SARABJIT RICK SINGH v. UNION OF INDIA

Citation: [2007] 13 S.C.R. 321

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

SARABJIT RICK SINGH v. UNION OF INDIA.pdf

Judgment text

i SARABilT RICK SINGH v. UNION OF INDIA DECEMBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] Extradition Act, 1962: ss. 7 and 10-Request by Government ofU. S. A. for extradition of appellant on ground ofhis involvement in drug trafficking and money laundering-Pursuant thereto Magistrate entrusted to make enquiry under the Act-Extradition order by Magistrate-Challenge to, on the ground that documents relied upon by }. fagistrate, without corroboration thereof!... materialparticulars-Held: No case made out for interference with extradi! ;on order-Magistrate is only requiredto arrive at prima facicfinding, eitl;er in favour offugitive criminal or in support ofthe requesting State on basis ofdocuments supplied in terms of s. l 0-He is not to hold the trial-Use of terminology ·evidence 'ins. 7 to be read in context ofs. l 0-Thus, s. 3 ofEvidence Act which defines "evidence" in.

strict sense not applicable in proceeding under the Act-The Act is special statute-Therefore, it l1'0llld'prevail over provisions ofgeneral statute like the Code of Criminal Procedure-Inda U. S. Treaty-Article 9, Paragraphs 2 and 3-Evidence Act-s. 3-Code ofCriminal Procedure, 1973-ss. 173(5), 227-Code ofCriminal Procedure, 1898-ss. 208, 209. ss. 7and 10-Evidence-Appreciation of,for trial ofaccusedvisa-vis to make report upon holding enquiry in terms ofprovisions of the Act-Distinction between-Criminal trial-Enquiry. Writ: Writ ofcertiorari-Jurisdiction ofsuperior courts-Scope of Appeal: Appeal before Supreme Court- Freshplea-Plea astoprejudice taken. forfirst time before Supreme Court-Held: Not tenable. Inte1pretation ofstatutes: Harmonious construction-Held: When statute is requiredto be readwith International Treaty, considerationofprovisions contained in the latter is also imperative-Extradition Act, 1962- lndo US. Treaty- Article 9, Paragraphs 2 and 3.

Doctrines/Principles: Incorporation byreference-Applicabilityof Words andphrases: 'information '- Meaning of- In the context ofs. 7ofExtradition Act. 1962. The Government ofU. S. A. madea formal requeston 7thJanuary, 2002 for extradition ofthe appellant, an Indian citizen and resident of U. S. Aon theground thathewaswanted to stand trial inf. heU. S. District Court for drug trafficking and money laundering. Pursuant to this request, he was arrested on 10th November,2002. The Goveminent of India in exercise of its power conferred upon it under s.

5 of the Extradition Act, 1962 made a re - or office;ofthe State where the same was issued or acting in or ofsuch State ; (b) the depositions ofstatements or copies thereofpurport to be certified under the hand of a Judge, Magistrate or officer of the State where the same were taken or acting in or for such State, to be original depositions or statements or to be true copies thereof, as the case may require ; (c) the certificate of, orjudicial document stating the fact of, a conviction purports to be certified by a Judge, Magistrate or officer ofthe State where the conviction took place or acting in or for such State ; (d) the warrants, depositions, statements, copies, certificates and judicial documents, as the case may be, are authenticated by the oath ofsome witness or by the official seal ofa Minister ofthe State where the same were issued, taken or given. " x-..... ' . ,.. --- Documents -- 23.

The Government ofthe United States ofAmerica made a formal request on or about 7th January, 2003 for extradition ofthe appellant stating that he was wanted to stand trial in the U. S. District Court for the Southern District ofTexas, Housing Division for drug trafficking and money laundering. -1-- . 24. It contained a certificate ofauthentication by the First Secretary (Consular), Embassy oflndia, Washington DC in terms ofthe Treaty. It also contained a certificate from the Secretary ofState certifying that the documents annexed thereto were under the authority ofthe Department "- ofJustice ofthe United States ofAmerica and that such seal is entitled to full faith and credit. It also contained a certificate ofthe Attorney General for the United States ofAmerica stating that Ernestine B.

Gilpin, whose name was signed to the accompanying paper, was at the relevant time was an Associate Director in the Office of the International Affairs, Criminal Division, Department ofJustice, United States ofAmerica. The certificate issued by ofMr. Gilpin reads as under:- ;.. - -- "CERTIFICATE I, Ernestine B. Gilpin, Associate Director, Office ofInternational Affairs, United States Department of Justice, United States of America, do hereby certify that the attached affidavit, with attachments, by Marietta I. Geckos, Senior Trial Attorney, Narcotic and Dangerous Drug Section, Criminal Division, United ' . States Department ofJustice, United States ofAmerica, is authentic and was duly executed pursuant to United State laws. These _, documents were prepared in connection with the request for the extradition ofSarabjeet "Rick" Singh from India. True copies ofthese documents are maintained in the official files ofthe United-StatesDepartment ofJustice in Washington, D. C. 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 - (a) consprracy (b) possession of drugs ; (c) drug trafficking; (d) money laundering; and (e) use oftelecommunication facilities for drug trafficking. Report ofthe Learned Magistrate 27. Admittedly the learned Magistrate did not find any primafacie case in regard to Count Nos. 9, 16, 17, 19, 20, 22 and 23. Allegations against the Appellant 28. Docwnents received from the Government ofUnited States of America show that the substance recovered was described as MDMA or ecstasy was 3,4-Methylendeioxymethamphetamine.

The chemical composition ofthe 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 substance under the Narcotic Drngs and Psychotropic Substances Act, 1985, possession whereofby itselfcontributes an offence. The quantity ofthe drug recovered answers the description ofcommercial quantity. In India, an accused found guilty ofthe commission ofthe said offence, may be punished with rigorous imprisonment for aminimwn period of 10 years 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) ofthe Treaty says that the request for extradition should be supported by such infom1ation as would justify the committal for trial ofthe person ifthe offense had been committed in the Requested State.

Section 7 ofthe Extradition Act prescribes that the Magistrate shall inquire into the case in the same manner and shall have the same jurisdiction and powers, as nearly as may be, as ifthe same were one "'t- I triable by a Court ofSessions or High Court. 31. Difference between incorporation by reference and 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. Vasantrao and Ors. , and Jaswantibai and Ors. , [2002] 7 SCC 657. -. )( Incorporation by reference provides for a legislative device where the legislature instead ofrepeating the provisions ofthe statute incorporates it in another statute. 32. We may, however, notice that in Mis. Girnar Traders v. State ofMaharashtra 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 ofthe Act would apply in the instant case. We may, however, hasten to add that the said Act being a selfcontained Code, • the provisions thereofmust be applied on their own terms. Application ofthe Statutory provisions 33. Sections 208 and 209 ofthe Code ofCriminal Procedure, 1898 contemplate taking ofsuch evidence as may be produced in support of the prosecution or on behalfofthe accused that may be called for by the Magistrate. Compliance ofthe principle ofnatural justice or the extent thereofand 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, investigation and trial. Authority ofthe 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 ofthe fugitive criminal or his commitment to prison or make report to the Central Government forwarding therewith a written statement which the fugitive criminal may desire to submit for consideration ofthe Central Government. Sub-section (2) ofSection 7envisages taking ofsuch evidence as may be produced in support ofthe requisition ofthe foreign . State as also on behalfofthe fugitive criminal. It is open to the fugitive criminal to show that the offence alleged to have been committed by him - 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 ofthe Act confer power and jurisdiction upon the Magistrate as the case is not brought before it by the prosecutor or the complainant, but an enquiry is entrusted to the designated court by the CentrarGovernment.

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 - .. )_ 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 acourt would commit an accused in terms ofSection 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 ofdischarge ofan accused or his extradition upon formation of aprimafacie view. The legal principle in this behalfhas 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 crossexamined.

Ifthe State has been able to primafacie establish that a case 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 ofthe offences complained or for extradition. 48. In a case of this nature the second part of Section l0 of the 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 aprimafacie 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 the official certification offacts and judicial documents that would include the indictment by the Grand Jury. 49. Section 10 ofthe Act provides as to what would be received in evidence.

The marginal note although may not be relevant for rendition ofdecisions 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 ofthe terminology 'evidence' in Section 7 of the Act must be read in the context of St:ction 10 and not d'hors the same. It is trite that construction ofa 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 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 ofthe entire Act.... " [See also Chairman, Indore Vikas Pradhikaran v. Pure Industrial Cock and Chem. Ltd. and Ors. , AIR (2007) SC 2458] Section 7 ofthe 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 ofa general statute like the Code of Criminal Procedure. All the evidences envisaged under Section 10 ofthe Act have been produced before the learned Magistrate. The statute speaks ofinformation specified therein to be the evidence for the purpose ofthe provisions of '1'- 'r the said Act.

The term "information" although is ofwide import, must be read in the context ofwhich it has been used.. Information may include statement ,' which falls short of confession as well as statement which amounts to 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. 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 ofthe 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, ifduly authenticated, be received as evidence. 52. We, therefore, are ofthe 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 ofthe opinion that no case has been made out for interference with the impugnedjudgment. The appeal is dismissed. D. G. Appeal dismissed. -t