In a comprehensive extradition win for the Indian authorities, a UK judge ruled on Thursday that fugitive diamantaire Nirav Modi not only has a case to answer in the Indian courts but that there is no evidence to suggest he would not receive a fair trial in India.
Nirav Modi, wanted in India on charges of fraud and money laundering in the estimated USD 2-billion Punjab National Bank (PNB) scam case, lost his legal battle against extradition on all grounds as District Judge Samuel Goozee also concluded that there are no human rights concerns that his medical needs would not be addressed as per several Indian government assurances.
The 49-year-old appeared via video link at Westminster Magistrates’ Court from Wandsworth Prison in south-west London, dressed in a formal suit and sporting a thick beard, and showed no emotion as excerpts of the judgment were read out in court.
“I am satisfied that there is evidence upon which NDM [Nirav Deepak Modi] could be convicted in relation [to] the conspiracy to defraud the PNB. A prima facie case is established,” the judge noted.
He similarly concludes a prima facie case to have been established on all counts of charges brought by the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) – money laundering, intimidation of witnesses and disappearance of evidence.
“I am not required to exclude all Mr Modi’s various alternative theoretical possibilities and narratives; nor exclude his personal interpretation of the evidence, in order to find a prima facie case has been established,” the judge noted, referring to the extradition case of former Kingfisher Airlines boss Vijay Mallya as precedent.
He accepted that while Nirav’s mental health had deteriorated due to the lengthy incarceration in a London prison, exacerbated by the COVID-19 pandemic, his risk of suicide does not meet the high threshold to satisfy him that his mental state is such that it would be “unjust or oppressive” to extradite him.
Under the UK Extradition Act 2003, the judge will now send his findings to the Secretary of State for Home Affairs, Priti Patel. It is the UK Cabinet minister who is authorised to order an extradition under the India-UK Extradition Treaty and has two months within which to make that decision.
The Home Secretary”s order rarely goes against the court’s conclusions, as she has to consider only some very narrow bars to extradition which are unlikely to apply in this case, including the possible imposition of a death penalty.
Whatever the ministerial decision, the losing side – Nirav Modi – has up to 14 days within which to approach the High Court and seek leave to appeal after the Home Secretary has made her decision known.
In New Delhi, responding to a query during an online media briefing, Ministry of External Affairs spokesperson Anurag Srivastava said that since the UK court has recommended to the UK Home Secretary for Nirav Modi”s extradition, “the Government of India would liaise with the UK authorities for his early extradition to India.”
Nirav’s legal team did not immediately confirm if he intends to appeal against Thursday’s ruling. Any appeal, if granted, will be heard at the Administrative Division of the High Court in London.
Nirav Modi, meanwhile, remains on remand at Wandsworth Prison until the Home Secretary’s decision to sign off on the extradition order.
The flashy diamond merchant was arrested on an extradition warrant on March 19, 2019, and has appeared via videolink from Wandsworth Prison for a series of court hearings in the extradition case. His multiple attempts at seeking bail have been repeatedly turned down, both at the Magistrates’ and High Court level, as he was deemed a flight risk.
Nirav is the subject of two sets of criminal proceedings, with the CBI case relating to a large-scale fraud upon PNB through the fraudulent obtaining of letters of undertaking (LoUs) or loan agreements, and the ED case relating to the laundering of the proceeds of that fraud.
He also faces two additional charges of “causing the disappearance of evidence” and intimidating witnesses or “criminal intimidation to cause death”, which were added on to the CBI case.
In the judgment clearing the path to extradition, the judge accepted the arguments put forth by the Crown Prosecution Service (CPS) – arguing in court on behalf of the Indian government – that Nirav in collusion with bank officials oversaw a “ponzi-like scheme” structure where LoUs were used to repay earlier ones.
“I do not accept the submissions that NDM was involved in legitimate business and using the LoUs in a permissible fashion… I find there is no evidence of genuine import transactions and the applications for the LoUs was being done dishonestly,” the ruling notes.
“Considering the entirety of the evidence, the dummy directors’ evidence in their statements supports the ponzi-like scheme and the operation of the fraud set out in the statements from the PNB officials,” it adds.
The judge also noted that given the high public and media interest in the case, he did not believe there was any reason for him to doubt the Indian government”s assurances.
“I am also required to consider the length and strength of relations between India and this country… There is no reliable evidence of the GOI breaching their solemn diplomatic assurance,” the judge noted.
The UK judge declared that there was no evidence which allowed him to find that if extradited the jeweller would be at “real risk of suffering a flagrant denial of justice” as pleaded by his lawyers.
He accepted that the accused being a high-profile businessman who made a huge success of the Nirav Modi brand in India and worldwide was the target of “sensationalised” media reporting, but pointed out that such reporting is not unfamiliar to the courts even in the UK.
“India is governed by its written constitution which has at its core the fundamental principle of the independence of the judiciary by virtue of the separation of powers between judiciary, the executive and the legislature.
“There is no cogent or reliable evidence that the judiciary in India are no longer independent, or capable of managing a fair trial even where it is a high-profile fraud with significant media interest,” the judge concluded.
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