‘CBI and ED Will Have to Of­fer Bet­ter Ev­i­dence to Sup­port Mallya’s Ex­tra­di­tion’

Indian agen­cies need to es­tab­lish ‘crim­i­nal­ity of in­tent’, say top lawyers

The Economic Times - - Companies: Pursuit Of Profit - Kala.Vi­jayragha­van @times­group.com

Mum­bai: The fate of for­mer liquor baron Vi­jay Mallya's ex­tra­di­tion in the UK court is pred­i­cated on how Indian agen­cies Cen­tral Bureau of In­ves­ti­ga­tion (CBI) and En­force­ment Di­rec­torate (ED) es­tab­lish prima fa­cie crim­i­nal­ity of in­tent, top lawyers close to the de­vel­op­ment said.

“If the judge comes to the con­clu­sion that there were gaps in the ev­i­dence to sup­port an al­le­ga­tion of crime and right now there are gaps in the ev­i­dence, the lawyers ar­gu­ing for the Indian gov­ern­ment will have to of­fer bet­ter ev­i­dence,” a top lawyer close to the de­vel­op­ment said, seek­ing anonymity. The West­min­ster Mag­is­trates' Court judge Emma Ar­buth­not said “there is an aw­ful lot to go over…most im­por­tant the prima fa­cie case.” The CBI and ED have sought ex­tra­di­tion of Mallya on grounds that he laun­dered money taken as loans from state banks and fled to UK as part of a “crim­i­nal con­spir­acy” and there was “no in­ten­tion” to re­pay the loans. Mallya has stated that his in­abil­ity to re­pay loans was be­cause of “a gen­uine busi­ness fail­ure”.

Says Sarosh Zai­walla, founder & se­nior part­ner, Zai­walla & Co, "Also, ir­re­spec­tive of the bi­lat­eral agree­ment be­tween UK and In­dia, the case might be in favour of the de­fen­dant due to Bri­tain’s strong hu­man rights laws. Since hu­man rights is a ma­jor pre-req­ui­site, the UK ac­cord­ingly clas­si­fies pref­er­en­tial coun­tries, with the US and Euro­pean coun­tries in Cat­e­gory 1, over In­dia which is placed un­der Cat­e­gory 2 – for which the process is ar­du­ous and long. The numbers of fugi­tives liv­ing in the UK that are wanted in In­dia are cur­rently over 60." The UK judge has fixed De­cem­ber 10 as the date to de­liver its ver­dict on the fraud and money-laun­der­ing of around ₹ 9,000 crore. Crim­i­nal lawyer Ma­jeed Me­mon said the coun­sel for Mallya has ar­gued that the charges against him are a civil felony and not a crim­i­nal.one. "It is now up to the UK court to de­cide on the ex­tra­di­tion, given the na­ture of of­fence," he said. UK-based lawyers say the Ar­ti­cle 3 of the Euro­pean Con­ven­tion on Hu­man Rights pro­hibits tor­ture, and “in­hu­man or de­grad­ing treat­ment or pun­ish­ment.”

The Section 87 of the UK Ex­tra­di­tion Act 2003 man­dated the court to turn down the plea for ex­tra­di­tion of any per­son, in case the court is not con­vinced that the ex­tra­di­tion risks his or her “con­ven­tion rights within the mean­ing of the Hu­man Rights Act 1998.”

The ex­tra­di­tion treaty fails to pro­vide a proper le­gal frame­work for the bal­anc­ing of the hu­man rights and the in­ter­est of the Indian fugi­tive in the UK. High-pro­file cases against fugi­tives sought by the Indian law are pend­ing in the UK. The list in­cludes Lalit Modi (fi­nan­cial); Ravi Shankaran (Indian Navy war room leak case); Tiger Hanif (1993 blasts in Gu­jarat); Nadeem Saifi (Gul­shan Kumar mur­der case); Ray­mond Var­ley (UK cit­i­zen, child abuse

CBI and ED have sought ex­tra­di­tion of Mallya on the grounds that he laun­dered money taken as loans from state banks

cases in Goa).

Based on the numbers as pro­vided to Sir Scott Baker’s panel, un­der Bri­tain’s var­i­ous bi­lat­eral treaties,130 ex­tra­di­tion re­quests were sub­mit­ted from the US to the UK. Of those, the UK re­fused 10. Of the re­main­ing 120, 77 in­di­vid­u­als were ex­tra­dited from the UK to the US. The other 43 cases are pend­ing in the UK sys­tem, or the in­di­vid­u­als re­turned to the US on their own.

"Dur­ing the same time pe­riod, the UK sub­mit­ted 54 ex­tra­di­tion re­quests to the US, of which none have been re­fused. Of those 54 re­quests, 38 re­sulted in ex­tra­di­tion of an in­di­vid­ual from the US to the UK. In the re­main­ing 16 cases, the in­di­vid­u­als sim­i­larly ei­ther re­turned to the UK vol­un­tar­ily or other cir­cum­stances made ex­tra­di­tion from the US to the UK no longer nec­es­sary," Zai­wala said.


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