The alleged entrapment of Mehul Choksi by a woman and his carriage to Dominican Republic by a boat was a classic example of RAW operations, hats off to India’s intelligence. Now the next challenge begins on how to bring him back.
Journey of Mehul Choksi
In 2018, Mehul Choksi left for Antigua under the pretext of a bypass surgery. Incidentally, this was the same time when Mr. Choksi, along with his nephew Nirav Modi, was being investigated for Rs. 13,400 Cr. in PNB Scam.
He had applied for citizenship of Antigua in 2017, well before the probe in the PNB scam began. He took the oath of Antiguan citizenship on January 29 2018, the same day on which the first criminal case was registered by the CBI against him. In September, 2018 Mehul Choksi surrendered his Indian Passport.
The PNB Bank scam was executed through fake LOUs (Letter of Undertaking) which is a form of bank guarantee under which a bank can allow its customer to raise money from another Indian bank’s foreign branch in the form of a short term credit
Mehul Choksi disappeared from Antigua and Barbadua on May 23 and was later arrested by the law enforcement agency of Dominican Republic on the charges of illegally crossing the border.
Possible Reason for Mehul Choksi leaving Antigua and Barbuda
It is possible that Choksi was trying to flee from Antigua to Cuba but was caught midway in Domanican Republic. This was done in order to avoid being extradited to India, where he had exhausted all appeals available. India has an extradition agreement with Antigua, but not with Dominica or Cuba. A successful getaway would have meant an increased difficulty in bringing the Offender home.
Actions in Dominican Republic
In Dominican Republic, Choksi is facing two different judicial actions. The government’s claim that the businessman entered the country unlawfully is being heard in a magistrate’s court in the Dominican capital Roseau. Choksi’s lawyers have also filed a petition with the Eastern Caribbean Supreme Court, saying that he was kidnapped and requesting that he be returned to Antigua.
Choksi’s attorneys claim their client was kidnapped and beaten.
On a side note, Antiguan Prime Minister Gaston Browne has stated that Antigua would not take him back and rather have India take him.
Is Mehul Choksi still a Citizen:
Under the Indian Citizenship Act, 1955, dual citizenship is not permitted. According to India’s citizenship law, a person’s nationality can be surrendered through particular procedures and acceptance of any foreign citizenship would immediately terminate an individual’s Indian citizenship.
It is claimed by the Indian Officials that Mehul Choksi did not complete all the formalities of surrendering his Indian citizenship.
Also, Section 9, facilitates the decision of the Central Government into still retaining an individual’s Indian Citizen subject to and answerable under the Indian law.
Section 18 of the Indian Citizenship Act also confers powers to the central government to make further rules as and when required.
In 2009, the Ministry of Home Affairs enacted 43 rules under section 18 to streamline the citizenship process, and rule 23 of this addition makes it tangibly clear that any Indian citizen who is going to acquire or has acquired foreign citizenship must disclose the circumstances in which the applicant acquired or intends to acquire foreign citizenship before the authorities (Ministry of Home Affairs).
Why can’t Mehul Choksi be extradited and the claims by his Lawyers
Choksi’s lawyers claim that by virtue of Section 119.1 of the Antiguan Constitution, Mehul Choksi is a citizen of Antigua and Barbuda, and that no lawful basis exists for extradition under Section 5 of the Extradition Act,1993.
It has been claimed that Choksi could not return to India as his passport had been revoked by Indian authorities. To which Indian authorities contested that if he intended to come back why did he applied for Antiguan citizenship.
Mehul Choksi’s Lawyer claimed that his client had weak ties with congress, which makes him eligible for the protection under section 8 of Extradition Act 1993. Section 8 states that (1) A person shall not be returned under Part IV, committed or kept in custody for the purposes of return, if it appears to the appropriate authority :
- that the offence of which that person is accused or was convicted is an offence of a political character;
- that it is an offence under military law which is not also an offence under the general criminal law;
- that the request for his return (though purporting to be made on account of an extradition crime) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or
- that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.
Extradition efforts by India:
Extradition is a judicial process and may take years since the accused has the right to appeal in court. Extradition process begins only after an arrest warrant has been passed and a request by the Ministry of External Affairs has been made to the Extraditing Country.
India managed to secure an Interpol Red Notice against Choksi, further tightening the case for extradition. Antigua and Barbuda is an Interpol member, but this does not ensure his arrest by member countries. A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. Interpol cannot pressurise any member country to arrest an individual who is served a Red corner Notice.
According to a recent media source, Choksi is currently appealing his citizenship revocation in an Antiguan civil court, as Antigua cancelled his citizenship last year. CBI (Central Bureau investigation) and ED (Directorate of Enforcement) officials have said that as soon as Choksi exhausts his appeal against revocation of citizenship, his extradition proceedings will begin.
Legal Hurdles in Extradition:
It has been claimed by Mehul Choksi’s legal team that he did not abscond from Antigua rather he was “honey trapped” by a woman who invited him to her apartment. From the apartment he was abducted by some men, beaten up and taken to Dominican Republic.
It is also contented that despite a case of revocation of Choksi’s Antiguan citizenship is under hearing, he is still an Antiguan citizen and therefore extradition should not be allowed.
India has to present a strong case that Mehul Choksi is an Indian Fugitive. Dominican court have clearly said that he will not be extradited till his case has been heard in open court
Choksi’s Legal team has alleged human rights violations and is suggesting a planned extra-judicial extraction on part of Indian and Antiguan authorities.
There are questions about Choksi’s Antiguan citizenship and whether he has broken any Dominican laws. If he has broken any Dominican laws, the question is whether officials there believe his case should be handled through the Dominican system.
Extradition depends upon treaties — bilateral or multilateral as also on the reciprocity and diplomatic relations between countries
Mehul Choksi is still a long way from home but the laudable efforts of the Indian Intelligence Services has brought the hope of bringing him to justice close to reality.
India will still have to use its diplomatic channels, which are often unpredictable to bring Justice to term.
Indian authorities’ efforts to apprehend fugitive diamond trader Mehul Choksi will hinge on the outcome of his repatriation request from Dominica, a country with which India has no extradition treaty or agreement.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at email@example.com.
This Article is made by Aditya Pratap in assistance with Aditi Dixit.
Cases argued by Aditya Pratap can be viewed here.
Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case