Is extradition imminent for Mehul Choksi? What India-Belgium treaty says

While the India-Belgium extradition treaty allows extradition of individuals like Choksi, here’s a look at what the treaty entails and how extradition of the fugitive diamantaire, who has been eluding Indian authorities since early 2018, may become a complicated and long-drawn process.

Flight to Belgium

Choksi, 65, was located in Belgium last year when he went there on the grounds of getting medical treatment. He had been staying in Antigua since 2018 after leaving India. Earlier this year, Belgian authorities confirmed that Choksi had relocated from Antigua and Barbuda to Belgium.

Also read: How Indian agencies hunted down fugitive diamantaire Mehul Choksi

After Interpol revoked its Red Notice (a request to global law enforcement agencies to locate and provisionally arrest a person) against him, Indian agencies, including the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) have been pursuing him via the extradition route since then.

At least two open-ended arrest warrants, issued by a special court in Mumbai in 2018 and 2021, have been shared by the Indian agencies with their Belgian counterparts as part of the extradition request. Formal paperwork is being done following the arrest/detention.

What India-Belgium treaty says?

Under the extradition treaty, signed and ratified between India and Belgium in 2020, the two countries are obligated to extradite individuals accused or convicted of serious crimes, including offences like those Choksi is accused of.

The treaty replaced the one signed between Great Britain and Belgium in 1901 and extended to India in 1958.

Under the new treaty, India and Belgium have agreed to extradite to the other any person found in their territories who is accused or convicted of an offence that is punishable under the laws of both the countries by imprisonment of one year or a punishment of a more severe nature.

The offenses cover crimes including those related to taxation, corruption, and economic fraud.

Also read: Nirav Modi, Vijay Mallya fled India as probe agencies did not arrest them on time: Court

Can non-nationals be extradited to India?

The condition is discretionary in nature, and the Belgian government may decide whether or not to extradite an individual who is no more a national of the country requesting extradition. Therefore, the extradition will get complicated, if Choki, an Antiguan citizen residing in Belgium, pleads that he is not and Indian citizen anymore.

When can extradition be refused?

However, the extradition can be refused under certain conditions:

• If the offense is political. The treaty, however, delineates certain offenses that will not be considered as political offenses. Choksi’s lawyer has called his case a “political” one.
• If the offence for which extradition is requested is a military offence.
• If the extradition has been requested to prosecute or punish a person on the basis of his or her race, sex, religion, nationality, or political opinion.
• If the prosecution of enforcement of sentence has become time-barred.
• If the offence for the crime is capital punishment, Belgium can demand assurances not to carry it out.

Also read: Top 50 wilful defaulters owe banks Rs 87,295 cr; Mehul Choksi No. 1: Govt

How Choksi plans to fight extradition?

Choksi’s lawyer Vijay Agarwal has said that he will appeal against the former’s arrest in Belgium and oppose his extradition to India.

Agarwal said he will challenge the extradition on two grounds: the political nature of the case and concerns over Choksi’s health and treatment in India as he is suffering from blood cancer.

Agarwal said his client was taken into custody by the Belgian Police on Saturday (April 12).

"At the moment, he is in prison and there (Belgium), the procedure is not to apply for bail but file an appeal. During that appeal, request is made that he should not be kept in detention and he should be permitted to defend himself and oppose the extradition request while not being in custody," Agarwal told reporters.

Also read: Fugitive Mehul Choksi moves Delhi HC against Netflix docuseries

He said the "obvious" grounds for the appeal would be that Choksi is "not a flight risk, is extremely sick and undergoing treatment for cancer".

He said their legal defence would be that this is a "political case and the human condition (in Indian prisons) was not good".

Why is Choksi wanted in India?

Choksi, his nephew Nirav Modi, their family members and employees, bank officials, and others were booked by the CBI and the ED in 2018 for perpetrating the alleged loan fraud at the Brady House branch of the Punjab National Bank (PNB) in Mumbai.

It was alleged that Choksi, his firm Gitanjali Gems and others "committed the offence of cheating against PNB in connivance with certain bank officials by fraudulently getting the LOUs (letters of undertaking) issued and got the FLCs (foreign letter of credit) enhanced without following prescribed procedure and caused a wrongful loss to the bank".

The CBI has filed at least two charge sheets against him in this case,e while the ED has filed three such prosecution complaints.

Modi, declared a fugitive economic offender, has been lodged in a London jail since he was held by the authorities there in 2019 on the basis of a legal request made by the ED and the CBI in this case. He is contesting extradition to India.

The scam

According to the investigating agencies, officials at PNB's Brady House branch in Mumbai issued 165 LoUs and 58 FLCs during March-April 2017, against which 311 bills were discounted.

These LoUs and FLCs were allegedly issued to Choksi's firms without any sanctioned limit or cash margin and without making entries in PNB's central banking system to evade any scrutiny in case of a default.

Also read: ED brings back ₹1,350cr worth jewels of Nirav Modi, Mehul Choksi

LoUs are a guarantee given by a bank on behalf of its client to a foreign bank. If the client does not repay the foreign bank, the liability falls on the guarantor bank.

Based on these LoUs by PNB, money was lent by SBI, Mauritius; Allahabad Bank, Hong Kong; Axis Bank, Hong Kong; Bank of India, Antwerp; Canara Bank, Manama; and State Bank of India, Frankfurt.

"Since the accused companies did not repay the amount availed against the said fraudulent LoUs and FLCs, PNB made the payment of Rs 6,344.97 crore (USD 965.18 million), including the overdue interest, to the overseas banks, which had advanced buyer's credit and discounted the bills against the fraudulent LoUs and FLCs issued by the PNB," the CBI's supplementary charge sheet in the PNB bank fraud case alleged.

The ED has attached or seized assets worth Rs 2,565.90 crore in the case against Choksi, and the court has allowed "monetisation" of all these properties.