The Indian authorities have submitted their legal response to the application filed by fugitive diamantaire Nirav Modi seeking permission to appeal against his extradition order in the UK Supreme Court.
The Crown Prosecution Service (CPS), which appears on behalf of the Indian government in the UK courts, had until Monday to file a response in the High Court in London on the 51-year-old diamond merchant's plea against being extradited to India to face charges in the estimated USD 2 billion Punjab National Bank (PNB) loan scam case.
The further appeal was filed by his lawyers last month after he lost his initial High Court appeal on mental health grounds, after a two-judge bench ruled that his risk of suicide is not such that it would be either unjust or oppressive to extradite him from Wandsworth Prison in London to Arthur Road Jail in Mumbai to stand trial on fraud and money laundering charges.
"We met the December 5 deadline," the CPS confirmed.
The High Court in London will now make a decision on whether to grant permission to appeal "on the papers", without a hearing. This process is likely to take some weeks and is not expected to be completed this year.
"If they refuse to certify a question and leave to appeal then that is the end of the road. If they certify a question but refuse leave, then he applies to the Supreme Court directly for permission,” the CPS has said.
Modi's appeal on the grounds of a point of law of general public importance is a high threshold that is not met very often.
On November 9, Lord Justice Jeremy Stuart-Smith and Justice Robert Jay who had presided over the appeal at the Royal Courts of Justice in London ruled that they were “far from satisfied that Mr Modi's mental condition and the risk of suicide are such that it would be either unjust or oppressive to extradite him”.
Their verdict also found every reason to accept that the government of India (GOI) will treat its assurances on Modi's medical care at Barrack 12 of Arthur Road Jail with "appropriate seriousness".
UK Home Office sources have indicated that it is unknown if and when extradition may take place as Modi still has legal challenges open to him. If his attempt to have his appeal heard in the Supreme Court fails, in principle, Modi can apply to the European Court of Human Rights (ECHR) to try and block his extradition on the basis that he will not receive a fair trial and that he will be detained in conditions that breach Article 3 of the European Convention on Human Rights, to which the UK is a signatory.
The threshold for an ECHR appeal is also extremely high because he would also have to demonstrate that his arguments on those grounds before the UK courts have been previously rejected.
The dismissal of the High Court appeal last month marked a major win for the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) case against the businessman, who has been in prison since his arrest on an extradition warrant in March 2019.
There are three sets of criminal proceedings against the diamantaire in India – the CBI case of fraud on the PNB which caused losses equivalent to over GBP 700 million, the ED case relating to the alleged laundering of the proceeds of that fraud and a third set of criminal proceedings involving alleged interference with evidence and witnesses in the CBI proceedings.
Then UK Home Secretary Priti Patel had ordered Modi's extradition based on Judge Sam Goozee's Westminster Magistrates' Court ruling in April 2021 and the case is now undergoing an appeals process on that extradition order.
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