Sanjay Bhandari v Government of India

Hearing dates: 10, 11 & 12 December 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 28 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lord Justice Holroyde and

Introduction

The Government of India (‘the respondent’) seeks the extradition of Mr Bhandari (‘the appellant’) to India pursuant to two extradition requests. The first request was issued on 15 April 2020 and certified by the Secretary of State for the Home Department (‘the Secretary of State’) on 16 June 2020 (‘Request 1’). It concerns an allegation of money laundering, contrary to s.3 of the Prevention of Money Laundering Act 2002 (‘the PMLA’). The second request was issued on 2 June 2021 and certified by the Secretary of State on 18 June 2021 (‘Request 2’). It concerns an allegation of wilfully attempting to evade a tax, penalty or interest chargeable or imposable under the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act 2015 (‘the BMA’), contrary to s.51 of that Act. Both the PMLA and the BMA are statutes enacted and in force in India.

The extradition hearing before District Judge (MC) Michael Snow (‘the District Judge’) took place over eight days on 3–4 and 7–9 March, 29 September and 3–4 October 2022. On 7 November 2022, the District Judge handed down judgment, whereby he sent the appellant's case to the Secretary of State under s.87 of the Extradition Act 2003 (‘the 2003 Act’). On 12 January 2023, the Secretary of State ordered the appellant's extradition to India pursuant to s.93 of the 2003 Act.

This is an appeal against the District Judge's judgment, brought with leave pursuant to s.103 of the 2003 Act, on the grounds that the District Judge erred in concluding that:

i) the offences in both requests are extradition offences pursuant to s.78(4)(b) of the 2003 Act;

ii) there is a prima facie case for each offence in both requests pursuant to s.84 of the 2003 Act;

iii) extradition is compatible with the appellant's rights under article 3 of the European Convention on Human Rights (‘ECHR’), on the basis of the assurances given by the respondent in respect of (a) detention in Tihar prison and (b) treatment by the police or other investigative bodies;

iv) extradition is compatible with the appellant's rights under article 6 of the ECHR, notwithstanding the terms of s.54 of the BMA and s.24 of the PMLA in respect of burden and standard of proof in the criminal trials;

v) delays in the criminal justice system in India are not such as to render the appellant's extradition incompatible with article 5 of the ECHR; and

vi) the appellant does not face a statutory prohibition on the grant of bail such as to render his extradition pursuant to Request 1 incompatible with article 5 of the ECHR.

This is the judgment of the court. It has been written by Steyn J, with whom Holroyde LJ agrees. The parties helpfully agreed a list of issues which we have set out below, when addressing each ground. Mr Edward Fitzgerald KC and Mr Ben Keith, leading Counsel for the appellant and respondent respectively, addressed us orally on grounds 3–6; and Mr James Stansfeld and Mr Alex Du Sautoy, junior Counsel for the appellant and respondent respectively, made oral submissions on grounds 1 and 2. We are grateful to all Counsel for their excellent written and oral submissions.

The Requests

The offence of money laundering (alleged in Request 1) is predicated on commission of the offence of tax evasion contrary to s.51 of the BMA (alleged in Request 2). Accordingly, as the District Judge did, and the parties have done, we address Request 2 first.

The alleged offence under s.51 of the BMA (Request 2: tax evasion)

The conduct underlying the allegation of tax evasion is primarily summarised for the respondent in the affidavit of Vivek Jumar Gupta, Additional Director of Income Tax, Income Tax Department, dated 13 April 2021 (‘V.J. Gupta’), made in support of Request 2. However, it is also addressed in the affidavit of Mahesh Gupta, Deputy Director, Directorate of Enforcement, dated 25 February 2020 (‘Mahesh Gupta’), made in support of Request 1; and we note the respondent relies on all the evidence it has adduced in respect of both Requests.

The affidavit of V.J. Gupta states that, in addition to the offence under s.51 of the BMA, the appellant is being prosecuted for two other offences pursuant to s.50 of the BMA and s.277 of Income Tax Act 1977. V.J. Gupta states that the prosecution pursuant to s.50 of the BMA “ deals with failure to furnish any information about foreign assets or foreign income in the return of income filed in India” (§7.1); while the s.277 Income Tax Act prosecution “ deals with offences related to making false statements in verification etc.” (§7.2) However, in Further Information from the Income Tax Authorities dated 28 February 2022, the respondent clarified that the current extradition request pertains only to the alleged offence under section 51(1) of the BMA.

V.J Gupta states that a Prosecution Complaint under s.51(1) of the BMA (no. 2121/2019) was filed by the Income Tax Authorities against Mr Bhandari before the Court of Ld. Additional Chief Metropolitan Magistrate, Tis Hazari, New Delhi on 24 December 2018 (‘the Prosecution Complaint’).

The appellant was an Indian resident at the relevant time, as reflected in his income tax returns (V.J. Gupta, §4.1). As an Indian resident, his global income was liable to be taxed in India, and he was required to declare his global income and assets by s.6 of the Income Tax Act 1961 (V.J. Gupta, §4.1; Further Information regarding prima facie case, §V.1). In his income tax returns for the assessment years 2012–13 to 2015–2016, the appellant declared in Schedule FA of ITR-4 that he had “ Nil” foreign assets, and thus, it is alleged, wilfully not disclosing the “ huge foreign assets” he had amassed (V.J Gupta, §4.1; Complaint, §3).

A significant number of undisclosed foreign assets, both moveable and immoveable, are alleged to have been acquired by the appellant from undisclosed foreign income. The assets allegedly obtained by the appellant are identified by V.J. Gupta at paragraph 4.6 of his affidavit as including the following immoveable properties:

i) Flat C-303, Maurya Grandeur, Palm Jumeirah, Dubai, UAE, held in the appellant's name.

ii) Flat 6, Grosvenor Hill Court, Bourdon Street, London, owned by the appellant through a corporation, Shamlon Gros-1 Inc, which had been incorporated under the laws of Panama.

iii) 12 Bryanston Square, London, a property bought by the appellant in December 2009 for approximately £1.9 million, by acquiring 100% shareholding in Vertex Management Holdings Ltd (a BVI-based company), and sold for approximately £1.9 million in June 2010.

iv) Flat 2414, Burj Khalifa, Dubai, held in the appellant's name.

In addition, V.J. Gupta identifies six companies alleged to be owned (in whole or in part) by the appellant, namely, Offset India Solutions FZC, Santech International FZC, Serra Dues Technologies Ltd, Petro Global Technologies FCZ and Santech International LLC (all incorporated in UAE) and Shamlon-Gros-1 (incorporated in Panama). He also identifies 19 undisclosed foreign bank accounts alleged to be held by the appellant or his companies.

From 27 to 30 April 2016, the Income Tax Authorities conducted a search at Mr Bhandari's home. On 27 April 2016, “ when asked about details of his foreign assets during examination on oath u/s 132(4) of the Income-tax Act, the assessee initially specifically denied having any foreign asset” (V.J. Gupta, §4.7 and Assessment Order dated 23.3.20, p.4). The statement dated 27 April 2016 records in manuscript:

“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.”

On 29–30 April 2016, the appellant was confronted with documentary evidence of his ownership of several foreign assets, which he admitted. In particular:

i) The appellant stated that he was a director/manager of Santech International FZC and sole director of Offset India Solutions, companies which were incorporated in the United Arab Emirates in 2007 and 2010, respectively (Assessment Order 23.3.20, pp.5–6).

ii) He said that he is the beneficial owner of Serra Dues Technologies, which was incorporated in the RAK Free Trade Zone, UAE (Assessment Order 23.3.20, p.33).

iii) The appellant said that he had two bank accounts in the Emirates Bank, Dubai: one in the name of Santech International was opened sometime in 2007 and closed before 2013 and the other, in the name of Offset India Solutions, was opened sometime in 2010 and closed in 2014–2015 (Assessment Order 23.3.20, p.28).

iv) In respect of immoveable properties:

a) The appellant said that Shamlan Gros-1 Inc owned Flat 6, Grosvenor Hill Court, Bourdon Street, London, and in 2013 he bought all the shares in that company using funds generated through Dubai-based companies (Assessment Order 23.3.20, p.35).

b) The appellant said that Vertex Management Holdings Ltd held a property at 12 Ellerton House, Bryanston Square, London, W1H 2DQ, and that he...