erbeR ae 8) IN THE HON’BLE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH In Writ Petition No.13635 OF 2014 Between: Dr, K.V.P. RAMACHANDRA RAO .. AND STATE OF ANDHRA PRADESH & ORS.RESPONDENTS ~ COUNTER AFFIDAVIT FILED ON BEHALF OF THE RESPONDENT NO. 1, SPS. Dutta, aged 59 years posted as Assistant Director, National Central Bureau-Interpol, Central Bureau of Investigation, New Delhi, do hereby solemnly affirm and declare as under: - 1.1 submit that in my official capacity as Assistant Director, National Central _Bureat 1 am conversant with the facts and circumstances of the case as borne out from the record and hence I am authorized and competent to affirm the affidavit on behalf of PRAVEEN KUMAR Superintendent of Police Respondent No. 5. |. SPE, HYDERABAD, 1 deny the contents of the Writ Petition, except those h are matters of record and which are admitted hereinafter 3. Before giving a parawise reply to the Writ Petition, 1 crave the leave ‘of this Hon'ble Court, te set out the facts and brief int tion, which are =Mace k eee via ie necessary for the just and proper adjudication of the > case: BRIEF INTRODUCTION 4. It is submitted that India is a member of the International Criminal Police Organisation (INTERPOL), AS Per Article 2 of the INTERPOL Constitution, “its aims are (1) to ensure and promote the widest possible mutual assistance between all criminal _ police authorities within the limits of the laws existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights’ and (2) to establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.” 5. National Central Bureau-India (INTERPOL-New Delhi) which is a part of Central Bureau of Investigation (CBI) acts as an interface between various law enforcement agencies of India and National Central Bureaus of other i et eR countries for mutual cooperation to combat crime and CBI. SPE, HYDERABAD. nen “trace fugitives. National Central Bureau (NCB)-India is not vested with any police powers and, therefore, its Officers do not undertake work. 6. The INTERPOL General Secretariat (IPSG), Lyon, France tion or related which is the Headquarters of INTERPOL, has put in place a system of notices to locate the fugitives. In order to trace a fugitive criminal, who might have left atl3 | his/her country or left a country after committing the offence(s), an INTERPOL Red Notice is got issued ae aeRO through IPSG at Lyon, France based on an arrest warrant issued by the competent judicial authority. The procedure for, issuance of Red Notice is that upon receipt of a request from respective law enforcement agency, the National Central Bureau forwards it to IPSG, Lyén, France on its dedicated INTERPOL Global Communication System available ‘between NCBs of member countries and IPSG which is known as ‘I- 24/7". The IPSG then takes a decision for publication or non-publication of this Red Notice based on criminality of offence and it’s Constitution as well as Rules for Processing of Data (RFD). Typically, a red notice : consists of biographical information, travel document | inform: @ photograph, @ngerprints, criminal history, | and specitic details regarding the charges, along with \ warrant information and assurance of Head of NC3 to the effect that extradition will be sought upon arrest of the K, PRAVEEN KUMAR subject. After issuance, the Red Notice is transmitted | Dy. Superintendent of Police CBI. SPE, HYDERABAD. oyer “1.24/7" tc all member countries who :n tum forward it to their immigration/border control and Law Enforcement authorities. These authorities then locate/detain/identify such individual depending upon Provisions of their domestic laws and inform the requesting country/and authorities concerned for further ne: ssary action, The domestic legal provisions Giffer from country to ind while some countriesaan Moke? nee 3h have accorded legal sanctity to Red Notice, others have not done so. Those member countries which recognize . —_—— the Red Notice, locate and apprehend the subject. Those countries which don't accord legal status, use it to locate the subject. Once the fugitive is located on the basis of a Red Notice, the concerned law enforcement agency is required to send a request for ‘arrest followed by request for extradition of the fugitive duly accompanied by all necessary documents to the concerned country through diplomati © channels or the __———— ; ——_ channels prescribed in the Extradition Act/Treaties. 7. In case the location of the criminal is already known or there is probability of his/her availability in that particular country then a “Diffusion” is sent through IPSG via “I-24/7° to the concerned country(s}. It is pertinent to mention here that whereas the Red Notice is published on the “I-24/7" Network by IPSG after taking a decision for its issuance or non-issuance, the K. PRAVEEN KUMAR Diffusion’ does not involve the ‘decision making’ of IPSG Dy. Superintesident of Police CBI. SPE, HYDE! _and may not necessarily populate the database of IPSG. Nee In this case, any member country can issue a Diffusion directly to a single or a group of member countries where the probability of subject’s availability is very high. The recipient country is provided wich all the details, which would otherwise could have been published in a Red Notice including copy of warrants issued by judicial authorities with the request to ‘locate’ee K: PRAVEEN KUMAR Dy. Superintendent of Police CBI. SPE, HYDERABAD. Nee ae its subject with the view to extradite him Whereas, the very purpose’ of existence of an INTERPOL Red Corner Notice is “to locate a fugitive for the purposes of extradition”, the ‘Diffusion’ can also achieve the same purpose. As mentioned above, in order to track and trace a fugitive criminal, who might have left his/her country, an Interpol Red Notice is got issued through IPSG based on an arrest warrant issued by the competent judicial authority. In India, all Red Notices are downloaded and its copy is forwarded to Bureau of Immigration, Ministry of Home Aifeirs, Government of India. The Bureau of Immigration issues a Look Out Circular (LOC) as per the guidelines of MHA for each of the Red Notice forwarded GNC nae P to it by NCB-India and each LOC is given another Specific number ir its database. After this issuance of LOC, the same is forwarded to all the immigration ints (airports)/border management authorities with @ view to locate the wanted subject who may-seize ‘travel documents/ detain /identify such individual and inform the NCB-India, who in turn inform the Tequesting countrv/and authorities — concerned for further necessa action’ NCB-India also forwards the copy of the Red Notice to State Police Concerned for further necessary legal action, The domestic legal Provisions with regard to INTERPOL Red Notice differ from country to country and while somie countries haveaccorded legal sanctity to Red Notice, others do not do so. 9. Red Notices are published ‘at the request of NCB or an : ——_ International Entity with powers of investigation and Prosecution in criminal matters. Red Notices are published by IPSG to seek the arrest or provisional arrest of wanted Persons with a view to extradition. The purpose of Red Notice is to seek the location of a wanted person and his/her eee pero anetis/t detention, arrest or restriction of moment for the purpose of extradition, surrender or similar lawful a: (bv) of RFD of INTERPOL states that “Minimum Judicial n. Article 83 Data required for the publication of Red Notice should inter- alia include :-a reference to a valid arrest warrant or judicial decision having the same effect {whenever possible, and subject to national law or the rules governing the operation of the international entity, the requesting National Central Bureau or internationai entity shall provide 2 copy of the arrest warrant or judicial decision).” Nk vitae? awh 10.Besides, as per Article 84 of RFD, an assurance by Head of NCB has to be provided by the requesting National Central J PRAVEEN KUMAR aurcau or international enti. The article states that “he OBI. SPE, HYDERABAD... red notice request has beeri coordinated with the relevant authorities responsible for extradition, and assurances have Nw, been given that extradition will be sought upon rest of the person, in conformity with national laws and/or the applicable bilateral and multilateral treaties”. LLArticle 12, of Extradition treaty between Indie-USA clearly provides for transmission of urgent requests for provisional arrests through the facilities of INTERPOL.As per SectionAtorsat ae a S(3\(c) of the Extradition Act, the Central government is empowered to modify the Act. The section stipulates that “Where the notified order relates to a treaty State, the Central Government may, by the same or any subsequent notified order, render the application of this Act subject to such modifications, exceptions, conditions and qualifications 8 may be deemed expedient for implementing the treaty with that State”..In the present case the Red Corner Notice contains all necessary details as contemplated in Article a ae ey 12) of the Indo-USA Extradition weaty like the Photographs, details of identification, likely place of visit, a brief statement of the facts of the case(s), a statement of existence of warrant of arrest, action to be taken if traced ———_ a request to treat the Red Notice as a formal A rat the Red Notice alongwith request for provisional arrest. The Country publishing the Notice has given assurances that extradition will be sought upon arrest of the person, in conformity with its National Laws and/or the applicable bilateral and multilateral treaties, <. PRAVEEN KUMAR Thus, the INTERPOL Red Notice is a tool devised by the 'y. Superintendent of Police ‘BI. SPE, HYDERABAD. IPSC, France to locate a fugitive with the objective to N- bring its subject before the law enforcement agency concémed/the/Sédinpetent Courls of Law of they Cet gee © requesting Country through due process of Law.a BRIEF FACTS OF THE CASE: BRIEF FACTS OF THE CASE: ‘A. Information has been received that from January. 2006 yo, to June 2013, K.V.P. RAMACHANDRA RAO and others were members of a criminal enterprise to establish @ we anna! beach sand mining project in the State of Andhra Pradesh, India, for the purpose of mining minerals, including ilmenite, which can be processed into titanium-based products such as titanium sponge. ‘The leader of the criminal enterprise caused an international conglomerate of companies to participate in the project and intended to sell the titanium sponge derived from the project to various third parties, including @ US. company in Ilinois, RAMACHANDRA RAO served the criminal enterprise by abusing his position as an official Aiden of the State of Andhra Pradésh, India, and close advisor NSE 4 the Chief Minister of that State to solicit bribes for K. PRAVEEN KUMAR Dy. Superintendent of Police Indian public officials, including himself, in return for CBI. SPE, HYDERABAD. approval of licenses for the project, and agreeing to accept bribe money, including bribe money for his own benefit in return for the approval of licenses for the NUL project. a the B. The leader of the criminal enterprise authorizes payment of at east $18.5 niin in bribes to ofeisi# both the State Government of Andhra Pradesh and the Central Government of India to secure the approval of licenses for the project. The members of the criminalMectct ho K. PRAVEEN KUMAR Dy. Superintendent of Police CBI. SPE, HYDERABAD. a4 enterprise worked together over several years to, among other things, obtain the necessary licenses for the Project through the bribery of Indian public officials. Certain licenses had to be obtained with the approval of both the State Government of Andhra Pradesh and the Central Government of India for the mining project to begin. U.S. financial institutions were used to engage in the international transmission of millions of USD for the purpose of bribing Indian public officials in connection with obtaining approval of the necessary licenses for the Project, a project which was forecast to generate more than $500 million USD in revenues per year, including Fevenues generated from the sale of titanium products to the U.S company. Transportation and communication ‘acilities within the U.S. were used to coordinate, plan, facilitate and promote the bribery of Indian public officials. A member of the criminal enterprise traveled on two occasions between Chicago, eA thier emma Mlinois, and Greensboro, North Carolina, in order to conduct money laundering transactions to further the interests of the enterprise's illegal activities That the above fugitive wanted for prosecution on the charges 1) Racketeering Conspiracy 2) Money Laundering Conspiracy 3) Interstate Travel in Aid of Racketeering Activity (2 counts). The Law covering offences are 1) Tit US Code, Section 1962 (a) (2) Title 18, U.S. Codi » Sections 1956 (h} and 2 (3) Title 18,U.S, Code, Section 1952 and 2. The maximum penalty possible for the offences are (1) 20 years imprisonment (2) 20 years imprisonment (3) 5 years imprisonment per count, The arrest warrant or judicial decision having the same effect is No.13 CR 515-6 issued on 21.06.2013 by the United States District Court, Northern District of Illinois in United States. i D. That IPSG has published Red Notice against Dr. i Ramachandra Rao K. V..P., Member of Parliament, Rajya Sabha belonging to Indian National Congress on 11.04.2014 and § others on the request of United States, for the charges of money laundering, fraud against Government, bribery/corruption, Violation of Foreign Corrupt Practices Act (FCPA). One of the accused involved in the above case and Red Notice subject Dmitry Firtash @ Dmytro Firtash, an Ukrainian national has been arrested on 12.03.2014 in Vienna, K. PRAVEEN KUMAR Dy. Superintendent of Police Austria. CBI. SPE, HYDERABAD. Preliminary objections to the writ petition 1) That the cause of action arose in United States of America where the case was registered and on the basis Nitty otarrest warrant No.13 CR 515-6, issued on 21.05.2019 by United States District Court, Northern District of Ilinois in United States, the Red Corner Notice was issued by the INTERPOL Headquarters, Lyon, France. 2) That the Red Corner Notice has been issued by the INTERPOL Headquarters, Lyon, France. If the Red Notice is opened wrongly or unjustifiably caused3) A\ injustice to anyone, the petitioner must have approached the Commission for the Control of INTERPOL's Files (CCF), IPSG, 200, Quai Charles De Gaulle, 6 9006, Lyon, France where such cases are reviewed and the Red Notice(s} are cancelled if found opened wrongly, unwarranted or unjustified. ‘That apart from the above, after arresting the fugitive criminal, the Extradition Proceedings under the Extradition Act, 1962, shall be initiated in the appropriate Extradition Court after the appointment of Extradition Magistrate Under Section 5 of Extradition ‘Act, 1962 and all the opportunities shall be granted to him to defend his case. Further, in accordance with Indian legal system the petitioner may also challenge the decision of the Extradition Court in the higher courts. Iekotaf PARAWISE REPLY - ice Dy. Superintendent of Pel ‘Cal SPE, HYDERABAD. 1. That the averments made at Para No.1 of affidavit are matter of record and need no reply from the answering Respondent. . That the averments of Para No. 2 in affidavit neea no reply. That the averment made at para 3 of affidavit is judicial decision of the Hon’ble Supreme Court which is admitted. The rights and interests are always protected by the courts but the rights and_ interests of the Justic: of this legal decision is notavailable to the es r_in view of the facts anc circumstances of the case. 4. That in connection with the averments made in Para No. 4 of affidavit, it is submitted that although the petitioner is Member of Parliament and was adviser to the Chief Minister of State of Andhra Pradesh but may not be a law abiding citizen as per information mentioned above at para A to D of brief facts of the case. The same are not being repeated for the sake of brevity 5. That with regard to the averments made in Para No.5 of affidavit, it is submitted that the apprehension of the petitioner that one or other political rivals was behind this episode, it is stated that the case has been investigated by Law Enforcement Authorities of USA and being prosecuted by US Department of Justice and the trial is pending before Courts of United States of America. K. PRAVEEN KUMAR, Superintendent of Ga. ‘SPE, HYDERABAD. New fPoliée That the averments made in Para No. 6 of affidavit are not correct. The laws of United States of America are ede ee ccna applicable on Indian citizens who commit offences in Panicinet parca nem ernvao soli their jurisdiction and infringe laws of USA. ~~ . That in reply to averments made in Para No. 7 of x affidavit, it is submitted that correct substances of allegations are as mentioned above at para A to D of brief facts of the case. 8. That with regard to the averments made in Para No. 8 of affidavit, it is submitted that after arresting the fugitivecriminal, the Extradition Proceedings under the Extradition Act, 1962, shall be initiated in the | appropriate Extradition Court and all the opportunities shall be granted to him by the court to defend his case. | He may take all the pleas mentioned in this para in the Extradition Court. If the offence is not proved i} extraditable office, he may not be extradited. Extradition court is the proper forum to decide the issue of dual criminality and other relevant legal issues. 9. That in reply to the averments made in Para 9 of affidavit, it is submitted the Fundamental Rights and les of natural justice are alweys protected by our i courts and the legality and validity of the notice shall be examined in the Extradi j Court and the justice shall ! Mgketcad a <= 10.That in reply to para 10 of affidavit, it is submitted that K, PRAVEEN KUMAR Dy. Speed on ray no reply is being furnished on the media reports and the CBI. SPE, is action shall be taken in accordance with Legal be done with the petitioner. Provisions of India, Constitution of Indie, Extradition Act, the Code of Criminal Procedure, 1973 and ne Extradition Treaties. As mentioned at para A to D of the brief facts of the case above, he is alleged to be involved in the case and the proceedings against him are ‘Therefore, he must either approach the appropriate, ee Courts of U.S.A. or should face the extradition proceedings in India. In thet | | | yp Extradition Court he shall be provided with all the documents of the case and complete opportunities shall be granted to him to defend his case and all his queries shall be answered, In accordance with the Indian legal system, he may also challenge the decision of Extradition Court in the higher courts. 11.That in reply to the averments made in at para 11 of affidavit, it is submitted that CBI, INTERPOL, New Delhi has not received the Extradition documents of this case therefore queries raised by the petitioner can be answered only on the receipt of such documents from USA which shall be examined by the Goverment of India and later by the Extradition Court. Thereafter complete opportunities shall be given to the petitioner in the Extradition Court to defend his case. Further, in ae accordance with the Indian legal system, he may also K. PRAVEEN KUMAR i i ‘ofPolice challenge the decision of Extradition Court in the higher Dy. Su CBI. SPE, HYDERABAD. courts. 12. That in reply to the averments made in at _para-12 of affidavit, it is submitted that no reply is furnished on the reports of media. The remaining contentions are ate vague. The action in the matter shall be taken strictly in accordance with the law of the land. 13.The averments of the petitioner at para-13 o! affidavit, regarding his status are admitted. Extradition is the formal procedure for requesting the surrender of persons from one territory to another for the following purposes: to be prosecuted; or to be sentenced for an offence for whichOse the person has already been convicted; or to carry out of @ sentence that has already been imposed. Extradition plays an important role in the international battle against crime. pee ee a This is a legal method to prevent people from evading justice. When a person commits a crime in a state and then goes toa different one, the person can be sent back to face charges in the state where the crime was committed. Generally, a country’s power to arrest a fugitive only extends within its borders. If there is no provision for extradition, people can evade justice by moving from one place to another. The process is regulated by treaty and conducted between the federal government of the U.S. and the government of India. 14.That in reply’ to the averments made at para 14 of affidavit, it is submitted that the character of the Red Notice has been mentioned above at para 4 to 12 of brief hbonka? introduction. ‘Therefore, the contentions are not sealer admitted and it is also not admitted that the Red Notice K. PRAVEEN KUMAR Dy. Superintendent of Police 18 only for the guidance of concerned person. CBI. SPE, HYDERABAD. 1S.That in reply to the averments made at para 15 of affidavit, it is submitted that the INTERPOL notice infringes the fundamental rights and violates the civil liberties of the petitioner is not correct as sufficient RS ee eee safeguards have been provided under the law to ensure that innocent person do not suffer from publication of Red Notice against him/her. 16.Regarding averments made at para 16 of affidavit, the petitioner has approached Government of India and anNegev a K. PRAVEEN KUMAR rendent of Police Dy. Superint CBI. SPE, HYDERABAD. _ aye es appropriate decision will be taken by the competent authority. 17.That in reply to the averments made at para 17 of affidavit, it is submitted that protection of fundamental rights and the civil liberties are valuable rights of the citizens in India and have always been protected by the Hon'ble Courts zealously. However, such liberties can be abridged under due process of law in case of wrongdoers, The extradition of the petitioner will be decided after giving sufficient opportunities to him by the competent court, the higher courts of our country and the Central Government. Therefore, the apprehensions of injustice by the petitioner are not based on facts. Hence denied. 18.That in reply to the averments made at para 18 of affidavit, it is submitted that the petitioner has sought redressal of his grievances by filing the writ petition in this Hon'ble High Court. In view of the above facts, it is prayed that the writ petition may please be dismissed and the interim order dated 28.4.2014 may kindly be set aside new - DEPONENT ‘VERIFICATION: Verified at New Delhi on this (0'ftay of July, 2014 that the contents of this counter affidavit are true and correct to my knowledge based on official record and no material has been concealed there from, ne Se Be DEPONENT-~ oo gs" No B25, Hyderabad : District. HIGH COURT OF JUDICATURE AT 7 Lefrened HYDERABAD. FOR THE STATE UF ° —. TELANGANA AND THE STATE OF Yo DA coricta pPtowt” ANDHRA PRADESH js be AML bye) — otitis ah RENE MoE. re : {19635 of 2014 i Vabotek a te . bled “ on beholle Y 2erpmdatme-s: P. Keshava Rao (10515) Special Standing Counsel for CBI Counsel for Respondent No. §