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CASE NO.: Appeal (crl.)  1705 of 2007

PETITIONER: Sarabjit Rick Singh

RESPONDENT: Union of India

DATE OF JUDGMENT: 12/12/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.       1705           OF 2007 [Arising out of SLP(Crl.) No. 178 of 2007]

S.B. SINHA, J

1.      Leave granted.         Introduction

2.      The scope and ambit of the provisions of  International Treaty  vis-a-vis the Extradition Act, 1962 is involved in the present appeal.         Background Facts

3.      Appellant herein is said to be an Indian citizen.  He allegedly  holds an Indian Passport.  He, however, indisputably is a resident of  United States of America.  Allegedly he had been running an event  management company and promoting clubs into organizing  entertainment, cultural events and shows in various parts of the United  States of America for a long time.   

4.      The Government of the United States of America made a formal  request to the Government of India for his extradition alleging that the  appellant had conspired in aiding and abetting the sale and supply of  MDMA, a controlled substance and other offensive substances.  He is  said to be one of the members of a criminal organization involved in  drug trafficking and money laundering.  His organization has been  found to be responsible for distributing millions of tablets of MDMA  and laundering millions of dollars in drug proceeds.  The organization  is said to have purchased large quantities of MDMA from various  sources in Netherlands and obtained them in USA through couriers and  exchanged them for cash to be distributed to the lower levels of the  organization, who in turn, would sell MDMA to buyers/consumers in  Houston.  5.      United States of America is a Treaty State.  An Extradition  Treaty was entered into between the Government of the Republic of  India and the Government of the United States of America on or about  21st July, 1999.           Proceedings 6.      A warrant of arrest is said to have been issued by the U.S.  District Court for the Southern District of Texas, Housing Division for  the arrest of the appellant.  Pursuant to the request made by the  Government of the United States of America, he was arrested on 10th  November, 2002.  The Government of India in exercise of its power  conferred upon it under Section 5 of the Extradition Act, 1962 (for  short, ’the Act’) made a request to the Additional Chief Metropolitan  Magistrate, New Delhi, to make an enquiry in respect of the alleged

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offences levelled against him.  He was produced before the said court.   The documents appended to the formal request for extradition  containing 154 pages were supplied to him.  He was granted an  opportunity to file written statement.   7.      On the premise that the said formal request did not satisfy the  requirements of Article 9 of the Extradition Treaty as well as Section 7  of the Act, he filed an application for supply of deficient documents and  requested supply of copies thereof to lead his defence.  He also filed an  application for adjourning the case for three weeks to engage a counsel.    According to him, he felt handicapped having not been supplied with  the statute of the US Sec 846.  Affidavit affirmed by one Merietta I.  Geckos and enclosed with the extradition request did not contain any  document in support of the statement made in the said affidavit in  which he had stated about the arrest of few alleged co-defendants, but  no arrest memo or transcribes of the alleged conversations with the  appellant which had led to their arrest had been annexed with the  affidavit.  His request to supply copies of the documents however, was  declined by the learned Magistrate by an order dated 1st April, 2003.   8.      Extradition enquiry was directed to proceed only on the  documents filed by the respondent in the trial court subject to all legal  consequences.  By reason of an order dated 4th February, 2004 the  learned Additional Chief Metropolitan Magistrate recommended the  extradition of the appellant to United States of America.  A writ petition  filed thereagainst by the appellant questioning the legality and validity  of the said order of the Additional Chief Metropolitan Magistrate has  been dismissed by a Division Bench of the Delhi High Court by reason  of the impugned judgment.            Contentions 9.      Mr. Viswanathan, learned counsel appearing on behalf of the  appellant, inter alia, would submit that having regard to the  fundamental right of the appellant as envisaged under Article 21 of the  Constitution of India, it was obligatory on the part of the learned  Magistrate as also of the High Court to pass an order of extradition on  the basis of the material which would constitute ’evidence’ and as some  of the documents upon which the reliance was placed by the respondent  did not satisfy the requirement of the said term within the meaning of  Section 7 of the Act, the impugned judgment must be held to be  perverse  and in any event suffers from procedural irregularities. 10.     The learned counsel would urge that the purported affidavits of  the accomplice, Michael Ryan ’O’ Mealey and Alan Lane Lackley, who  have presumably been granted pardon could not have been relied upon  by the learned Magistrate as ’evidence’ for forming the basis for  directing his extradition without corroboration thereof in material  particulars.  Summary of evidence disclosed by Mr. Keith Brown did  not satisfy the statutory requirement of Section 7 of the Act which  postulates an enquiry by the Magistrate into the case in the same  manner as if the case were one triable by a Court of Session or High  Court which would mean the provisions of the Code of Criminal  Procedure 1898 being incorporated by reference in Section 7 of the Act  would apply.   11.     The Code of Criminal Procedure 1973 repealing and replacing  the Code of Criminal Procedure 1898, Mr. Vishwanathan submitted,  cannot be said to have any application whatsoever under the new Code  as the Magistrate has no power to discharge and only remedy available  to an accused facing sessions trial is to file an application for discharge  under Section 227 of the Code of Criminal Procedure, 1973 before the  Trial judge.   In terms of Section 208 of the Code of Criminal Procedure, 1898  the prosecution had an obligation to produce all such evidence in  support of the prosecution.  The same when read into Section 10 of the  Extradition Act would lead to a conclusion that the records of the  criminal case in United States were to be placed before the Magistrate  so as to enable him to apply his mind thereupon so as to form an  opinion that there existed a prima facie case against the appellant for  passing an order of extradition.  It is one thing to say, Mr.

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Vishwanathan, would urge, that a document has to be taken in evidence  but it is another thing to say that the contents thereof are received in  evidence without any formal proof.  A document by reason of a  provision of a statute, it was submitted, can be taken into evidence but  so as to bring its contents within the meaning of the term "evidence" its  contents must be proved.  The failure to produce the document, it was  contended, had disabled the Magistrate from exercising his power under  Section 7 of the Extradition Act.  Article 9 of the Indo U.S. Treaty also  casts an obligation to examine the accused for the purpose of enabling  him to explain any circumstances appearing in the evidence against  him.  As despite requests, the documents, being 45 in number, which  had been asked for by the appellant but were not furnished, the  impugned order must be held to be bad in law.   12.     Mr. P.P. Malhotra, learned Additional Solicitor General,  appearing on behalf of the Union of India, on the other hand, submitted  that the Magistrate entrusted to make an enquiry for the purpose of  passing an order under Section 7 would be entitled to take into  consideration the documents which had been furnished by the  Government of the United States of America in terms of the bi-lateral  treaty.  It was pointed out that the appellant in terms of the provisions of  the said Act as also the bi-partite treaty, although was entitled to lead  evidence in support of his defence as contemplated under the said Act,  failed and/or neglected to do so and in that view of the matter the  Magistrate was justified in passing the order of extradition.  Learned  counsel would contend that it was for the Government of India to  satisfy itself to make a fugitive criminal available to the United States  of America by answering the indictment upon satisfying itself inter alia  on the basis of the report to be submitted by the learned Magistrate.   Mr. Malhotra would submit that while making an enquiry in terms of  the provisions of the said Act an accused is not put to trial and the  Magistrate is only required to form a prima facie view on the basis of  the documents supplied in terms of Section 10 of the Act. The Treaty 13.     The Treaty between the Government of Republic of India and the  Government of the United States of America was entered into on 21st  July, 1999. It was published in the official gazette on 14th September,  1999.  By reason of Article 1 thereof the Contracting States agreed to  extradite to each other, pursuant to the provisions of the Treaty, person  who, by the authorities in the Requesting State are formally accused of,  charged with or convicted of an extraditable offence, whether such  offence was committed before or after the entering into force of the  Treaty. 14.     Article 2 defines extraditable offenses to mean an offence  punishable under the laws in both Contracting States by deprivation of  liberty, including imprisonment, for a period of more than one year or  by a more severe penalty.  An offense shall also be an extraditable one  if it consists of an attempt or a conspiracy to commit, aiding or abetting,  counseling or procuring the commission of or being an accessory before  or after the fact to, any offense described in paragraph 1.   15.     Article 4 defines political offenses.  Clause (2) of Article 4 inter  alia provides that offences related to illegal drugs, shall not be treated to  be political offence.   16.     Article 9 provides for extradition procedures and required  documents of which we may immediately notice :- "Article 9 \026 Extradition Procedures and Required  Documents :- 1.      All requests for extradition shall be submitted  through the diplomatic channel. 2.      All requests for extradition shall be supported by : (a)     documents, statements, or other types of  information which describe the identity and  probable location of the persons sought ; (b)     information describing the facts of the  offense and the procedural history of the  case ;

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(c)     a statement of the provisions of the law  describing the essential elements of the  offense for which extradition is requested ; (d)     a statement of the provisions of the law  describing the punishment for the offense ;  and (e)     the documents, statements, or other types of  information specified in paragraph 3 or  paragraph 4 of this Article, as applicable.  3.      A request for extradition of a person who is sought  for prosecution shall also be supported by : (a)     a copy of the warrant or order of arrest,  issued by a judge or other competent  authority ;         (b)     a copy of the charging document, if any, and (c)     such information as would justify the  committal for trial of the person if the  offense had been committed in the  Requested State. 4.      A request for extradition relating to a person who  has been convicted of the offense for which  extradition is sought shall also be supported by :         (a)     a copy of the judgment of conviction or, if  such copy is not available, a statement by a  judicial authority that the person has been  convicted ; (b)     information establishing that the person  sought is the person to whom the conviction  refers ; (c)     a copy of the sentence imposed, if the  person sought has been sentenced, and a  statement establishing to what extent the  sentence has been carried out ; and  (d)     in the case of a person who has been  convicted in absentia, the documents  required in paragraph 3."

17.     Article 10 provides that the documents accompanying an  extradition request shall be received and admitted as evidence in  extradition proceedings if in the case of a request from the United  States, they are certified by the principal diplomatic or principal  counsular officer of the Republic of India resident in the United States  or they are certified or authenticated in any other manner accepted by  the laws in the Requested State.   18.     Article 17 provides that a person extradited under the Treaty may  not be detained, tried or punished in the Requesting State except for the  offenses enumerated therein. The Act 19.     The Act was enacted to consolidate and amend the law relating to  extradition of fugitive criminals and to provide for the matters  connected therewith or incidental thereto.          It is a special statute.   20.     "Extradition treaty" has been defined in Section 2(d) to mean a  treaty or agreement made by India with a foreign State relating to the  extradition of fugitive criminals, and includes any treaty or agreement  relating to the extradition of fugitive criminals made before the 15th day  of August, 1947, which extends to, and is binding on, India.  "Fugitive  criminal" has been defined in Section 2(f) to mean an individual who is  accused or convicted of an extradition offence committed within the  jurisdiction of a foreign State or a commonwealth country and is, or is  suspected to be, in some part of India.  Section 4 occurring in Chapter II  of the Act provides for requisition for surrendering of fugitive criminal  of a foreign State.  It also provides for the manner in which such  requisition is to be made.  When such a requisition is made in terms of  Section 5 of the Act, the Central Government may, if it thinks fit, issue

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an order to any Magistrate who would have had jurisdiction to inquire  into the offence, if it had been an offence committed within the local  limits of his jurisdiction, directing him to inquire into the case.  Section  6 empowers the Magistrate to issue a warrant for the arrest of the  fugitive criminal on receipt of the order of Central Government.   21.     Section 7 provides for the procedure required to be followed  when a requisition for extradition is made by Treaty-State which reads  as under :- "Section 7 - Procedure before Magistrate  

(1) When the fugitive criminal appears or is brought  before the Magistrate, 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 if the  case were one triable by a Court of Session or High  Court. (2) Without prejudice to the generality of the foregoing  provisions, the Magistrate shall, in particular, take such  evidence as may be produced in support of the requisition  of the foreign State and on behalf of the fugitive criminal,  including any evidence to show that the offence of which  the fugitive criminal accused or has been convicted is an  offence of political character or is not an extradition  offence. (3) If the Magistrate is of opinion that a prima facie case  is not made out in support of the requisition of the  foreign State, he shall discharge the fugitive criminal. (4) If the Magistrate is of opinion that a prima facie case  is made out in support of the requisition of the foreign  State, he may commit the fugitive criminal to prison to  await the orders of the Central Government and shall  report the result of his inquiry to the Central  Government, and shall forward together with such report,  and written statement which the fugitive criminal may  desire to submit for the consideration of the Central  Government."

22.     Section 10 deals with the receipt in evidence of exhibit,  depositions and other documents and authentication thereof in the  following terms :-  "Section 10 - Receipt in evidence of exhibit depositions  and other documents and authentication thereof  

(1) In any proceedings against a fugitive criminal of a  foreign State under this chapter, exhibits and depositions  (whether received or taken in the presence of the person  against whom they are used or not) and copies thereof  and official certificates of facts and judicial documents  stating facts may, if duly authenticated, be received as  evidence. (2) Warrants, depositions or statement on oath which  purport to have been issued or taken by any Court of  Justice outside India or copies thereof, certificates of, or  judicial documents stating the facts of conviction before  any such Court shall be deemed to be duly authenticated  if-- (a) the warrant purports to be signed by a Judge.  Magistrate or officer of the State where the same was  issued or acting in or of such State ;  (b) the depositions of statements or copies thereof  purport 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 ;

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(c) the certificate of, or judicial document stating the  fact of, a conviction purports to be certified by a  Judge, Magistrate or officer of the 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 of some witness or  by the official seal of a Minister of the State where the  same were issued, taken or given."

       Documents 23.     The Government of the United States of America made a formal  request on or about 7th January, 2003 for extradition of the appellant  stating that he was wanted to stand trial in the U.S. District Court for  the Southern District of Texas, Housing Division for drug trafficking  and money laundering.   24.     It contained a certificate of authentication by the First Secretary  (Consular), Embassy of India, Washington DC in terms of the Treaty.   It also contained a certificate from the Secretary of State certifying that  the documents annexed thereto were under the authority of the  Department of Justice of the United States of America and that such  seal is entitled to full faith and credit.  It also contained a certificate of  the Attorney General for the United States of America 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 of Justice,  United States of America.  The certificate issued by of Mr. Gilpin reads  as under :- "CERTIFICATE I, Ernestine B. Gilpin, Associate Director, Office  of International 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 of Justice, United States of America, is  authentic and was duly executed pursuant to United State  laws.   These documents were prepared in connection  with the request for the extradition of Sarabjeet "Rick"  Singh from India. True copies of these documents are maintained in  the official files of the United States Department of  Justice in Washington, D.C. "          25.     One Marietta I. Geckos has affirmed an affidavit stating about :-

i)      prosecutor’s background and experience ; ii)     procedural history ;  iii)    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 \026  a)      conspiracy b)      possession of drugs ; c)      drug trafficking ; d)      money laundering ; and    e)      use of telecommunication facilities for drug trafficking. Report of the Learned Magistrate 27.     Admittedly the learned Magistrate did not find any prima facie  case in regard to Count Nos. 9, 16, 17, 19, 20, 22 and 23.   Allegations against the Appellant  

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28.     Documents received from the Government of United States of  America show that the substance recovered and described as MDMA or  ecstasy was 3,4-Methylendeioxymethamphetamine.  The chemical  composition of the 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 Drugs and Psychotropic  Substances Act, 1985, possession whereof by itself contributes an  offence.  The quantity of the drug recovered answers the description of  commercial quantity.  In India, an accused found guilty of the  commission of the said offence, may be punished with rigorous  imprisonment for a minimum 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) of the Treaty says that the request for extradition  should be supported by such information as would justify the committal  for trial of the person if the offense had been committed in the  Requested State.  Section 7 of the 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 if the same  were one triable by a Court of Sessions or High Court.   31.     Difference between incorporation by reference and a mere  citation is now well known in view of the decisions of this Court in  Karnataka State Road Transport Corporation  vs.  B.A. Jayaram and  Ors. [1984 Supp. SCC  244] and Nagpur Improvement Trust  Vs.   Vasantrao and Ors. and Jaswantibai  and others  [(2002) 7 SCC 657].    Incorporation by reference provides for a legislative device where the  legislature instead of repeating the provisions of the statute incorporates  it in another statute.  32.     We may, however, notice that in M/s. Girnar Traders  vs. State of  Maharashtra and others  [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 of the Act would apply in the instant case.  We  may, however, hasten to add that the said Act being a self contained  Code, the provisions thereof must be applied on their own terms.           Application of the Statutory provisions 33.     Sections 208 and 209 of the Code of Civil Procedure, 1898  contemplate taking of such evidence as may be produced in support of  the prosecution or on behalf of the accused that may be called for by the  Magistrate.  Compliance of the principle of natural justice or the extent  thereof and 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 of the 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 of the fugitive criminal or his commitment to prison or make  a report to the Central Government forwarding therewith a written  statement which the fugitive criminal may desire to submit for  consideration of the Central Government.  Sub-section (2) of Section 7  envisages taking of such evidence as may be produced in support of the  requisition of the foreign State as also on behalf of the fugitive criminal.   It is open to the fugitive criminal to show that the offence alleged to  have been committed by him is of political character or the offence is  not an extraditable offence.  He may also show that no case of  extradition has been made out even otherwise.  The Magistrate,  therefore, in both the situations is required to arrive at a prima facie  finding either in favour of fugitive criminal or in support of the  requesting state.  [ See Sohan Lal Gupta (dead) through LRs. And  others  vs.  Asha Devi Gupta (Smt) and others : (2003)7 SCC 492 ].  34.     What would constitute "evidence" came up for consideration  before this Court in Ramnarayan  Mor and another  vs.  State of

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Maharashtra  [1964] 5 SCR 1064 to hold that the documents also  formed part of the evidence within the meaning of Section 207A (6) of  the Code of Criminal Procedure 1898.   35.     In a proceeding for extradition no witness is examined for  establishing an allegation made in the requisition of the foreign State.   The meaning of the word "evidence" has to be considered keeping in  view the tenor of the Act.  No formal trial is to be held.  Only a report is  required to be made.  The Act for the aforementioned purposes only  confers jurisdiction and powers on the Magistrate which he could have  exercised for the purpose of making an order of commitment.  Although  not very relevant, we may observe that in the Code of Criminal  Procedure, 1973, the powers of the committing Magistrate has greatly  been reduced.   He is now required to look into the entire case through a  very narrow hole.  Even the power of discharge in the Magistrate at that  stage has been taken away. 36.     Law in India recognizes affidavit evidence.  (See Order IXX of  the Code of Civil Procedure and Section 200 of the Code of Criminal  Procedure).  Evidence in a situation of this nature would, thus, in our  opinion mean, which may be used at the trial.  It may also include any  document which may lead to discovery of further evidence.  Section 3  of the Indian Evidence Act which defines "evidence" in an enquiry  stricto sensu may not, thus, be applicable in a proceeding under the Act.   37.     Section 10 of the Act provides that the exhibits and depositions  (whether received or taken in the presence of the person, against whom  they are used or not) as also the copies thereof and official certificates  of facts and judicial documents standing facts may, if duly  authenticated, be received as evidence.   Distinction must be borne in  mind between the evidence which would be looked into for its  appreciation or otherwise for a person guilty at the trial and the one  which is required to make a report upon holding an enquiry in terms of  the provisions of the Act.  Whereas in the trial, the court may look into  both oral and documentary evidence which would enable him to ask  question in respect of which the accused may offer explanation, such a  detailed procedure is not required to be adopted in an enquiry envisaged  under the said Act.   If evidence stricto sensu is required to be taken in  an enquiry forming the basis of a prima facie opinion of the Court, the  same would lead to a patent absurdity.  Whereas in a trial the court for  the purpose of appreciation of evidence may have to shift the burden  from stage to stage, such a procedure is not required to be adopted in an  enquiry.  Even under the Code of Criminal Procedure existence of  strong suspicion against the accused may be enough to take cognizance  of an offence which would not meet the standard to hold him guilty at  the trial.   38.     Reliance has been placed by Mr. Vishwanathan, learned counsel  for the appellant, on Land Acquisition Officer and Mandal Revenue  Officer  vs.  V. Narasaiah : (2001) 3 SCC 530  wherein interpreting  Section 51-A of the Land Acquisition Act this Court held that the  certified copy of a registered sale deed would be admissible in  evidence.  The said decision, we may notice, has been approved by the  Constitution Bench of this Court in Cement Corporation of India Ltd.   vs.  Purya and others: (2004) 8 SCC 270.  It may be true that a  document does not prove itself.  Its contents, unless admitted,  should  be proved in terms of the provisions of the Evidence Act,  unless the  contents of the documents are said to be admissible by reason of a  provision of a statute, as for example Section 90 of the Evidence Act.   But what misses the aforementioned submission/contention is that  whereas the contents of the document is to be proved for the purpose of  trial but not for the purpose of arriving at an opinion in regard to  existence of a prima facie case in an enquiry.  Strict formal proof of  evidence in an extradition proceeding is not the requirement of law.   While conducting an enquiry the Court may presume that the contents  of the documents would be proved and if proved, the same would be  admitted as evidence at the trial in favour of one party or the other.  We,  therefore, are unable to accept the submission of Mr. Vishwanathan that  even at this stage the affidavits by way of evidence of the accomplices

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Michael Ryan ’O’ Mealey and Alan Lane Blackley who had been  arrested and pleaded guilty and had been cooperating with DEA Agent  were required to be excluded from consideration by the learned  Magistrate without any corroboration.    39.     Our attention has been drawn to a decision of this Court in  Ramgopal Ganpatrai Ruia and another vs.  The State of Bombay:  [1958] SCR 618 wherein this Court upon noticing the decisions of the  Bombay High Court in Queen Empress v. Namdev Satvaji [(1887)  I.L.R. 11 Bom. 372 and of the Allahabad High Court in Lachman v.  Juala : [(1882) I.L.R. 5 All. 161] held that the Magistrate should  commit the accused for trial if he is satisfied that sufficient grounds for  doing so have been made out.  It is difficult to apply those crucial words  "sufficient grounds" in an extradition case.          Therein, this Court considering the evidence brought on records,  posed a question as to whether the same constituted a prima facie case,  or that the voluminous evidence adduced therein was so incredible that  no reasonable body of persons could rely upon it.   40.     Existence of prima facie case or bringing on record credible  evidence at the stage of commitment is again a requirement of a statute.   Section 7 speaks of manner, the jurisdiction and power of the  Magistrate.  It does not set the standard of proof.  What is necessary for  passing a judicial order may not stricto sensu be necessary for making a  report.    41.     Reliance has also been placed on Rajpal Singh and others  vs.  Jai  Singh and another : (1970) 2 SCC 206 wherein this Court opined : "Though the language of Section 209 differs from that in  Section 207A, it is well settled that under neither of them  has the Magistrate the jurisdiction to assess and evaluate  the evidence before him for the purpose of seeing  whether there is sufficient evidence for conviction. The  reason obviously is that if he were to do that he would be  trying the case himself instead of leaving it to be tried by  the Sessions Court, which alone has under the Code the  jurisdiction to try it. As stated earlier, both the parties led  evidence. Instead of finding out whether there was  sufficient evidence to make out a prima facie case, what  the Magistrate did was to evaluate the evidence by an  elaborate assessment of it and held, as if he was trying  the case, that between the two versions the evidence of  witnesses examined by the appellants was preferable to  that led by the complainant, that the defence evidence  was more probable and that there were inconsistencies  and improbabilities in the prosecution evidence, and  finally that that evidence was interested and liable,  therefore, to be discarded. There may perhaps be some  force in what the Magistrate has said about the evidence,  but it is clear that there was something which could be  said on both the sides. The Magistrate, therefore, ought to  have left the case for the Sessions Court to decide and  come to its conclusion which of the two rival versions  was acceptable on the facts and circumstances of the  case."  

       The said decision, thus, is an authority for the proposition that at  that stage the Magistrate was not required to evaluate the evidence so as  to arrive at a finding that the accused is or is not guilty.  Evaluation of  evidence or appreciation thereof, in our opinion, is not within the  domain of the Magistrate at that stage.   42.     Decision of the Queen’s Bench Division in  "Re Tomlin’s  application" disposed of on 18th November, 1994 has been relied upon  to say that the court was under an obligation to see that the evidence of  the witnesses be not unfairly admitted.  Queen’s Bench Division therein  excluded the hearsay evidence in regard to the contents of a document.   Contention in regard to unfair admission of the document, however,  was not pursued.   The said principle would apply in a case where there

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is no evidence to establish that the crime has been committed by the  defendants or where a judge comes to the conclusion that the  prosecution evidence taken at its face value would not lead to  conviction.  Approach of the English Courts is to lay test as in the case  of the submission of the defendant at the end of the prosecution  evidence i.e. end of trial, the defendant would not be called upon either  to explain the prosecution case or to enter into his defence.  There may  not be any dispute in regard to the said proposition of law.   43.     Consistent view of the courts of India in this behalf, however,  appears to be that an enquiry conducted pursuant to the order of the  Central Government is only to find out whether there was a prima facie  case against the fugitive criminal for extradition to the treaty country.   Mode and manner of enquiry has nothing to do with the rule in regard  to standard of proof.   (See Charles Gurmukh Shobhraj  vs. Union of  India and others : 1986 RLR 7 : 1986 (29) DLT 410 and Nina Pillai  vs.    Union of India :  1997 Crl. L.J. 2359 paragraphs 9 and 11). 44.     Counsel for both the parties have relied upon the decision of this  Court in Rosiline George  vs.  Union of India and others :  (1994) 2  SCC 80.  This Court therein noticed a commitment of this country to  honour the international obligations arising out of the 1931 treaty.  For  the said purpose even the international statute like the Fugitive  Offenders Act, 1881 was held not to be applicable.         Municipal law of the land undoubtedly would apply. Section 10  of the Act provides that the documents are liable to be treated and  received as evidence.  What is, therefore, necessary for the purpose  thereof is to supply the copies of the documents to the fugitive criminal.   In Rosiline George this Court held :-: "41.    It is obvious from the plain language of Section 5  of the "Act that the Central Government can direct any  Magistrate to hold inquiry provided the said Magistrate  would have had jurisdiction to inquire into the offence if  it had been an offence committed within the local limits  of his jurisdiction. It is not disputed that the offence  alleged to have been committed by George in the letter of  request by the State of America would, if committed in  the local limits of the Magistrate, have given the  Magistrate jurisdiction to inquire into the same. The Act,  being a special provisions dealing with the extradition of  fugitive criminals, shall exclude from application the  general provisions of the Code of Criminal Procedure,  1973. In any case, Section 5 of the said Code gives  overriding effect to the special jurisdiction created under  any special or local laws. Sections 177, 188 and 190 of  the Code have no application to the proceedings under  the Act. We see no force in the contention of the learned  Counsel and reject the same."          Statute 846 issue  

45.     Mr. Vishwanathan complained that copy of Statute 846 was not  supplied.  The effect of the said statute was stated as under :- "       In order to convict a person of conspiracy in  violation of 21 USC 846, the government must prove the  following to the satisfaction of the jury beyond a  reasonable doubt :  First, that two or more persons made  an agreement to commit the crime which is stated to have  been the object of the conspiracy, and second, that the  defendant somehow knew the purpose of the agreement  and joined in it with the intent to further the illegal  purpose.  The government need not prove that the alleged  conspirators entered into any formal agreement, nor that  they directly stated between themselves all the details of  the scheme.  Similarly, the government need not prove  that all the details of the scheme were agreed upon or  carried out, nor must it prove that all of the persons

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alleged to have been conspirators were such, or that the  alleged conspirators actually succeeded in accomplishing  their unlawful objectives."   

In regard thereto, no grievance was made in the High Court.  No  ground has also been taken in this behalf in the special leave petition.   No prejudice is shown to have been caused.  It might have been better if  the statute itself has been reproduced but then it has clearly been stated  what was required to be proved and what was not required to be proved.   We must bear in mind that the High Court was dealing with a writ  petition filed by the appellant herein under Article 226 of the  Constitution of India and not an appeal from the order of the learned  Magistrate.           The superior courts while entertaining a writ petition exercises a  limited jurisdiction of judicial review, inter alia, when  constitutional/statutory protection is denied to a person.  But when it is  required to issue a writ of certiorari,  the order under challenge should  not undergo scrutiny of an appellate court.  Jurisdiction of the superior  court in this behalf being limited inter alia to the question of  jurisdiction, it was obligatory on the part of the petitioner to show that a  jurisdictional error has been committed by the court while exercising  the statutory powers.   Contention in regard to prejudice in such a  situation is required to be considered.  A person informed in law and  having taken all possible objections evidently knew that non disclosure  of the Statute 846 in verbatim did not prejudice him.  Had he been  prejudiced he would have taken the said point at the outset.  He did not  do so.  We are, therefore, of the opinion that it is not possible for us to  allow the appellant to raise such a contention for the first time before  us.           Information viz-a-viz Evidence

46.     The provisions of a statute, it is trite law, must be harmoniously  construed.  When a statute is required to be read with an International  Treaty, consideration of the provisions contained in the latter is also  imperative.  On a conjoint reading of Section 7 and Section 10 of the  Act read with paragraphs 2 and 3 of Article 9 of the Treaty, we are of  the opinion that the word "information" occurring in Section 7 could  not mean an evidence which has been brought it on record upon strict  application of the provisions of the Evidence Act.   The term  "information" contained therein has a positive meaning.  It may in a  sense be wider than the words "documents and the evidence",  but when  a document is not required to be strictly proved upon applying the  provisions of the Indian Evidence Act or when an evidence is not  required to be adduced strictly in terms thereof, the use of the word  "information" in Section 10 of the Extradition Act as also Articles 9(2)  and 9(3) of the Treaty becomes relevant.  Documentary evidence, no  doubt form part of a judicial record;   but then even in a court governed  by Criminal Procedure Code 1973 documents are to be supplied only  when the cognizance of the offence is taken.  At this stage, therefore,  the requirement of sub-section (5) of Section 173 of the Code of  Criminal Procedure was not necessary.           Section 10 of the Extradition Act speaks of certification of facts.   Such certification is found in the affidavit of Mr. Gilpin.  How such  certificate of fact is to be furnished does not appear from the provisions  of the said Act and the affidavit may serve the said purpose.   It is not,  therefore, possible to hold that the report of the learned Magistrate is  vitiated on the premise that he has failed to apply a mandatory  provision thereof.         Jurisdictional Issue 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 of the 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 Central Government.  A power

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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 a court would commit an accused in  terms of Section 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 of discharge of an accused or his extradition upon formation of  a prima facie view.  The legal principle in this behalf has 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 Section 208 of  the Code, no witnesses need be examined and cross-examined. If the  State has been able to prima facie 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 of the offences complained or for  extradition.   48.     In a case of this nature the second part of Section 10 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 a prima facie 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 of facts and judicial documents that would  include the indictment by the Grand Jury.     49.     Section 10 of the Act provides as to what would be received in  evidence.  The marginal note although may not be relevant for  rendition of decisions 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. vs.  Rajendra Pd. Ardevi and Ors. 2007 (1) SCALE 32]

50.     The use of the terminology ’evidence’ in Section 7 of the Act  must be read in the context of Section 10 and not d’hors the same.  It  is trite that construction of a statute should be done in a manner which  would give effect to all its provisions.           In Reserve Bank of India  vs. 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 of the entire Act...."

       [See also Chairman, Indore Vikas Pradhikaran  vs . Pure  Industrial Cock and Chem. Ltd. and others :  AIR 2007 SC 2458]

       Section 7 of the 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 M/s. Girnar  Traders (supra)  

       The Act is a special statute.  It shall, therefore, prevail over the  provisions of a general statute like the Code of Criminal Procedure.  

       All the evidences envisaged under Section 10 of the Act have  been produced before the learned Magistrate.  The statute speaks of  information specified  therein to be the evidence for the purpose of the  provisions of the said Act.

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The term "information"  although is of wide import, must be read  in the context of which it has been used.. Information may include  statement which falls short of confession as well as statement which  amounts to confession.  [See R.V. Babulal ILR 6 All 509 at 537]

       In Commissioner of Income Tax  vs. 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  vs. 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 of the 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, if duly  authenticated, be received as evidence.   

52.     We, therefore, are of the opinion that an information 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 of the opinion that no  case has been made out for interference with the impugned judgment.   The appeal is dismissed.