NIRANJAN PATEL Vs. UOI

JUDGEMENT

(1.) By this petition, the Petitioner seeks quashing of the order and inquiry report dated 14 th May, 2011 passed by the learned Additional Chief Metropolitan Magistrate-01, Patiala House Courts, New Delhi under Section 5 of the Extradition Act, 1962 in CC. No.79/1/08 whereby the learned Additional Chief Metropolitan Magistrate recommended extradition of the Petitioner to the United States of America (USA).

(2.) Learned counsel for the Petitioner contends that the request for extradition made by the Government of USA was in breach of mandatory provisions of the Indo-US Extradition Treaty, (in short the Treaty?), especially Article 9(4)(a) of the said Treaty which provides that the request for extradition relating to a person, who has been convicted of an offence for which extradition is sought shall be supported by "a copy of the judgment of conviction or, if such copy is not available, a statement by a judicial authority that a person has been convicted". Since copy of conviction order has not been annexed with the extradition request, such a request becomes non-est in law and the Central Government and the learned Additional Chief Metropolitan Magistrate could not have acted on such a request. It is further contended that in the absence of a copy of the order of conviction, an adverse presumption is liable to be drawn against the Requesting State and the Union of India and a presumption in favour of the Petitioner that the judgment of conviction, if supplied, would establish the consistent case of the Petitioner that he was convicted for a political offence. Learned counsel contends that the learned Additional Chief Metropolitan Magistrate erred in concluding that the offences stated to have been committed by the Petitioner were covered under Sections 420/467/468/109/120B of the Indian Penal Code (IPC) as equivalent offences to the ones for which the Petitioner was convicted by the Courts in the USA. None of the facts or documents on record establishes the essential ingredients of offences either under Section 420 or 476 or 468 IPC and a fortiori, neither Section 109 nor Section 120-B of IPC would be applicable to the facts of the case. Lastly, the learned Additional Chief Metropolitan Magistrate has not considered other facts and circumstances pointed out by the Petitioner to oppose the request for his extradition.

(3.) Per contra learned counsel for the Respondent states that Article 2 of the Treaty states that an offence which is punishable by more than one year and is not a political offence is an extraditable offence. The Petitioner has been convicted and sentenced to undergo imprisonment for a period of 37 months for offences relating to visa frauds. The offences relating to visa frauds cannot fall in the category of political offences. Further the order on sentence passed by the US Courts is accompanied by a statement of conviction by the judicial authority, which was duly supplied to the Petitioner. Thus, the requirement of Article 9(4)(a) of the Indo US Extradition Treaty stands fulfilled. The Petitioner has been tried and convicted of the offences, which are not political in nature and the burden lies on the petitioner to prove that he has been extradited for political offence in case he wants to fall within the ambit of exception.