“Q.46 Please furnish the details of your assets, bank accounts and business interest outside the country? Ans.- I have no any asset, bank accounts outside India but I have business relation with companies outside India for technology transfer only.”
“(1) There shall be charged on every assessee for every assessment year commencing on or after the 1st day of April, 2016, subject to the provisions of this Act, a tax in respect of his total undisclosed foreign income and asset of the previous year at the rate of thirty per cent. of such undisclosed income and asset. Provided that an undisclosed asset located outside India shall be charged to tax on its value in the previous year in which such asset comes to the notice of the Assessing Officer. (2) For the purposes of this section, ‘value of an undisclosed asset’ means the fair market value of an asset (including financial interest in any entity) determined in such manner as may be prescribed.”
“Subject to the provisions of this Chapter any person may make, or after the date of commencement of this Act but on or before a date to be notified by the Central Government in the Official Gazette, a declaration in respect of any undisclosed asset located outside India and acquired from income chargeable to tax under the Income-tax Act for any assessment year prior to the assessment year beginning on 1st day of April, 2016- (a) for which he has failed to furnish a return under section 139 of the Income-tax Act; (b) which he has failed to disclose in a return of income furnished by him under the Income-tax Act before the date of the commencement of this Act; (c) which has escaped assessment by reason of the omission or failure on the part of such person to make a return under the Income-tax Act or to disclose fully and truly all material facts necessary for the assessment or otherwise.”
“Sh. Sanjay Bhandari being an Indian resident having undisclosed foreign assets chose deliberately not to avail the opportunity and declare his undisclosed foreign income & assets and thus wilfully made an attempt to evade taxes on his undisclosed foreign income & assets.”
“(1) If a person, being a resident other than not ordinarily resident in India within the meaning of clause (6) of section 6 of the Income Tax Act, wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to ten years and with fine. … (3) For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person- (i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or (ii) makes or causes to be made any false entry or statement in such books of account or other documents; or (iii) wilfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or (iv) causes any other circumstances to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act of the payment thereof.”
“Offence of money-laundering.–Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected to proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.”
“(3) The conditions are that- (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (4) The conditions are that- (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge.” (a) the judge ought to have decided a question before him at the extradition hearing differently; (b) if he had decided the question in the way he ought to have done, he would have been required to order the person’s discharge. (a) an issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing; (b) the issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently; (c) if he had decided the question in that way, he would have been required to order the person’s discharge.”
“Between1 July 2015 and7 February 2017 , Sanjay Bhandari dishonestly made a false representation to the Income Tax Authorities, namely that he did not have any income or assets outside India, knowing this to be untrue and intending thereby to make a gain for himself.”
“57. I am required to identify the essence of the conduct alleged. I am satisfied that the Government do not intend to prosecute the Defendant for evading an asset tax. The affidavit of Vivek Gupta summarises the case that the Defendant, as an Indian resident was liable to be taxed on his global income. He did not disclose that income (or his assets) with the intent to avoid paying tax on that undisclosed income. He used his undisclosed foreign income to acquire foreign assets. His undisclosed income is detailed at page 63 of Mr Gupta’s affidavit. It is alleged that the undisclosed foreign income amounted to approximately£64,857,062 and that the tax evaded amounted to approximately£19,558,295 . It is alleged that the Defendant falsely informed the Income Tax Authorities that he had no foreign income. I have no doubt that it can be properly inferred that he intended to make a gain by doing so. 58. The Defendant’s failure to take advantage of the amnesty window provided by s.59 BMA meant that he was also liable to a penalty charge for failing to disclose his overseas assets. I am satisfied that the levy is not the essence of the conduct alleged. The period for its calculation and payment is not relevant to my consideration. I do not accept there is a link between s.10 and s.51 of the BMA. 59. Mr Stansfeld’s analysis of the BMA has not made me doubt that the Defendant is sought for making a false representation to the income tax authorities namely that he did not have an income outside India which he knew to be untrue with intent to make a gain for himself. 60. I am satisfied that the key features of the conduct alleged: a. The defendant was resident in India for tax purposes. b. He was in receipt of income into foreign bank accounts. c. He owned a number of assets overseas which he had purchased using the income from his undisclosed foreign bank accounts. d. He failed to declare his overseas income and assets. e. He falsely represented that he did not have overseas income or assets. f. He benefited from the income and assets that had not been declared. … 64. Dishonest behaviour would be the inevitable corollary of proving the matters alleged to constitute the foreign offence. 65. I am satisfied so I am sure that the GOI have proved that the conduct in the request is capable of satisfying the requirements of the notional English offence, if proved.” (Emphasis added.)
“The penal provisions under Sections 50 and 51 of the Black Money Act would come into play only when an assessee has failed to take benefit of Section 59 and neither disclosed assets covered by the Black Money Act nor paid the tax and penalty thereon.”
“If the resident India did not avail this opportunity despite having the undisclosed foreign assets, this necessarily leads to a conclusion that Indian resident has willfully evaded tax, penalty or interest on such undisclosed foreign assets and thus violated the provisions of Black Money Act and liable for prosecution under Black Money Act, 2015 including section 51 of the Black Money Act, 2015. The offence of willful attempt to evade tax, penalty or interest referred to in section 51 of Black Money Act, 2015 is a scheduled offence under PMLA, 2002. Entire undisclosed foreign income and assets are the proceeds of crime committed and defined under Black Money Act, upon failure of resident Indian to disclose it in the Income Tax Return and the compliance window provided under section 59 of Black Money Act, 2015. Acquisition of property prior to coming into force of the Black Money Act is of no consequence since it became the property generated from the crime the moment accused failed to disclose during the window of opportunity provided under the Black Money Act. The non-declaration or inaction of the Resident Indian is a willful intent to evade Tax, Interest or penalty on such undisclosed foreign assets.”
“there is no reason or requirement under the law to set out any indictment period so long as the opportunity to disclose undisclosed foreign asset under section 59 of the Black Money Act is not availed and no such declaration being there, the penal provisions under 51 of the Black Money Act would come into play.”
“It is the Government’s case that during a search conducted at the premises of the defendant on27 April 2016 by the Income Tax Authorities, the defendant denied having owned any foreign assets. Various documents were found relating to foreign income and assets which were not declared by the defendant to the tax authorities. He later admitted ownership of such undisclosed assets before the Income Tax Authorities.”
“In relation to all three scenarios the respondent has not in my judgment established (certainly not to the standard required) that the conduct alleged, if transposed to the United Kingdom, would involve or generate a charge to tax whose concealment by the appellant would then amount to the offence of cheating the Revenue.”
“It is said that given the conduct test approved in Norris, ‘it is irrelevant whether or not the alleged transactions would give rise to personal liability for income tax under UK tax law’. It is enough … that the conduct alleged demonstrates the making of false statements in an income tax return, and evading the payment of tax, purely in the context of the tax law of Canada, once it is shown that such misstatements or evasion would, in a purely English context, amount to cheating the Revenue. I think this misunderstands the conduct test. For the reasons I have given it is not shown that the conduct, transplanted here, would constitute the actus reus of the UK law offence of cheating the Revenue.”
“31. …trading without having satisfied the rigorous requirements of Articles 5 to 10 of the Directive (and the Italian equivalent), which led to ‘authorisation’. The conduct of the business in the UK, without having gone through those hoops, would not necessarily constitute an offence under the law of England and Wales. Accordingly, it seems to me that the court could not be satisfied, to the requisite standard, that section 64(3)(b) of the Act was satisfied.”
“The circumstances must be translated, so far as possible, from the US context to an English context. So, a failure to declare a bank account to the US authorities must be treated as if it were a failure to declare a bank account to the English authorities. But obligations under US law are not to be translated. The relevant obligation must exist in English law. Otherwise extradition will expose the requested person to the risk of conviction for conduct that is not a crime in this jurisdiction.”
“Dishonest behaviour would be the inevitable corollary of proving the matters alleged to constitute the foreign offence.”
“77. I am satisfied that the essence of the allegation is that the foreign assets became criminal property when the defendant had avoided tax liability regarding those assets, which began when the BMA 2015 came into force in 2015. By not declaring foreign assets the defendant obtained a benefit, or the undeclared assets represented such a benefit (s.340 POCA 2002). S.340(6) POCA provides that if a person obtains a pecuniary advantage as a result of or in connection with conduct, he is to be taken to obtain as a result of or in connection with the conduct a sum of money equal to the value of the pecuniary advantage. 78. I identify the essence of the conduct as being that the defendant committed money laundering offences in relation to that property: a. By continuing to posses the property that ought to have been taxed; b. By concealing the property by making false representations that he did not have any foreign assets; and c. By entering or becoming concerned in a money laundering arrangement, and/or transferring the property, through the purported transfer of his properties through a trust.” a. By continuing to posses the property that ought to have been taxed; b. By concealing the property by making false representations that he did not have any foreign assets; and c. By entering or becoming concerned in a money laundering arrangement, and/or transferring the property, through the purported transfer of his properties through a trust.”
“If the judge is required to proceed under this section he must decide whether there is evidence which would be sufficient to make a case requiring an answer by the person if the proceedings were the summary trial of an information against him.”
“Such statements may, of course, contain hearsay material, and such material was not previously admissible (unless there was a relevant domestic exception), so that, for example, in R v Governor of Pentonville Prison, ex parte Kirby[1979] 1 WLR 541 , the out-of-court statement of an accountant witness was inadmissible to the extent only that it referred to, but did not properly exhibit, primary company reports whose accuracy could be supported only by the evidence of other persons. Section 84(2)-(4) would now render such material admissible in principle, thus extending … the scope of admissible evidence under section 84, in line with the modern approach to the admissibility of hearsay evidence, as expressed in the applicable provisions of theCriminal Justice Act 2003 .”
“The Indian Authorities have obtained various bank statements in the name of the defendant and his companies from the UAE. On12 April 2017 the UAE Ministry of Finance provided details of four accounts in the defendant’s name. Two of those accounts had money being transferred in and out: account no. 1014302546601 between 2011 and 2017, and account no. 1024302546602 between 2012 and 2016.”
“I am satisfied that Mahesh Gupta, Vitek Gupta and Anita Meena are entitled to produce the documents provided following a letter of request. No issue has been raised regarding the authenticity or accuracy of those documents. In any event those documents would be admissible in this jurisdiction pursuant tos.117 Criminal Justice Act 2003 .”
“146. The first question that I ask myself is, what is the status of the answers given by the Defendant? I note that the defendant was asked questions under oath. I am satisfied given the nature of the questioning and the fact that it was given under oath it would amount to an interview in this country. During his interviews he made admissions that he had immovable properties outside India, 2 foreign bank accounts, that he had incorporated 2 companies outside India and that the income from neither company was reflected in his tax returns. I am satisfied that those answers amount to a confession. 147. Whilst the bald facts of timing and location are known, there is no evidence of the manner of the questioning, whether informal breaks were given etc. The Government’s evidence was that the defendant’s statement was recorded by the Deputy Director of Income Tax (Inv.) in his capacity as authorised officer, in the presence of two independent witnesses, and recorded as stated by him, as such details were only within his personal knowledge. At the end of the statement, the defendant has written in his own handwriting that he has read over the statement and found it to be correctly recorded, and he has given it out of his own free will ‘and without any pressure, fear, threat or coercion’, It is denied that he was made to sign the statement without reading it. The defence have produced no evidence to contradict these statements but, in effect ask me to speculate on what may have happened. 148. There is no evidence of the defendant being offered an inducement or being subject to oppression. I decline to exclude it pursuant tos76 of the Police and Criminal Evidence Act 1984 . 149. The circumstances of the interview give me concern given their length and the absence of legal advice. However, the defendant has failed to provide any detailed evidence which could justify a conclusion that to admit it would have such an adverse effect on the fairness of the proceedings that I should not admit it. The defendant has fallen far short of persuading me that it should be excluded because of the way in which it has been obtained ‘outrages civilised values’ both in its own right and in the light of the Allen judgment.” (Emphasis added.)
“Have you slept properly and do you want to continue your statement? Yes, I have taken rest properly and I am feeling perfectly fine. I would like to continue my statement.” “How are you feeling? Do you want to take any rest? Sir, I am feeling perfectly ok and I would like to continue my statement.” “How was the behaviour of search party during the entire proceedings? The behaviour of members of the search party was very good they were nice to me and towards my Family. And I really thank them for the same.”
“A person has some undisclosed foreign assets. If he declares those assets in the Income-Tax Return for assessment year 2015-16 or say 2014-15 (in belated return) then should he need to declare those assets in the voluntary tax compliance under Chapter VI of the Act? As per the Act, the undisclosed foreign asset means an asset which is unaccounted/ the source of investment in such asset is not fully explainable. Since an asset reported in Schedule FA does not form part of computation of total income in the Income-tax Return and consequently does not get taxed, mere reporting of a foreign asset in Schedule FA of the Return does not mean that the source of investment in the asset has been explained. The foreign asset is liable to be taxed under the Act (whether reported in the return or not) if the source of investment in such asset is unexplained. Therefore, declaration should be made under Chapter VI of the Act in respect of all those foreign assets which are unaccounted/ the source of investment in such asset is not fully explainable.”
“There are at least 3 on-going enquiries against him. Those enquiries are likely to involve substantial amounts of material. I am satisfied that there is a real risk of the defendant being removed from prison for questioning. I am satisfied that the defendant faces a real risk of article 3 non-compliant treatment if he is detained in a police station or at the premises of other investigatory bodies. I am concerned that the assurances do not specifically exclude the real risk of the defendant being transferred to a police station or other investigating bodies premises on a temporary basis, where he faces a real risk of Article 3 non-compliant treatment.”
“Applying Aranyosi I urgently request the government to confirm whether they will provide an assurance that, if the defendant is refused bail, he will not be removed from prison unless: He is granted bail. Requires medical treatment in a hospital. For appearances before a court. Alternatively an assurance that he will not be removed from prison for questioning unless he is accompanied at all times by a lawyer of his choice. I will assess any assurance received without further representations unless I require them.”
“In 2018, following a direction by the High Court for the Central Bureau of Investigation (CBI) to investigate the allegations of assault and physical torture on several prisoners lodged in the high-risk ward, counsel for the Delhi Government informed the bench that ‘while excesses were committed by jail staff and personnel of Tamil Nadu special police, criminal proceedings may not be instigated given that jail officials were working under stressful conditions in an overcrowded prison’.”
“These jails are also short-staffed. As per the jail manual, there should be one warder for eight inmates. But in reality one warder keeps an eye on almost 700 inmates here. As far as availability of improvised weapons with the gangsters is concerned, we regularly conduct thorough checking of the inmates. But checking over 22,000 inmates every day is impossible.”
“The cases of torture in Delhi Prisons, as alleged in the attached report are totally denied. Delhi, being the capital city, has large concentration of media, local, national and international. There are no chances of torture of prison inmates in view of firm vigilance by prison officers, CCTV monitoring, transparency in grievance redressal and visit of civil society persons in jail.”
“224. Tihar is overcrowded. It currently houses prisoners at approaching 300% capacity. I accept Dr Mitchell’s evidence that overcrowding increases pressure on all prison services, exacerbates tension and frustration among prisoners, which can make it more difficult for staff to maintain control. … 227. Tihar prison is a complex that consists of nine central jails which in 2019 held 12,106 prisoners (the numbers have since increased). I have been provided with a schedule, on behalf of the defendant, which details deaths and incidents of torture in all Tihar prisons, with an indication of whether they were perpetrated by staff or other prisoners, the evidence having largely been obtained from open-source material. Dr Mitchell’s evidence was that this demonstrates a culture which exists across all Tihar prisons from which the defendant cannot be protected. I do not accept that the evidence relied upon is cogent and that it does establish a culture as opposed to sporadic individual events. Further, the evidence is that the courts have subsequently ordered enquiries into those events and that prosecutions have followed. This satisfies me that the Government of India will prosecute such behaviour when it can be properly identified. 228. The three assurances set out the general conditions, healthcare and general regimes which satisfy me that there is no real risk of the defendant being subjected to inhuman or degrading treatment as a result of those factors. 229. The risk of violence from staff or other prisoners is addressed in the document from the Office of Director of Prisons where he states that ‘The proposed ward is guarded 24 x 7 by guarding staff and has proper CCTV surveillance by senior officers of jail. The ward is under supervision of Assistant Superintendent of Prisons who takes rounds of the ward and ensures security and safety of all inmates of the ward’. 230. The defendant raises concern about the efficacy of this protection citing 4 occasions between 2020 and 2022 when prisoners were killed despite the existence of CCTV. Sadly, no system can be full proof so far as inter prisoner violence is concerned. The test is whether the State is unable or unwilling to act to protect the defendant. Here the State has confirmed that guards will be present and that the defendant’s ward has ‘proper’ CCTV surveillance undertaken by senior officers. I am satisfied that these arrangements meet the test. 231. I have already rejected the assertion that there is a culture of violence and extortion by staff against prisoners in Tihar. I am satisfied that the assurance provides a system to protect the defendant against such acts. … 235. The combined Assurances satisfy me that there is no real risk of the defendant being subjected to Article 3 non-compliant treatment.” (Emphasis added.)
“Delhi Prisons comprises of 16 Central Jails (9 Jails in Tihar Prisons Complex, 1 Jail in Rohini Prison Complex and 6 Jails in Mandoli Prison Complex) and has a sanctioned capacity to lodge 10026 prisoners in these jails. As on 31.08.23, there were 20214 prisoners comprising 19465 males and 749 female prisoners. There are dedicated jails for lodging convict prisoners, first timer and repeater under trial prisoners, female prisoners, adolescent prisoners and High Security Prisoners.” (Emphasis added.)
“Dr Mitchell spoke to former very senior officials of various law enforcement agencies, who reported the frequent use of torture of criminal suspects and young men being physically abused in prison and rich prisoners being extorted. Further, two officers talked about prison staff being open to bribes and trafficking in mobile phones and that corruption was endemic (Mitchell, §§10.7-8).”
“Several news reports corroborate that incidents of violence and extortion are unfortunately common and quite frequent in the Indian prison system, especially in Tihar Jail, New Delhi. At this stage, it is pertinent to refer to Prison Statistics, 2020 by National Crime Records Bureau, (Ministry of Home Affairs), Government of India: Deaths and Illness in Prisons: Year Total No. of Deaths in Prisons No. of Natural Deaths No. of Un-natural Deaths (incl. Suicide) 2018 1,839 1,638 144 2019 1,764 1,538 160 2020 1,887 1,642 189 As per the report, out of the 189 un-natural deaths of inmates- 156 inmates committed suicide, 8 inmates died in accidents, 8 inmates were murdered by inmates, 5 inmates died due to firing, 4 inmates were executed, and 3 inmates died due to assault by outside elements during 2020. For a total of 56 inmate deaths, cause of the death is yet to be known. Further a total of 160 clashes/group clashes inside jails were reported during the year 2020. Highest of such clashes were reported by Delhi (54) followed by Punjab (43) and Madhya Pradesh (36). A total of 166 persons consisting of 154 prisoners and 12 jail officials were injured in such clashes and 4 prisoners died in such clashes.”
“17. A perusal of the post-mortem report of the deceased Ankit belies the version of the Deputy Superintendent, Narender Meena and other staff that a scuffle took place in which both Narender Meena and Ankit received injuries. From injuries noted above, it is evident that deceased was brutally beaten …Not only did Narender Meena and others assaulted [sic] the deceased mercilessly, the Jail doctor on duty also failed to perform his duty when he examined Ankit at 1.00 AM in night and administered the injection, as he neither informed senior officers of the condition of Ankit nor referred Ankit to the Hospital. It is unfathomable that when the Jail doctor on duty visited at the midnight, he did not see the multiple injuries on Ankit.”
“This case also calls for immediate remedial actions by the State and Director General, Prison so that unscrupulous officers at the Jail do not take advantage of knowledge of the non-working of the CCTVs so that they can get away by doing any illegal act/offences.”
“Whilst I accept that the Indian court has apparently made some preliminary findings in the Geeta case, it is important to note that the consequence of the judgment was to set up an enquiry. An enquiry which has led to the prosecution of those involved in the violence and extortion of Mr Geeta including the Deputy Superintendent involved.”
“The broad thrust of the petitioners’ argument is that jail officials were extorting amounts on a monthly basis, for allegedly providing security. On the other hand, the respondents broadly urged that the petitioners were using the jail officials in the passing of documents and for their own extortion or other illegal/illicit business purposes. It appears that the respondents have taken action against several jail officials and personnel as a consequence of these proceedings. Whether this bears out the petitioners’ allegations or independently substantiates the respondents’ allegations that they were using the jail as a hub for their questionable activities is not a matter for this Court to investigate; it is best left for the concerned authorities to do so.”
“He is habituated to filing false and frivolous applications in different courts from Trial court to Supreme Court making wild and baseless allegations of extortions and torture against all prison officials, Senior Government Officers, Ministers, Judges etc. In every case of complaint received from the courts qua jail officials, the Prison Department always conducts high level enquiry and files the factual reports in the Courts. The Hon’ble courts, now, have understood the modus operandi of this prisoner and his arm-twisting tactics and so, of late, have started closing his complaints after receipt of factual reports from the jails. In so many allegations of extortion, only one complaint of Sukesh was found correct and appropriate disciplinary and criminal action has been taken against the guilty prison staff, those were found complacent with prisoner.”
“VI. In Tihar prison he was in solitary confinement for more than a month, being continuously monitored and subjected to cell and body searches several times a day. He had a mattress and a blanket and the light in the cell was kept on day and night. He was not permitted to leave the cell. He lost more than 7kg and developed kidney stones because of the lack of access to water. VII. On19 March 2019 , a judge ordered his immediate end to his segregation but it is said that he remained in de facto solitary confinement, having to rely on other inmates to purchase food for him by giving them his card through the bars to his cell.”
“Even though sporadic incidents of fights/brawls do occur in Delhi prisons, it cannot be said that it is comparatively more unsafe than any other prison in the world. In the year 2023, two incidents of murders took place in two different jails – one of accused Prince Tewatia in Jail No.3 and the other of accused Sunil @ Tillu Tajpuria in jail no.8. Both the murders were result of gang wars.”
“Presumption as to culpable mental state.–(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. –In this sub-section, ‘culpable mental state’ includes intention, motive or knowledge of a fact or belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.”
“Under Section 54 of BMA, the existence of mental state will be presumed by the court only after the facts regarding undisclosed income & assets are proved beyond reasonable doubt by the prosecution.”
“There are situations where it is clearly sensible and reasonable that deviations should be allowed from the strict applications of the principle that the prosecution must prove the defendant’s guilt beyond reasonable doubt.”
“Some exceptions will be justifiable, others will not. Whether they are justifiable will in the end depend upon whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard and whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which article 11(1)[ Article 11(1) of the Hong Kong Bill of Rights Ordinance 1991 provided, in similar terms toarticle 6 ECHR : “In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” (see AG of Hong Kong v Lee Kwong-Kut at 965F-G). ] enshrines. The less significant the departure from normal principle, the simpler it will be to justify an exception. If the prosecution retains responsibility for proving the essential ingredients of the offence, the less likely it is that an exception will be regarded as unacceptable. In deciding what are the essential ingredients, the language of the relevant provision will be important. However what will be decisive will be the substance and reality of the language creating the offence rather than its form. If the exception requires certain matters to be presumed until the contrary is shown, then it will be difficult to justify that presumption unless, as was pointed out by the United States Supreme Court in Leary v United States (1969) 23 L.Ed. 2d 57, 82, ‘it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend’.” (Emphasis added.)
“But while it might seem reasonable for such considerations to let the accused bear the burden of proof I do not consider that such a result can be justified when one weighs the considerations of what is, or at least may be, at stake for the accused and the interests of the public. As I have already noted (paragraph 150), in order to be acceptable a presumption must fall within limits which ‘take into account the importance of what is at stake and maintain the rights of the defence’: Salabiaku v France, at p 33, para 28. If the matter is approached as one of generality one can make no useful distinction here between the various classes of drugs which may be involved. In the most serious cases the accused may face a sentence of life imprisonment. A strict responsibility may be acceptable in the case of statutory offences which are concerned to regulate the conduct of some particular activity in the public interest. The requirement to have a licence in order to carry on certain kinds of activity is an obvious example. … These kinds of cases may properly be seen as not truly criminal. Many may be relatively trivial and only involve a monetary penalty. … While it may be that offences undersection 5 of the Misuse of Drugs Act 1971 may be described as regulatory they can lead to the most serious of consequences for the accused. Of course trafficking in controlled drugs is a notorious social evil, but if any error is to be made in the weighing of the scales of justice it should be to the effect that the guilty should go free rather than that an innocent person should be wrongly convicted. By imposing a persuasive burden on the accused it would be possible for an accused person to be convicted where the jury believed he might well be innocent but have not been persuaded that he probably did not know the nature of what he possessed. The jury may have a reasonable doubt as to his guilt in respect of his knowledge of the nature of what he possessed but still be required to convict. Looking to the potentially serious consequences of a conviction at least in respect of class A drugs it does not seem to me that such a burden is acceptable.” (Emphasis added.)
“254. In 2020 India had the sixth highest number of prisoners detained on remand out of 218 countries, 82% of its prison population. 255. Of the 82% on remand, by 2020, 4,125 had been detained for more than 12 months, 1,889 had been detained for more than two years, and 580 had been detained, without trial, for more than 4 years. 256. The CHRI recorded that 4.5% of prisoners on remand in India had been in detention for 3-5 years, with 1.9% for more than five years. The CHRI noted that this was the highest proportion since 2010. 257. Justice Verma’s evidence was that in Delhi, there are 14,080 men awaiting trial, 590 of whom have been waiting more than 5 years with 1,472 inmates having been detained for 2-5 years without trial. 258. Justice Verma in his second report reports the statistics from the National Judicial Data Grid that 25% of criminal cases in the Indian District Courts have been pending for more than 5 years and overall more than 31 million criminal cases are pending in the District Courts. In the High Courts, 1,657,655 criminal cases are pending and more than 40% have been pending for more than five years. 259. In 2020, the Supreme Court noted that over 14,000 criminal cases have been pending in the High Court for more than 30 years with 33,045 pending for between 20-30 years. The figure rises to 235,914 criminal appeals pending determination between 10-20 years.”
“However, as with art.6, a high threshold must apply. A flagrant breach of art.5 would occur only if, for example, the receiving state arbitrarily detained an applicant for many years without any intention of bringing him or her to trial. A flagrant breach of art.5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving state, having previously been convicted after a flagrantly unfair trial.” (Emphasis added.)
“43. … that judge, having heard the accused himself, must examine all the facts arguing for and against the existence of a genuine requirement of public interest justifying, with due regard to the presumption of innocence, a departure from the rule of respect for the accused’s liberty. Those facts must be set out in the decision on the application for release. For example, the danger of an accused’s absconding cannot be gauged solely on the basis of the severity of the sentence risked. As far as the danger of re-offending is concerned, a reference to a person’s antecedents cannot suffice to justify refusing release. 44. Thirdly, the judge must have the power to order an accused’s release.”
“Offences to be cognizable and non-bailable. – (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of (174), no person accused of an offence under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence whilst on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs: … (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation. – For the removal of doubts, it is clarified that the expression ‘Offences to be cognizable and non-bailable’ shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1973), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.” (Emphasis added.)
“3. The Government of India, on the basis of report from Tihar Prison Authorities, New Delhi, assures that Mr Sanjay Bhandari will be held at Ward No.4, Central Jail No.3, Tihar Jail Complex, in New Delhi, if extradited. The detailed legal and factual framework to show how the terms of assurance would be delivered in practice is enclosed with this letter of assurance [Annexure-I]. 4. If Mr. Sanjay Bhandari is extradited to India and his case is acceded to for lodging in the Tihar Jail Complex in New Delhi by the Competent Authority/Government, the Government of India, on the basis of information received from the Government of NCT of Delhi and the Director General of Prisons, Delhi State, solemnly assures that all such facilities available in the Tihar Jail Complex in New Delhi shall be provided to him without any discrimination, as per the lodging policy in vogue. This assurance is a sovereign assurance by the Government of India in consultation with the State Government concerned and the Tihar Prison Authorities, New Delhi. Annexure-I The detailed legal and factual framework to show how the terms of assurances would be delivered in practice. a. Information regarding basic amenities provided to economic offender/extradited person The extradited person will be provided all basic amenities as per Delhi Prison Rules, 2018. The place of lodgment such as cells/barracks has proper ventilation and hygienic conditions. The clean and potable drinking water is available to all prisoners through RO plants installed in each jail. Additionally, access to natural light, clean sanitary facilities, outdoor exercises, sports & recreational activities, security surveillance through CCTV monitoring and other mechanisms, medical care and liberty to religious practice in a violence free environment will be duly ensured. The inmates are provided nutritious food (having requisite calorie for a human being) as per menu decided by a Committee of officers consisting Dietician and doctor and other prison officers. b. Information regarding prison visits, including detainee’s family. Every prisoner is allowed reasonable facilities for seeing or communicating with, his family members, relatives, friends and legal advisers twice in a week. The prison inmates is afforded opportunity as prescribed in the rules, to have reasonable contract including visits, telephone contact, electronic communication contact, interviews through videoconferencing and correspondence with the family inside the prison. The Inmate Phone call systems are functioning in all the jails so that a prisoner may communicate with his family members through telephone. The telephone facilities will be available to all the inmates. During the Covid period the family members/advocates are allowed interview through video conferencing as per rules. c. Information regarding medical facilities available within jail campus to handle medical emergency and systems put in place for ensuring supply of medicines being taken by inmate for ailments like diabetes, hypertension etc. … d. Information regarding the measures that have been taken and are in place to deal with situation that has arisen due to COVID-19 pandemic within the prison and also provide the figures as to the current rate of COVID-19 with the prison. … e. Information regarding mechanisms through which the detainee can make any complaints about the conditions of his detention and how any such complaints are administered. It will be worthwhile to mention that there is an exclusive Grievance Redressal Mechanism working in Delhi Prisons which plays a very important role in maintaining and establishing the human rights in prison. Each and every complaint/grievance of the inmate is taken on record and every best effort is exercised to resolve such issue. It is then informed to the complainant / inmate. • The prisons in Delhi are being regularly visited by Inspecting Judges of rank of Addl. Session Judges and hear the problems of prisoners and issue directions to the jail authorities for necessary resolution/redressal of the grievance. A report on his visit is being forwarded by him to the Hon’ble High Court of Delhi and the Government of NCT of Delhi. The Prison Department also submits a compliance report thereof. • Apart from the inspection by Jail visiting Judges there are also notified NGO’s, NHRC officials, Official Visitors/Non Official Visitors by the Government of NCT of Delhi etc. In addition, complaint boxes in the name of visiting Additional Sessions Judge and Superintendent jail have been put up in each ward of the jail. These are opened by the visiting Additional Sessions Judges and Jail Superintendent on their visit to wards. The Petition Box in the name of Director General (Prisons) is being rotated in each jail, on daily basis on which the prisoners can put in their grievances. Senior officers regularly and routinely visit the jails to interact with the prisoners and to hear their problems. f. Information regarding the prison in which the fugitive/economic offender are usually kept and the number of inmates in that prison at present. The fugitives are generally lodged in Central Jail No.3, Tihar where the Central Jail Hospital is also located. The total number of inmates lodged in Central Jail No.3 is 2121 as on 28.05.2021. g. Information regarding the barrack/cell in which Sh. Sanjay Bhandari will be kept, if extradited to India (both during pre-trial and post-trial if convicted). Also information regarding the capacity of such barrack/cell along with number of inmates in that barrack/cell at present. Mr Sanjay Bhandari, if extradited to India, will be kept in the Cells of the Ward No. 4 at Central Jail No.3, Tihar. Normally, three inmates can be lodged in a single cell of ward No.4, Tihar. However, in the case of Sh. Sanjay Bhandari, he may be kept alone in the cell.” (Emphasis added.)
“The Government of India, on the basis of report received from the Government of National Capital Territory of Delhi / Tihar Prison Authorities, New Delhi, assures as follows:- I. Dimension of the cell- In Delhi Prisons, sufficient personal living space per inmate is provided in each Barrack/Cell of jail. Measurement of Cell is approximately 21x8x11 feet in dimension i.e. around 15.6 square meters for four prisoners, thus minimum living space requirement of 3 square meters is available to each prisoner. Additionally, the cells/barracks have access to natural light, ventilation, clean sanitary facility, outdoor exercises, sports and recreation activities are duly ensured in Delhi Prisons. II. Sanjay Bhandari will be kept alone in the cell meaning thereby he would have space of 15.6 square meters to himself. III. He will be provided well-lit and ventilated cell and access to toilet inside his cell. The cell will be well maintained and clean. Daily cleaning will be carried out within the cells and in the external areas of the Cells/Barrack. Hygiene products and cleaning materials are provided/made available to inmates at Govt. cost. The pest control teams are regularly visiting and fumigate the jail to keep them free from mosquitoes. Cell is provided with a flush toilet and a wash basin with a constant supply of water. IV. He will be provided with proper bedding by the jail authority and also allowed to take their beddings/bed sheets from their visitors through physical mulakat (As per jail rules). The facility of washing plant is available in jail to ensure proper cleanliness and hygiene in the cells. V. He will have access to safe, clean and potable drinking water as available to all prisoners through RO (Reverse Osmosis) plant installed in jail. The mineral water bottles are also available through jail canteen, he may purchase the same. Considering the safety and security of the prisoners, a mobile canteen is also rotated in the wards (in the morning as well as in the evening) for the sale of biscuits, wafers, water bottles, patties etc. VI. He will have access to fresh air and open space for exercise. He can move out of cell as soon as after day break, as possible. He will have enough space in front of his cell for walking purpose to maintain his health. The prisoners are locked-up for the night at the time of sun set (usually at dusk time). During the course of the day the prisoners are allowed to do prayer, yoga, meditation, physical exercise, to brisk walking, to attend medical OPD, to attend educational classes and vocational courses, sports etc. The prisoners get sufficient time for their activities under proper security. VII. The prison staff for his security will be available round the clock.The proposed Ward is guarded 24x7 by guarding staff and has proper CCTV surveillance for monitoring by senior officers of jail. The ward is under supervision of Assistant Superintendent of Prisons who takes rounds of the ward and ensures security and safety of all inmates of the ward. VIII. He will be provided medical facility as need based in Jail OPD, Central Jail Hospital and outside referral hospitals as per referral by the concerned doctors.He may be referred to Super Specialty Hospital if required. The Central Jail Hospital is located in same jail with sufficient numbers of doctors round the clock, physiotherapy centre, and mental health unit. The following medical facilities are available in Delhi Prisons: Inmates (both under trial and convicted) are provided round the clock medical attention in Delhi Jails for which there is a 120 bedded hospital, known as Primary Health Care Unit in Central Jail No.3, Tihar, New Delhi and dispensaries equipped with MI Rooms in all other jails. The first referred hospital for Jails in Tihar Prison Complex is DDU Hospital, Hari Nagar. The main features of health facilities in Delhi prisons are as follows: … IX. He will be provided other facilities such as library, dry canteen, recreational facilities for his overall wellbeing. Four meals will be provided to him as provided to other inmates per day namely (i) Breakfast (ii) Lunch and (iii) evening tea and biscuits (iv) dinner. The meals provided are having sufficient and adequate nutritional contents. The meals are daily examined by the Duty Doctor as well as by the Duty officer of the Jail to check the quality of the food. The canteen facility will be also available to him in jail from where the inmate can purchase daily use item as per their need. X. The prison staff is vaccinated against Covid-19. If the SB is not vaccinated then he will be vaccinated … XI. Pressure Swing Adsorption (PSA) oxygen production plant: … XII. He will be provided Inmate telephone call facility to communicate with their family through Inmate Calling System as per rules. XIII. There is provision of Video conferencing facility for court matters and Mulaqats (interview) of prisoners with family and advocates. He will be provided the same wherever required. … Information with regard to reformation activity in Delhi Prisons is as under: 1. Yoga, Meditation & Spiritual Courses Yoga, meditation and spiritual activities form an important component of reformation and rehabilitation policy of Delhi Prisons which bring qualitative change in the life of prisoners. A number of Non-Governmental organizations are helping the Jail administration in carrying out various activities and augment religious preaching to inmates. Some of these are Art of Living, Raj Yog, Sahaj Yoga and Satsang. 2. Recreational activities Recreational activities are carried out routinely in all the jails to channelize the energy of prisoners in a positive direction. Television set is provided in all the wards which are fitted with cable network. The TV facility is provided in cells also. The facility of newspapers, magazines, library etc. is provided. FM Radio is provided in jails and one inmate acts as Radio Jockey and music is played on requests also. 3. Educational Facilities Educational activities are an integral part of the daily routine of the prisons in Delhi. Study Centers of the Indira Gandhi National Open University (IGNOU), New Delhi and National Institute of Open Schooling (NIOS), Delhi are established at Delhi prisons. The facility is available free of cost to all willing inmates. Apart from it the basic elementary education is also provided through Padho Aur Padhao scheme. 4. Computer Centers in Jail … 5. Scheme for the Welfare of Children of Incarcerated Parents … 6. Music Rooms in Jails … 7. Art Gallery/Fine Arts … 8. Grievance Redressal Mechanism The Prison Administration fully ensures that there is no violation of rights of prisoners. In case of complaints of prisoners, Grievance Redressal Committees are constituted in all Jails to redress their complaints/grievances partially. This Committee is chaired by Superintendent Jail and includes other officers of the Prisons. The inmate can drop their complaints in complaint boxes of jail Superintendents, Jail Visiting Judges and mobile complaint box of DG Prisons. These complaints are seen by the officers themselves and appropriate decision is taken to dispose of their complaints/grievance. Further the inmate can also approach to the jail visiting judge/trial courts for their unresolved complaints. Usually considering the substance of the complaint, an independent inquiry is done by the Senior Officers of the Jail and appropriate action is taken accordingly. 9. CCTV Cameras Surveillance for better monitoring CCTV cameras have been installed in all jails of Delhi Prisons for better surveillance and better prison management. Presently, total 7549 CCTV cameras are installed in all Jails of Delhi Prisons i.e. Tihar Complex, Rohini and Mandoli Jail Complex. The recording of these cameras is preserved for 1 month. These CCTV cameras are found very effective since most of the happenings in the Jails are recorded and the truth is known without any delay. 10. Body Worn Camera used by Prison Staff Delhi Prison Department is presently having 525 Body Worn Cameras which are used for various purposes like at the time of conducting search, dealing with unruly inmates etc. These cameras are useful for the purpose of Vigilance also. 11. Security gadgets used for maintaining security management
“3. In view of the facts of this case in the extradition matter and specific assurances to this effect sought by the District Judge Snow, the Government of India, on the basis of assurance provided by the investigation agency, assures as follows:- ‘If Mr. Sanjay Bhandari is refused bail, he will not be removed from prison unless: • He is granted bail. • Requires medical treatment in a hospital. • For appearances before a court.’” • He is granted bail. • Requires medical treatment in a hospital. • For appearances before a court.’” (4). The September 2023 Assurance On7 September 2023 , the Government of India provided a further assurance to the United Kingdom following the appellant’s application for permission to appeal and to adduce fresh evidence: “Accordingly, the Government of India, on the basis of confirmation provided by the Government of National Capital Territory of Delhi/Delhi Prisons Department, hereby confirm that the previous assurances provided by the Government of India in the year 2022 will still remain in force. The Government of India, also confirm that the concerns of the defendant regarding his safety, arising from the fresh news reports attached with UK Request for Further Information [RFFI], can be met by the assurances already provided.”