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1999 Supreme(Del) 438
High Court Of Delhi
FLEMMING LUNDING LARSEN - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 1106 of 1998
Decided On : 05/31/1999
A.K.VALI, Harjinder Singh
Headnote:Extradition Act, 1952 - Section 4, 5 & 7 — Extradition — Fugitive pleading guilty and thereafter absconding failing to appear for sentence — Fugitives flight from justice cannot confer any privilege but it is a factor which is against him for the purpose of extradition.
Section 4, 5 & 7 — Power of Magistrate — Accused alleged to have committed offence under Narcotic Drugs & Psychotropic Substances Act, 1985 — The Metropolitan Magistrate has the jurisdiction over such accused.
Held:
Magistrate who is appointed to enquire into the case of a fugitive criminal will have the same jurisdiction and powers as if the case was friable by a Court of Session or High Court. It is also significant to note that though Section 36-A of the NDPS Act starts with a obstinate clause the overriding effect thereof is however, confined and limited to the Code of Criminal Procedure alone. It does not override the provisions of the Extradition Act, who Special Act, dealing with extradition only. thereforee, by a deeming fiction contained in Sub-section (1) of Section 7 of the Extradition Act, the Magistrate who is appointed by the Central Government to enquire into the matter is conferred with the same jurisdiction and powers, as nearly as may be, as if the case were one friable by the Court of Session or High Court. The provisions of Sub-section (1) of Section (7) by a statutory device enhances the power and jurisdiction of the Magistrate to the level of power and jurisdiction enjoyed by a Session Judge or Additional Session Judge manning the Special Court appointed by the Government with concurrence of the Chief Justice of the High Court as envisaged by Section 36-A of the NDPS Act.
If the argument of the learned counsel for the petitioner is taken to its logical con-elusion, it will lead to starting results. While a fugitive criminal accused of a petty offence friable by a Magistrate, in India will be liable to be extradited to the requesting State, a fugitive criminal who is accused of a serious offence friable by an Additional Session Judge or a Session Judge, will not be liable to be extradited. This position cannot be countenanced in law. an interpretation which leads to absurdity must be shunned. thereforee, the submission of the learned counsel for the petitioner that the Metropolitan Magistrate was not legally competent to try the offence of which the petitioner was accused of an consequently could not have been appointed under Section 5 of the Extradition Act to make an enquiry into the case, cannot be sustained.
Section 10 — Request for extradition — Request was made on the basis of warrant of arrest issued by competent court — Documents duly signed and authenticated by the concerned authority cannot be found fault with.
( 1 ) BY this writ petition the petitioner seeks his release from detention. He also prays for setting aside of the order passed by Mr. Dharmesh Sharma, Metropolitan Magistrate, New Delhi, dated November 23, 1998 whereby a prima facie case was found in support of the requisition of the Union States of America for his surrender and extradition. The facts giving rise to the petition are as follows:
THE petitioner, a Danish National, and his associate negotiated sale of 2 kgs. of cocaine to undercover detectives Mr. Richard Friedman and Mr. Keith Camelo from Hollywood Police Department in Broward Country, State of Florida. Following the negotiations the petitioner delivered one kg. of cocaine to the undercover detectives on August 16, 1991 with the understanding that another kg. would bone delivered to them within ten minutes. The petitioner and his associate were then arrested and charged. On December 2, 1991, the petitioner entered an open plea of guilty to the charge of trafficking in cocaine in violation of Florida Statute Section 893. 135 (1) (B) (3) and conspiracy to trafficking in cocaine in violation of Florida Statute section 893. 135 (1)B3 (3 ). On September 10,1992 the petitioner was required to appear before the Court for his sentencing, but he failed to appear. Thereupon, a capias (a no bond warrant) was issued for his arrest. It appears that the petitioner had fled the United States of America to the country of his origin and therefore the warrant remained unexecuted. On August 6, 1997 the petitioner arrived at Indira Gandhi International Airport, New Delhi, by Scandinavian Airlines system flight SK-967 from Copenhagen as a transit passenger on his way to Nepal. The petitioner was arrested at the Indira Gandhi International Airport on the same day under Section 41 (l) (g) of the Code of Criminal Procedure, 1973, pursuant to the request of DSP, Interpol Wing, New Delhi, who had been lipped of by the United States Narcotic Central Bureau. After his arrest the petitioner was produced before the Additional chief Metropolitan Magistrate, New Delhi, who remanded him to judicial custody which was extended from time to time till August 12, 1997. In the meanwhile, on August 6, 1997 itself the Ministry of External Affairs received a written request from the United States of America through its Embassy at new Delhi for provisional arrest of the petitioner. This request was made in accordance with Article II of the Extradition Treaty between the United States of America and the United Kingdom signed at London on December 22, 1931 and made applicable to India in accordance with Article 14 thereof from march 9, 1942. On receiving the above solicitation the Central Government requested the learned A. C. M. M, New Delhi, to issue a provisional warrant for the arrest of the petitioner under Section 34b (1) of the Extradition Act, 1962 (for short the Act ). Acceding to the request the learned A. C. M. M, New Delhi, on August 12, 1997 issued the requisite warrant for the arrest of the petitioner whereupon the petitioner was formally arrested under sub-section (1) of Section 34b of the Act. Thereafter the Government of India received a letter dated September 29, 1997 from the. Government of United States of America through diplomatic channels for extradition of the petitioner. Pursuant to the request, the Central Government, on October 22, 1997, on the basis of the material submitted before them by the government of the United States of America, passed an order requesting Mr. Dharmesh Sharma, Metropolitan Magistrate, Patiala House, New Delhi, under Section 5 of the Act, to make an enquiry into the case. The formal request received from the Government of United States of America for the extradition of the fugitive criminal together with a warrant of arrest issued by the Circuit Court, Seventeenth Judicial Circuit, in and for Broward County, State of Florida, United States of America, and a copy of the gazette notific
