It was the peak of coronavirus pandemic on May 11, 2020, with India and Britain in lockdown, when the first extradition hearing of fugitive diamond merchant Nirav Modi commenced in the Westminster Magistrates Court in London. Till then, the Central Bureau of Investigation (CBI) team, which was pursuing the case on behalf of the Indian government, had ensured with their physical presence and real-time coordination with the Crown Prosecution Service (CPS) that Nirav did not get bail. But, the pandemic meant, the investigating agency had to now watch the court proceedings from India via video conferencing.
Nirav is wanted in India on charges of fraud and money laundering in the estimated US$ 2-billion Punjab National Bank (PNB) scam case. He is the subject of two sets of criminal proceedings, with the CBI case relating to a large-scale fraud upon PNB through the fraudulent obtaining of letters of undertaking (LoUs) or loan agreements, and the Enforcement Directorate (ED) case relating to the laundering of the proceeds of that fraud. He also faces two additional charges of “causing the disappearance of evidence” and intimidating witnesses or criminal intimidation to cause death, which were added on to the CBI case.
CBI’S GUNG-HO FIGHT IN LONDON COURT
While Team Nirav, led by barrister Clare Montgomery, put up a robust defence in the Westminster Magistrates Court to prevent the diamantaire from getting extradited to India, the CBI relied heavily on technology as a counter. WhatApp messages were exchanged with CPS lawyers as the proceedings unfolded to ensure that every doubt and every question raised by Montgomery was answered and rebutted.
At one point during the trial, Montgomery demanded a written assurance from the Government of India about the well-being of Nirav if he was extradited. In normal circumstances, this would have entailed a file being pushed upwards from the CBI investigating officers’ table to the Deputy Inspector General (DIG), the Joint Director, the Additional and Special Director, the Director of CBI and then moving further on to the Ministry of Home Affairs (MHA) for clearance. However, in this case, an emailed assurance was obtained in no time.
CBI officials, on condition of anonymity, told CNN-News18 that it was the perfect real-time example of how various agencies of the government now coordinate using new, technologically enhanced ways of presenting evidence.
An officer involved in the extradition proceedings said one officer was assigned the task of just collating documents, indexing then, creating hyperlinks and presenting the evidence in an easily readable form in an electronic device. “For two years, this is all that this officer did. It was crucial since the judge and CPS had to be given evidence in an easily readable form. Of the 32,000 pages we put together, ultimately only 6,000 pages were put out [before the court],” the officer told CNN-News18.
Another official highlighted the advantage the agency gained by regularly travelling to London to brief CPS lawyers and attend hearings. “For any government official to travel abroad, multiple permissions and clearances are needed. But in this case, we had standing clearance, which helped CBI depute three to four officers at every hearing in London,” another official, who CNN-News18 spoke to, said.
The overall approach was fruitful as the court denied bail to Nirav seven times.
OVERCOMING COVID, OTHER CHALLENGES
Covid-19 posed a fresh challenge for CBI when the case came up for hearing again in September 2020. This was a phase when Covid cases were rising in Britain and a 14-day quarantine had been imposed for anyone travelling to the country. Flights from India were suspended too. But, in time for the hearing, CBI Joint Director, Director of Prosecution and two other officers received waiver from the quarantine rules as they flew to London on one of the special Air India flights that were operating.
While Covid was a concern, the bigger challenge, CBI officials, said was preparing evidence, briefing the CPS before every hearing, conducting meetings to assess the situation during the trial and getting documents ready for the next hearing for over two years.
“Often, the day stretched to more than 24 hours. Our meetings with officials in India and Britain would start after the court hearings. As per India time, this would mean late evenings and the meetings would stretch post-midnight. Then the work of readying documents, which were to be presented the next day, would start. And there was regular investigation work,” an officer told CNN-News18.
NIRAV’S DEFENCE AND CBI’S COUNTER
Nirav had challenged India’s extradition request on the following grounds:
1) Lack of evidence: Nirav argued that he had not signed any document which proved his liability towards PNB or his role in any conspiracy. “We had to present evidence that was admissible under the British law. Statement under Section 161 under the Code of Criminal Procedure (CrPC) which forms the basis of framing of charges in India were argued to be inadmissible by Nirav’s lawyers in London. Without the witness statements recorded under Section 161, our case stood no chance. So our investigating officers had to submit affidavits to testify that the statements were recorded before them and were truthful,” an officer said.
To prove Nirav’s culpability, CBI sleuths scanned through thousands of documents and retrieved an email exchange between Nirav and his then general manager which proved that the former was aware of the conspiracy to obtain LOUs from PNB without offering 100% security. “The email exchange from 2008, the signature of Nirav Modi on I-TR and balance sheets of the firms under scanner and the fact that he gave 100% security against LOUs till 2010 proved his culpability,” said the officer.
Nirav’s defence team, however, raised more questions. CBI, in its charge sheet, has alleged that Nirav conspired to set up dummy directors in three companies – Diamond R US, Solar Experts and Stellar Diamonds. CBI’s allegation were that the directors were illiterate, they were farmers from Gujarat who were paid Rs10,000 each and accounts were opened in Surat Co-operative Bank in their names. These accounts, CBI alleged, were used for routing finances for Nirav.
The defence, during hearing, questioned how the Gujarati speaking villagers gave statements in English.
Judge Sam Goozee, however, noted in his order that CBI argument about admissibility of the evidence from the dummy directors was accepted under Section84 (4) of the Extradition Act of 2003.
One of the statements quoted in the court’s judgment states, “Examples of statements of dummy directors appointed to the three firms. Oghadbhai Kalsaria in a statement dated 19th March 2018 [v8 / p. 286 – 290], a farmer is approached together with five others to be paid modest amounts to sign documents as partners of the three firms and were given majority shareholdings. His statement also confirms that he was illiterate and was not aware of the consequences of signing cheques, partnerships documents or account opening forms. The indenture of partnership was executed by Nirav Modi.”
2) Political witch-hunt: Two journalists, a former high court judge and a former Supreme Court judge, hundreds of newspaper clippings and reports from various commissions were used by Nirav’s team to argue that the case against him was a political witch-hunt. Former Chief Justice of India (CJI) Ranjan Gogoi’s Babri Masjid judgment, and the 2G and Commonwealth Games cases, all found a mention in Nirav’s defence.
“The defence was very well prepared. A research team put together all media reports, commission reports, prison reports to argue that the case is politically motivated. Former law officers of ED and CBI were brought in to argue that there was no case, gem and jewellery experts gave opinions that what Nirav did was an established practise in the business internationally. Their line-up was very strong,” said an officer.
Nirav’s defence team also highlighted a press conference conducted by Union minister Ravi Shankar Prasad in May 2020 to allege intimidation of witness. Defence argued that since Prasad was the law minister of India, his comments against defence witness, retired Justice Thipsay should be seen as an attempt to intimidate witness. The Government of India, however, negated this charge, stating that what Prasad had spoken was linked to a verbal attack and counterattack between political parties in India. In a relief to India the Judge in his order on Thursday said, “His [Justice Thipsay’s] unwillingness to give further evidence in these proceedings, simply because he did not get the protections which in my view there was no sound basis to grant, meant his opinion went unchallenged by the GoI. There has been no ability for the Court to further scrutinise his expert testimony. Overall, these factors have the effect, in my assessment, of nullifying any weight I would have attached.”
3) Deteriorating mental health: A doctors’ opinion cited by Nirav states that if extradited, the diamond merchant would die by suicide. Defence asked for written assurance from Government of India that Nirav would be given access to mental health professionals of his choice, if extradited. Former bureaucrats told CNN-News18 that written assurances such as these would mean a fortnight or more of file movements, but in Nirav’s case, the assurance letter was drafted, approved by senior officers in North and South Block, and sent to CPS in London before the matter came up for hearing the next day.
4) Prison conditions: The crowded and less than ideal conditions in Indian prisons have been cited as one of the main reasons why India has failed to extradite several others from Britain over the past few decades. Nirav, too, brought in an expert, who is considered an authority in Europe on Indian prisons, to push this narrative. The opinion, however, was countred by CBI, which presented a video of the Arthur Road Prison barrack 12. Defence challenged the video on the grounds that it was produced as evidence in the Vijay Mallya case, too, and therefore was dated. The Central and Maharashtra government, without wasting any time, collaborated to shoot a fresh video of Arthur Road Prison in Mumbai where Nirav will be housed if extradited. The video showing, which showed decent living conditions, proved to be the clincher.
The prison department, too, had in a separate development assured that Nirav would be kept in a cell, where the number of detainees will be few. The department had also assured adequate light, ventilation and storage for personal belongings.
ANXIETY BEFORE VICTORY
CBI officials, who did not wish to be named, told CNN-News18 that there were a few moments of anxiety at the agency headquarters on Thursday, when the judgement was read out by Westminster Magistrates Court District Judge Sam Goozee.
The anxiety, however, soon turned into relief when the judge ruled that Nirav not only has a case to answer in the Indian courts, but that there is no evidence to suggest he would not receive a fair trial in India. “I am satisfied that there is evidence upon which NDM [Nirav Deepak Modi] could be convicted in relation [to] the conspiracy to defraud the PNB. A prima facie case is established,” the judge noted.
Nirav’s legal team did not immediately confirm if he intends to appeal against the ruling. Any appeal, if granted, will be heard at the Administrative Division of the High Court in London. Nirav, meanwhile, remains on remand at Wandsworth Prison until the Home Secretary’s decision to sign off on the extradition order.
CBI officials, too, have not let down their guard yet. “The option of appeal is still available to Nirav Modi and we have to ensure that it is countered too,” said a probe team officer.