Fugitive diamond merchant, Nirav Modi, faced another setback as a UK judge on ruled in the government of Indias favour by allowing the admissibility of its evidence against Modi. The development improves chances of Modi’s extradition to India.
Tuesday’s hearing was an additional hearing scheduled to rule on the admissibility of evidence presented before the Westminster Magistrates Court. Modi was remanded in custody till December 1. Both sides will make their closing submissions on January 7 and 8 and the judgement is expected a few weeks after that in 2021.
Modi’s lawyer, Clare Montgomery QC, countered India’s arguments at the hearing by comparing the case with ex Indian Navy officer but now an arms dealer, Ravi Shankaran, who is in the UK and is yet to be extradited.
Arguing the overturning of Shankaran’s extradition based on government of India’s evidence not meeting the UK extradition criteria, Montgomery told the court that statements under section 161 of Code of Criminal Procedure in India (statements of witnesses recorded and signed by the police) were not admissible in extradition cases.
Despite Montgomery’s strong opposition, district judge Samuel Mark Goozee decided to rule according to the judgement in case of Vijay Mallya, which said that statements under section 161 were valid in the court of law.
Referring to a report by the Law Commission of India, which claimed they “should never have any evidential value”, Montgomery said, ”The concern in India is these statements are not being taken from witnesses, and are rather the product of corrupt or incompetent conduct by police.”
“There were many complaints that dishonest police officers can write anything they like in them and the statements are often inaccurate. Section 161 statements are not directly made by witnesses or directly confirmed by them to be true – it is simply a self-fulfilling assertion of (an) officer,” Montgomery added.
Helen Malcom QC, representing the Crown Prosecution Service (CPS), on behalf of the federal government of India, said the argument on Shankaran was “nonsense” and “a misguided point” and told Judge Goozee he was “bound by Mallya on (section) 161”.
“Section 161 is the way the CBI takes witness statements in India. This would change the entire nature of evidence from India for extraditions,” Malcom added.
The charges against the fugitive merchant centre around his firms Diamonds R Us, Stellar Diamonds and Solar Exports making fraudulent use of a credit facility offered by the Punjab National Bank (PNB), known as “letters of undertaking” (LoUs).
The Crown Prosecution Service (CPS), arguing on behalf of the Indian authorities, sought to establish that a number of PNB staff conspired with Modi to ensure LoUs. The letters of undertaking (LoUs) were issued to his companies without required credit checks, without recording the issuance of the LoUs and without charging the required commission upon the transactions. This resulted in a fraud amounting to nearly $2 billion (Rs 13,500 crore).