‘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
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.
IN A SPOT: VIJAY MALLYA