Holding

The magistrate’s enquiry under Sections 7 and 10 of the Extradition Act need only reach a prima facie finding; the term "information" is not limited to strict evidentiary proof, and the Act prevails over the general procedural statutes.

Summary

The United States requested the extradition of Sarabjit Rick Singh on drug‑trafficking and money‑laundering charges, and the Indian government directed an Additional Chief Metropolitan Magistrate to conduct an enquiry under the Extradition Act, 1962. Singh challenged the magistrate’s order, arguing that the documents supplied did not satisfy the requirements of Article 9 of the Indo‑U.S. Treaty and that Section 7 of the Act required strict evidentiary proof akin to a trial. The Supreme Court held that the magistrate’s role is limited to making a prima‑facie finding and that the term “information” in Section 7 is not confined to evidence as defined by the Evidence Act. It further ruled that the Extradition Act, being a special statute, prevails over the general provisions of the Code of Criminal Procedure and the Evidence Act, and that the magistrate correctly applied Sections 7 and 10 of the Act. Consequently, no jurisdictional error or prejudice was found, and the appeal was dismissed.

Issues considered

The scope and meaning of "information" under Section 7 of the Extradition Act, 1962 in relation to the Evidence Act.
Whether the magistrate must apply the standard of proof of a trial when conducting an extradition enquiry.
The applicability of the Code of Criminal Procedure, 1898/1973, and the Evidence Act to proceedings under the Extradition Act.
Whether the failure to supply certain documents (e.g., Statute 846) prejudiced the appellant’s right to a fair enquiry.
The jurisdiction of the magistrate to commit the fugitive criminal based on a prima facie finding.

Legislation cited

Code of Criminal Procedure, 1898s. 208, s. 209
Code of Criminal Procedure, 1973s. 173(5)
Extradition Act, 1962s. 10, s. 5, s. 7
Indian Evidence Act, 1872s. 3
Narcotic Drugs and Psychotropic Substances Act, 1985

Subjects

extraditionprima faciemagistrate enquiryinternational treatyevidenceIndian Evidence ActCode of Criminal Proceduredrug traffickingmoney launderingincorporation by referencejurisdiction

Judgment

i

SARABilT RICK SINGH A
v.
UNION OF INDIA

DECEMBER 12, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Extradition Act, 1962:
ss. 7 and 10-Request by Government of U.S.A. for extradition c
of appellant on ground of his 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!... material particulars-Held: No case made out D
for interference with extradi!;on order-Magistrate is only required to
arrive at prima facic finding, eitl;er in favour offugitive criminal or
in support of the 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 of Evidence E
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 of general 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), F
227-Code ofCriminal Procedure, 1898-ss.208, 209.
ss. 7 and 10-Evidence-Appreciation of, for trial ofaccused vis-
a-vis to make report upon holding enquiry in terms ofprovisions of
the Act-Distinction between-Criminal trial-Enquiry.
G
Writ:
Writ ofcertiorari-Jurisdiction ofsuperior courts-Scope of

H
322 SUPREME COURT REPORTS [2007] 13 (Add1.) S.C.R.

A Appeal:
Appeal before Supreme Court- Fresh plea-Plea as to prejudice
taken.for first time before Supreme Court-Held: Not tenable.
Inte1pretation ofstatutes:
B
Harmonious construction-Held: When statute is required to be
read with International Treaty, consideration ofprovisions contained
in the latter is also imperative-Extradition Act, 1962- lndo US.
Treaty- Article 9, Paragraphs 2 and 3.
C Doctrines/Principles:
Incorporation by reference-Applicability of
Words and phrases:
D 'information '- Meaning of- In the context ofs. 7 ofExtradition
Act. 1962.
The Government ofU.S.A. made a formal request on 7th January,
2002 for extradition of the appellant, an Indian citizen and resident of
U.S.A on the ground that he was wanted to stand trial inf.he U.S. District
E 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<1uest to the Additional CMM to make
an enquiry in respect of the alleged offences levelled against him. He
F was produced before the said court. The documents appended to the
formal request for extradition were supplied to him. He was granted an
opportunity to file written statement. Appellant filed an application for
the supply of deficient document on the premise that the formal request
by Government of U.S.A. did not satisfy the requirements of Article 9
G of the In do U.S. Treaty as well as s.7 of the Extradition Act, 1962. His
request to supply copies of the documents however, was declined by
the Magistrate. Extradition enquiry was directed to proceed only on
the documents filed by the respondent in the trial murt subject to all
legal consequences. CMM recommended the extrndition of the
H
SARABJIT RICK SINGH v. UNION OF INDIA 323

appellant to U.S.A. A writ petition filed thereagainst by the appellant A
was dismissed by High Court. Hence the present appeal.
Dismissing the appeal, the Court
HELD: 1. Documents received from the Government of U.S.A.
show that the substance recovered was described as MDMA, which is B
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. The chemical reports also show that the drug is a
controlled drug. In India, an accused found guilty of the commission of c
the said offence, may be punished with rigorous imprisonment for a
minimum period oflO years which may extend to 20 years besides flne.
[Paras 28 and 29] [340-D-F]
2. Article 9(3) of the In do U.S. Treaty says that the request for
extradition should be supported by such information as would justify D
the committal for trial of the person if the offence had been committed
in the Requested State. S.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. E
[Para 30) [340-G-H; 341-A]
3. Incorporation by reference provides for a legislative device
where the legislature instead of repeating the provisions ofthe statute
incorporates it in another statute. The doctrine of incorporation of
reference as said to be containing ins. 7 of the Act would apply in the F
instant case. The said Act being a self contained Code, the provisions
thereof must be applied on their own terms.
[Paras31 and32} [341-B-D]
Karnataka State Road Transport C01poration v. B.A. Jayaram and G
Ors., (1984) Supp. SCC244 and Nagpur Improvement Trustv. Vasantrao
and Ors. and Jaswantibai and Ors., [2002] 7 SCC 657, relied on.
Mis. Girnar Traders v. State ofMaharashtra and Ors., (2007) 10
SCALE 391, referred to.
H
324 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A 4. Ss. 208 and 209 Code ofCriminal Procedure, 1898 contemplated
taking ofsuch evidence as may be produced in support ofthe prosecution
or on behalf of the accused that may be called for by the Magistrate.
Compliance ofthe principle of natural justice or the extent thereof and
the requirement of law is founded in the statutory scheme. The
B 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
C discharge of thefugitive 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 s.7
envisages taking of such evidence as may be produced in support of
D the requisition of the foreign State as also on behalf of the fugitive
criminal It is open to the fugitive criminal to show thatthe 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 ofextradition
has been made out even otherwise. The Magistrate, therefore, in both
E the situations is required to arrive at a prima facie finding either in favour
of fugitive criminal or in support of the requesting state.
[Para 33) [341-E-H; 342-A-B]
Sohan Lal Gupta (dead) through LRs. and Ors. v.Asha Devi Gupta
(Smt) and Ors., (2003) 7 SCC 492, relied on.
F
5.1. 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
G 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 ofcommitment
[Para 35) 1342-D-E]
Ramnarayan Mor and Anr. v. State ofMaharashtra, [19M] 5 SCR
H 1064, referred to.
SARABJIT RICK SINGH v. UNION OF INDIA 325

5.2. Law in India recognizes affidavit evidence. Evidence in a A
situation of this nature would, thus, mean, which may be used at the trial.
It may also include any document which may lead to discovery offurther
evidence. S.3 ofthe Evidence Act which defines "evidence" in an enquiry
stricto sensu may not, thus, be applicable in a proceeding under the Act.
[Para36)[342-F-G] B

5.3. S.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
offacts and judicial documents standing facts may, ifduly authenticated, C
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 D
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 E
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 F
which would not meet the standard to hold him guilty at the trial.
[Para 37] [342-G; 343-A-D]

6. 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 G
admissible by reason of a provision of a statute. But what misses the
-1
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 ofa primafacie
H
326 SUPREME COURT REPORTS (2007] 13 (Addl.) S.C.R.

A case in an enquiry. Strict formal proof of evidence in an extradition
proceeding is not the requirement oflaw. 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 ofone party or the other. [Para 38) [343-F-G; 344-A)
B
Land Acquisition Officer and Manda! Revenue Officer v. V.
Narasaiah, [2001) 3 SCC 530; and Cement Corporation ofIndia Ltd v.
Pwya and Ors., [2004) 8 SCC 270, referred to.

7. Existence of prima fade case or bringing on record credible
C evidence at the stage ofcommihnent is again a requirement ofa statute.
S.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.
An enquiry conducted pursuant to the order ofthe Central Government
D is only to find out whether there was a prima facie case against the
fugitive criminal for extradition to th<! treaty country. Mode and manner
ofenquiry has nothing to do with the rule in regard to standard of proof.
(Paras 40 and 43) [344-F; 346-B-CJ

E CharlesGurmukhShobhrajv. UnionoflndiaandOrs., (1986)RLR
7: (1986)29 DLT 410 and Nina Pillaiv. Union ofIndia, (1997) Crl.L.J.
2359, approved.

Ramgopal Ganpatrai Ruia and Anr. v. The State ofBombay, [1958)
F SCR618; QueenEmpressv.NamdevSatvaji, (1887)1.L.R. ll Bom.372;
Allahabad High Court in Lachman v. Juala, (1882) I.L.R. 5 All 161 and
Rajpal Singh and Ors. v. Jai Singh and Anr., [1970) 2 SCC 206, referred
to.

8. No grievance was made in the High Court in regard to the non
G st1pply ofcopy of statute 8 for 6. 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 dearly been stated what was required to be
proved and what was not required to be proved. The High Court was
H
SARABJIT RICK SINGH v. UNION OF INDIA 327

dealing with a writ petition filed by the appellant under Article 226 of A
the Constitution of India and not an appeal from the order of the
Magistrate. [Para45} (347-F-G]

9. The superior courts while entertaining a writ petition exercise a
limited jurisdiction of judicial review, when constitutional/statutory B
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 ofthe superior court in this behalf being
limited to the question ofjurisdiction, it was obligatory on the part of
the petitioner to show that a jurisdictional error has been committed by C
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 D
He did not do so. It is not possible to allow the appellant to raise such a
contention for the first time before this Court.
[Para 45) [347-H; 348-A-C]
10. The provisions of a statute must be harmoniously construed.
When a statute is required to be read with an International Treaty, E
consideration of the provisions contained in the latter is also imperative.
On a conjoint reading ofs.7 and s.10 of the Act read with paragraphs 2
and 3 of Article 9 of the Treaty, the word "information" occuningin s.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 F
"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 G
"information'' in s.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 · H
328 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A requirement ofsub-section (5) of s.173 of the CrPC was not necessary.
It is not, therefore, possible to hold that the report ofthe Magistrate is
vitiated on the premise that he has failed to apply a mandatory provision
thereof. [Para 46] [348-D-H; 349-A-B]

B 11. In a case of this nature the second part ofs.10 ofthe 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
C and other information which are to be gathered from the official
certification of facts and judicial documents that would include the
indictment by the Grand Jury. S.10 ofthe 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
D main provision is sought to be interpreted differently, reference to
marginal note would be permissible in law.
[Paras 48 and 49] (349-G-H; 350-A-B]

Deewan Singh and Ors. v. Rajendra Pd Ardevi and Ors., (2007) 1
SCALE 32, relied on.
E
Rosiline George v. Union of India and Ors., [1994] 2 SCC 80,
referred to.
12. The use of the terminology 'evidence' in S.7 of the Act must
be read in the context of s.10 and not de 'hors the same. It is trite that
F construction ofa statute should be done in a manner which would give
effect to all its provisions. S.7 of the Act should not be read, thus, in
isolation and the literal interpretation would render the statute
unworkable. The Act is a special statute. It shall, therefore, prevail over
the provisions of a general statute like the Code of Criminal
G Procedure. [Para 50] [350-C, G]
Chairman, Indore Vikas Pradhikaran v. Pure Industrial Cock and
Chem. Ltd and Ors., AIR (2007) SC 2458, relied on.
Reserve Bank ofIndia v. Peerless General Finance and Investment
H Co. Ltd, [1987) 1SCC424, referred to.
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 329

13. All the evidences envisaged under S.10 of the Act have been A
produced before the Magistrate. The statute speaks of information
specified therein to be the evidence for the purpose of the provisions of
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 B
amounts to confession. [Para 50) (350-H; 351-A-B]

R. v. Babula!, ILR 6 All 509; Commissioner ofIncome Tax v. A.
Raman and Co. AIR (1968) SC 49 and Hirachand Kothari v. State of
Rajasthan, AIR (1985) SC 998, relied on. C
14. S.l0 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 offacts and judicial documents stating facts would, if duly D
authenticated, be received as evidence. An information need not be a
documentary evidence or an oral evidence as is understood under the
Indian Evidence Act. (Paras 51 and 52) (351-D-F]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. E
1705 of 2007.
From the final Judgment/Order dated 20.12.2006 of the High Court
of Delhi at New Delhi in W.P. (Crl) No. 299/2004.
Solicitor General oflndia. K.V. Viswanathan, K.V. Venkataraman, F
Manoj V. George, Deepa, Rajeev Kumar Singh, Shoeb Alam and T.V.
George for the Appellant.
P.P. Malhotra, P. Parmeswaram, Chetan Chawla, Gaurav Sharma
and Benny M.J. (for Susluna Suri) for the Respondent.
G
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
Introduction
H
330 SUPREME COURT REPORTS [2007] 13 (Addl.) S.C.R.

A 2. The scope and ambit of the provisions oflntemational Treaty vis-
a-vis the Extradition Act, I962 is involved in the present appeal.
Background Facts
3. Appellant herein is said to be an Indian citizen. He allegedly holds
B 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 entertainmen~ cultural events
and shows in various parts of the United States of America for a long
time.
c
4. The Government of the United States of America made a fonnal
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
0
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 ofMDMA and laundering
millions of dollars in drug proceeds. The organization is said to have
purchased large quantities of MDMA from various sources in Netherlands
E 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
F 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
G 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 oflndia in exercise of its power conferred upon it under
Section 5 of the Extradition Act, 1962 (for short, 'the Act') made a request
H
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 331

-ii'- ), to the Additional Chief Metropolitan Magistrate, New Delhi, to make an A
enquiry in respect of the alleged offences levelled against him. He was
produced
I
before the said court. The documents appended to the fonnal
request for extradition containing 154 pages were supplied to him. He
was granted an opportunity to file written statement.
B
7. On the premise that the said fonnal request did not satisfy the
- .., requirements of Article 9 of the Extradition Treaty as well as Section 7
ofthe 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
c
statute of the US Sec 846. Affidavit affinned 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
D
---. 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 E
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
v.,. extradition of the appellant to United States of America. A writ petition
filed thereagainst by the appellant questioning the legality and validity of F
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 G
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
H
332 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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
B 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
C 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
D 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,
E 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.
F
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 san1e when read into Section I0 of the Extradition
Act would lead to a conclusion that the records of the criminal case in
G United States were to be placed before the Magistrate so as to enable
him to apply his mind thereupon so as to fonn 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. Vishwanathan, would urge, that a
document has to be taken in evidence but it is another thing to say that
H the contents thereof are received in evidence without any formal proof.
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 333

_,..) A document by reason of a provision of a statute, it was submitted, can A
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 B
the purpose of enabling him to explain any circumstances appearing in
.A .....
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,
c
appearing on behalf of the Union oflndia, 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
D
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
E
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
. -.-·y
submitted by the learned Magistrate. Mr. Malhotra would submit that
F
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 l 0 of the Act.
The Treaty G

-+ 13. The Treaty between the Government of Republic oflndia 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 I thereof the Contracting States agreed to H
334 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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 offences to mean an offence
B
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 offence 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
c or after the fact to, any offence described in paragraph 1.
15. Article 4 defines political offences. Clause (2) of Article 4 inter
alia provides that offences related to illegal drugs, shall not be treated to
be political offence.
D
16. Article 9 provides for extradition procedures and required .. ·:
documents of which we may immediately notice :-
"Article 9 - Extradition Procedures and Required Documents :-
I. All requests for extradition shall be submitted through the
E
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 _.~

F
persons sought ;
(b) information describing the facts of the offense and the
procerlural history of the case;
(c) a statement of the provisions of the law describing the
G
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
H
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 335

--7- (e) the documents, statements, or other types of information A
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 :
B
(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 c
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 D
~· "' 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 ;
E
(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 F

(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
G
extradition request shall be received and admitted as evidence in
-t 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 oflndia resident in the United States or they are certified
or authenticated in any other manner accepted by the laws in the H
336 SUPREME COURT REPORTS (2007] 13 (Addi.) S.C.R.

A 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 offences enumerated therein.
B 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.
c 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
D 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
E suspected to be, in some part oflndia. 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 an order to
.-'I ~ ••
F 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.
G
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
H
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 337

(1) When the fugitive criminal appears or is brought before the A
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.
B
(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 C
convicted is an offence of political character or is not an extradition
offence.
(3) If the Magistrate is of opinion that aprimafacie case is not
made out in support of the requisition of the foreign State, he shall
discharge the fugitive criminal. D
(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 E
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 F
terms:-
"Section I 0 - Receipt in evidence of exhibit depositions and other
documents and authentication thereof
(I) In any proceedings against a fugitive criminal of a foreign State G
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
H
338 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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
B
duly authenticated if-
(a) the warrant purports to be signed by a Judge. Magistrate >- -
or office; of the State where the same was issued or acting in
or of such State ;
c (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 ;
D
(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 ;
E (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 x-.. .' .,. ---
F --
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
G laundering.
-1--
. 24. It contained a certificate of authentication by the First Secretary
(Consular), Embassy oflndia, Washington DC in terms of the Treaty. It
also contained a certificate from the Secretary of State certifying that the
H documents annexed thereto were under the authority of the Department
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 339

"- of Justice of the United States of America and that such seal is entitled to A
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 B
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 c
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 D
_, 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 ofJustice in Washington, D.C.
E
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 ; F

(iv) penalties ;
(v) statutory provisions ;
(vi) exhibits; and
G
(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 -
H
340 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A (a) consprracy
(b) possession of drugs ;
(c) drug trafficking;
(d) money laundering; and
B
(e) use of telecommunication facilities for drug trafficking.
Report of the Learned Magistrate
27. Admittedly the learned Magistrate did not find any primafacie
c case in regard to Count Nos. 9, 16, 17, 19, 20, 22 and 23.
Allegations against the Appellant
28. Docwnents received from the Government of United States of
America show that the substance recovered was described as MDMA
D 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
E substance under the Narcotic Drngs 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 minimwn period of 10 years
F 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
G
should be supported by such infom1ation 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
H jurisdiction and powers, as nearly as may be, as ifthe same were one
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 341

"'t- I triable by a Court of Sessions or High Court. A
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 v. B.A. Jayaram and
Ors., [1984] Supp. SCC 244. and Nagpur Improvement Trust v.
B
Vasantrao and Ors., and Jaswantibai and Ors., [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 Mis. Girnar Traders v. State c
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 of the Act would apply in the instant case. We
may, however, hasten to add that the said Act being a self contained Code, D
• the provisions thereof must be applied on their own terms.
Application of the Statutory provisions
33. Sections 208 and 209 of the Code of Criminal Procedure, 1898
contemplate taking of such evidence as may be produced in support of E
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, F
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 G
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
H
342 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A criminal to show that the offence alleged to have been committed by him -<
i
i.s 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
B support of the requesting state. [See Sohan Lal Gupta (dead) through
LRs. And Ors v. Asha Devi Gupta (Smlj and Ors., [2003] 7 SCC 492].
34. What would constitute "evidence" came up for consideration
before this Court in Ramnarayan Mor and Anr v. State ofMaharashtra,
C [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
D 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
E 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.
F
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
G 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
H
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 343

~
,_ they are used or not) as also the copies thereof and official certificates of A
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. B
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 c
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 D
-. I-
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 Manda! Revenue
E
Officer v. 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
r-..- 4.. of this Court in Cement Corporation of India Ltd. v, Purya and Ors.,
F
[2004] 8 sec 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/
G
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
H
344 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A the documents would be proved and if proved, the same would be
i -<
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
Michael Ryan 'O' Mealey and Alan Lane Blackley who had been
B 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. )- M

39. Our attention has been drawn to a decision of this Court in
Ganpatrai Ruia and Anr. v. The State of Bombay, [1958]
c Ramgopal
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 Born.
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
D
is difficult to apply those crucial words "sufficient grounds" in an extradition -f .,-
case. •
Therein, this Court considering the evidence brought on records,
posed a question as to whether the same constituted a prima facie case,
E or that the voluminous evidence adduced therein was so incredible that
no reasonable body of persons could rely upon it.
40. Existence ofprimafacie case or bringing on record credible
evidence at the stage of commitment is again a requirement of a statute.
F 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 urder may not stricto sensu be necessary for making a report.
41. Reliance has also been placed on Rajpal Singh and Ors v. Jai
Singh and Anr., [1970] 2 SCC 206 wherein this Court opined :
G
"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
H conviction. The reason obviously is that ifhe were to do that he
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 345

would be hying the case himself instead of leaving it to be tried by A
,,._
.. 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 ifhe was B
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 c
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 D
~
i 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 E
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 F
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 is no G
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
H
346 SUPREME COURT REPORTS [2007) 13 (Addi.) S.C.R.

A 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 Ill

the said proposition of law.
43. Consistent view of the courts oflndia in this behalf, however,
B
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 v. Union ofIndia and Ors.,
c (1986) RLR 7 : (1986) 29 DLT 410 and Nina Pillai v. Union ofIndia,
(1997) Cr!. L.J. 2359 paragraphs 9 and 11 ].
44. Counsel for both the parties have relied upon the decision of
this Court inRosiline George v. Union ofIndia and Ors., (1994] 2 SCC
D 80. This Court therein noticed a commitment of this country to honour
the international obligations arising out of the 1931 treaty. For the said f
.. •
purpose even the international statute like the Fugitive Offenders Act, 1881
was held not to be applicable.

E
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 :-:
..:- _,,-
F "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
G 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
H
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 347

general provisions of the Code of Criminal Procedure, 1973. In A
·~ ,. 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." B

Statute 846 issue
- j'

45. Mr. Vishwanathan complained that copy of Statute 846 was not
supplied. The effect of the said statute was stated as under:-
c
"In order to convict a person of conspiracy in violation of2 l 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 D
~
.. 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 E
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 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 F
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 G
filed by the appellant herein under Article 226 of the Constitution oflndia
·-;.-- 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/ H
348 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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 ofjurisdiction, it was obligatory on the
part of the petitioner to show that a jurisdictional error has been
B 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 infonned 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
c 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
D 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 -t
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
E 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
·\. ""'.
F be strictly proved upon applying the provisions of the Indian Evidence
Act or when an evidence is not required to be adduced strictly in tenns
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
G even in a court governed by Criminal Procedure Code 1973 documents
are to be supplied only when the cogni7.ance 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.

H Section 10 of the Extradition Act speaks of certification of facts.
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 349

'~ Such certification is found in the affidavit of Mr. Gilpin. How such certificate A
~
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.
B
Jurisdictional Issue
> 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 of the Act confer power
and jurisdiction upon the Magistrate as the case is not brought before it c
by the prosecutor or the complainant, but an enquiry is entrusted to the
designated court by the Centrar Government. 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 D
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 E
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
r 'i.~ 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 F
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 l 0 of the G
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 H
350 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R.

A 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
B 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. v. Rajendra Pd Ardevi } .
and Ors., (2007) 1 SCALE 32]
50. The use of the terminology 'evidence' in Section 7 of the Act
C must be read in the context of St:ction 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 v. Peerless General Finance and
D 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
E 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...."

F [See also Chairman, Indore Vikas Pradhikaran v. Pure Industrial
Cock and Chem. Ltd. and Ors., 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 Mis. Girnar Traders (supra)
G
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
H
SARABJIT RICK SINGH v. UNION OF INDIA [SINHA, J.] 351

'1'- 'r specified therein to be the evidence for the purpose of the provisions of A
the said Act.
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
B
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. c
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. D
~ ·~
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 E
authenticated, be received as evidence.
52. We, therefore, are of the opinion that an infonnation need not
be a documentary evidence or an oral evidence as is understood under
~-,.
the Indian Evidence Act. F
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.
D.G. Appeal dismissed. G

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