In an important judgment, the Delhi High Court has held that the Extradition Act 1962 is not a penal statue, therefore issuance of a Notified Order making the provisions applicable of the Act to the foreign country can be given retrospective effect.
The Divisional Bench of the Delhi High Court delivered the said reasoning in the matter of Lennox James Ellis v. Union of India [W.P (CRL) No. 3432/2017], on 08.01.2019.
In this case the Petitioner having a British Passport entered India on 15th January 2016 on a tourist visa, valid for six months. On 09th June 2016, while he was about to leave India from Goa, he was arrested on the basis of a Red Corner Notice issued by the Interpol on the request of the Government of the Republic of Philippines. The Petitioner was remanded to judicial custody on 28.06.2016. The MEA, moved a provisional arrest application against the petitioner under the Extradition Act 1962 (referred as the Act) before the ACMM Patiala House Courts, based on which, the petitioner was taken into judicial custody vide order dated 11th July 2016.
MEA received a request for extradition of the petitioner from the Republic of Philippines. The extradition treaty between India and Philippines was signed at Manila on 12th March, 2004 based on which the Central Government issued Notified Order under the Act based on which the provisions of the Act were made applicable to the Republic of Philippines retrospectively, from the date when the treaty was entered into force between the two countries.
The main contention of the petitioner in this was that the Act is a penal statute and, as such, cannot be given retrospective effect.
Rejecting the petitioner submission, the Hon’ble Court said that the Act is a procedural statute, and not a penal statute and thus the Central Government is not per se barred from giving retrospective effect to the Notified Order on that count. The scheme of the Act shows that the Act primarily provides for the procedure to be followed while dealing with an extradition request received from a Foreign State in respect of a fugitive criminal.
Article 21 of the Extradition Treaty between Republic of India and Republic of Philippines provides that the Treaty shall enter into force on the date of the exchange of instrument of ratification. In the present case, the Notified Order dated 23.08.2016 is an instance of conditional legislation and not delegated legislation which can be given retrospective effect and makes the provisions of the Act applicable to the Republic of Philippines from the date of entry into force.
The Court also explained that the requirement of laying the Notified Order before the two houses of Parliament is an act of simple laying, and not a pre-requisite requirement it is a requirement subsequent to the issuance of such a Notified Order. Also, it does not empower the Parliament to approve, disapprove the Notified Order issued under the Act nor does it provide for any consequence for failure to comply with the requirement to lay the Notified Order before the Parliament.