AMIT MOHAN SINGH Vs. UOI

JUDGEMENT

(1.) By this petition, the Petitioner seeks bail pending the enquiry before the Learned Metropolitan Magistrate under the Extradition Act (in short 'the Act') in regard to LOC No. 2011104148 pursuant to Red Corner Notice No. A1251/2-2011.

(2.) Learned counsel for the Petitioner contends that the Petitioner is a citizen of United States of America (USA) and his entire family is settled in USA. The Petitioner has been falsely implicated by a girl with whom he was familiar and both of them wanted to marry. The arrest of the Petitioner on 6 th July, 2011 is in violation of the Article 21 of the Constitution of India since the Petitioner has been arrested under a Red Corner Notice and as held by the Hon'ble Supreme Court in Bhavesh Jayanti Lakhani Vs. State of Maharashtra & Ors., 2009 9 SCC 551a Red Corner Notice is not a warrant of provisional arrest. Thus, in the absence of any provisional arrest, Petitioner's custody was illegal. Further the so-called warrant of provisional arrest was neither issued by a judicial authority nor endorsed by the Central Government. It is contended that till date neither the warrant for provisional arrest has been endorsed by the Central Government nor the extradition Magistrate has issued warrant of arrest. In his application, the Petitioner stated that he was provisionally arrested in view of the facts informed by the Respondents. The Petitioner was kept in dark and no grounds of arrest were informed to him. The Petitioner was arrested on 6 th July, 2011 and in terms of Section 34-B(2) of the Extradition Act, the Petitioner could have been kept in custody only for 60 days. He was kept in custody beyond the said period as the documents for extradition from USA were received only on 15 th September, 2011. The reply of the Union Government that the documents were received on 19 th August, 2011 on the face of it is incorrect. Since there is no provisional warrant of arrest till date, the Petitioner be released on bail. On merits it is contended that the complainant and the Petitioner were on friendly terms. There is no likelihood of the Petitioner absconding and thus bail be granted to him.

(3.) Learned Additional Solicitor General for the Union of India on the other hand contends that the Petitioner himself in his application for bail admits that he was provisionally arrested on 6 th July, 2011 under the provisions of Section 34(B) of the Act. A Red Corner Notice was received on 23 rd February, 2011 which also contained the warrants for provisional arrest. Hence the decision in Bhavesh Jayanti Lakhani is not applicable to the facts of the present case. When the Petitioner was produced before the Learned Metropolitan Magistrate pursuant to his arrest under Section 41(1)(g) Cr.P.C., Kalandra was filed, which contained the documents relating to the look-out circular which had the Red Corner Notice along with the warrant of provisional arrest. Hence, the contention of the learned counsel for the Petitioner that till date warrant of arrest has not been issued is incorrect. The letter of Sh.D.K. Ghosh, Deputy Passport OfficerExtradition, Under Secretary dated 18 th July, 2011 addressed to the Assistant Director, CBI- INTERPOL requesting for provisional arrest is only as a matter of abundant caution and does not mean that there was no warrant for provisional arrest. The Learned Magistrate in terms of Section 34-B(2) of the Act immediately informed the Central Government about the arrest of the Petitioner which was duly communicated to the National Central Bureau (NCB) Washington. The Ministry of External Affairs responded through its letter dated 18 th July, 2011 forwarding a copy of Note Verbale No. 2011- 689/CONS dated 11 th July, 2011 requesting for provisional arrest of the Petitioner for the purpose of extradition as their exists an extradition treaty between the two countries.