Evidence Act.

53. For the reasons aforementioned, we are of the opinion that no case has been made out for interference with the impugned judgment. The appeal is dismissed. D.G. Appeal dismissed. -t