Rajesh Kumar Gupta v. Union of India

15:31 automatically. Originating Agency must keep reviewing the LOCs opened at its behest on quarterly and annual basis and submit the proposals to delete the LOC, if any, immediately after such review. The BoI should contact the LOC Originators through normal channels as well as through the online portal. In all cases where the person against whom LOC has been opened is no longer wanted by the Originating Agency or by Competent Court, the LOC deletion request must be conveyed to BoI immediately so that liberty of the individual is not jeopardized.”

12. Whenever such LOCs are issued, the same ought to be in terms of the said Office Memorandum which is now a comprehensive memorandum forming consolidated guidelines for issuance of LOCs.

13. The issuance of LOC at the request of INTERPOL and similar agencies traces its origin to the Constitution of the International Criminal Police Organization-INTERPOL, adopted by the General Assembly of member states of ICPO-INTERPOL in 1956. The said Constitution contemplates under Articles 31 & 32, establishment of National Central Bureaus (NCBs) by each member state for liaising between the various law enforcement agencies in the said member country and NCBs of other member states. The said Constitution aims to ensure and promote the widest possible mutual assistance between all criminal police authorities in the spirit of ‘Universal Declaration of Human Rights’. It also contemplates establishment of institutions to prevent and suppress ordinary law crimes.

14. The Supreme Court has dealt with various INTERPOL notices and their binding nature in Bhavesh Jayanti Lakhani v. State of Maharashtra and Ors., (2009) 9 SCC 551, whereby the Supreme Court has recognized the 15:31 manner in which the system of INTERPOL vis-à-vis the NCBs functions. The Supreme Court has also considered the various kinds of notices that are issued by the General Secretariat of INTERPOL seeking information or co-operation from member countries, including the Red Corner Notice which is issued to seek the location and arrest of a person wanted by a legal jurisdiction or an international tribunal with a view to his/her extradition. The relevant portion of the said judgment is set out below: “Interpol notices

58. The organisational system of issuing international notices forms the backbone of its functioning. The Member countries in terms of notices share critical crime related information. They concern individuals wanted for serious crimes, missing persons, unidentified bodies, etc. Such notices contain comprehensive identity particulars of the individuals concerned including the physical description, fingerprinting, occupation and all other relevant information including the offence with which the person has been charged, reference to the law under which the charge was made or the conviction was obtained, etc. The notices issued by Interpol are of six types —red notice; yellow notice; blue notice; green notice; black notice and orange notice. It also contemplates Interpol-United Nations special notice. We are concerned herein only with red and yellow notices.

59. A red corner notice is issued to seek the provisional arrest of a wanted person. However, it by itself does not have the effect of warrant of arrest. It is issued for persons, against whom a national or international court has issued a warrant of arrest. It is solely a request of the 15:31 issuing entity to provisionally or finally arrest the wanted person for extradition. A yellow notice, however, is issued for finding a missing person or to identify people who are not capable of identifying themselves. It is an “international missing person notice”. It is issued specially to locate minors. XXX Binding nature of the Interpol notices

63. The notices issued by Interpol are not considered as administrative decisions on individual cases with transnational effect. They are not construed as an “international administrative act”. They lack a character of regulation. They do not constitute an international arrest warrant and they are not in any other form binding the individuals concerned legally. They, however, gain de facto with special relevance to the human rights through multiplication of its recipients.

64. In fact, Interpol's “red notices” often function as de facto international arrest warrants and countries issue warrants immediately upon receipt of such a notice. However, they do so with the understanding that a request for extradition with supporting evidence will follow the red notice, without delay. The suspect must then go through the standard extradition process. The bottom line is that “warrants to arrest suspects must have legal authority in the jurisdiction where the suspect is found” and Interpol red notices do not have such authority. They are primarily a means of facilitating communication between police agencies and the success of the Interpol system still depends 15:31 entirely upon voluntary cooperation. They, however, do not entirely lack external effects.

65. A number of States recognise the red notices as an official request for the arrest of a person. However, such a request does not require the action of national police authorities and does not provide a legal basis thereto. The transnationalisation takes place through the membership in the organisation, through the supervision proviso of the General Secretariat and the recognition of the transnational effect of the information.

66. A successful search does not result in Interpol's further operative involvement either. The authorities concerned or the public are supposed to contact the local police office, which then gets in touch with the issuing authority and initiates the necessary steps. Therefore, the Member State usually gives the initiative for a notice, and cooperates with one or several other Member States in order to find and arrest the wanted person. Existing information is just distributed through a special communication channel. Interpol's role is limited to that of a service agency. (See Bettina Schondorf-Haubold, “The Administration of Information in International Administrative Law — The Example of Interpol”, 9 German L.J. 1719.) XXX

96. Extradition of a fugitive criminal from India to any other foreign country, irrespective of the fact as to whether any treaty has been entered into or with that country, is within the exclusive domain of the Central Government. The 15:31 extradition of a person from India to any other foreign country is covered by the Parliament Act, namely, the Act. Keeping in view the Constitution of Interpol vis-à-vis the resolutions adopted by CBI from time to time, although a red corner notice per se does not give status of a warrant of arrest by a competent court, it is merely a request of the issuing authority to keep surveillance on him and provisionally or finally arrest the wanted person for extradition.

97. The provisions of the Act and the treaty are required to be given effect to. Whenever a request is received from Interpol the authority must act on behalf of the Central Government. Interpol provides constitution of NCBs by Member States. All members are required to constitute NCBs which should be an authority within the meaning of the provisions of Interpol for coordination of the functioning within the Member States and/or Interpol in case of any request received. Location of a missing person and or tracing the whereabouts of a fugitive criminal is not an easy task. The authority within the meaning of the words of Interpol must act in cooperation with the State police. For the said purpose it may have to request more than one States. A missing person or a fugitive criminal may move from one State to another. In such a case it is not possible for one State to find out the missing person or fugitive criminal. XXX

100. CBI has different roles to play. When it acts as NCB, being a department of CBI, it acts under a treaty. It acts in terms of the Constitution of Interpol. It acts as a authority of the Central 15:31 Government. By reason of such an act it does not carry out investigation, although it is entitled therefor. It functions as an NCB which is to give effect to the request received from Interpol and/or foreign country. When it does so, indisputably it has to apply its mind. It can take any action only because it is lawful to do so. It does not exercise absolute discretion. It has to act if a case therefor has been made out including the question as whether any extraditable offence has been made out. For the aforementioned purpose it does not Act as an agency within the four corners of the DSPE Act. It acts, it will be a repetition to state, as an authority of the Central Government.”

15. As per the above judgment, it is clear that, insofar as India is concerned, the CBI is the designated agency which acts as a NCB under the Constitution of the INTERPOL. Further, when a request is received from INTERPOL, the NCB-India acts on behalf of the Central Government.

16. In the present case, the request received from INTERPOL is quite clear to the effect that the Petitioners have been declared fugitives wanted for prosecution in proceedings before competent Courts in South Africa. The relevant Red Corner Notice in the present cases, itself records that the action to be taken if the Petitioners are traced, would be the extradition or provisional arrest of the Petitioners.

17. The affidavit dated 30th March, 2024 filed on behalf of NCB-India (INTERPOL), CBI, New Delhi records clearly that the LOCs in the present case have been issued pursuant to the INTERPOL Red Corner Notice which was received by the NCB-India. The final action as recorded in the said notice is as under: 15:31 “3. ACTION TO BE TAKEN IF TRACED

LOCATE AND ARREST WITH A VIEW TO EXTRADITION: Assurances are given that extradition will be sought upon arrest of the person, in conformity with national laws and/or the applicable bilateral and multilateral treaties.

PROVISIONAL ARREST: This request is to be treated as a formal request for provisional arrest, in conformity with national laws and/or the applicable bilateral and multilateral treaties. Immediately inform NCB PRETORIA South Africa (NCB reference: INTERPOL PRETORIA of 6 June

2021) and the ICPO-INTERPOL General Secretariat that the fugitive has been found.”

18. It is noted that the NCB-India is merely an agency giving effect to the Red Corner Notice and does not deal with the merits of the matter. Under the aforesaid Office Memorandum, once notice seeking assistance is received from INTERPOL owing to the cooperation between various countries and their law enforcement agencies, the NCB-India is to issue the LOC and extend cooperation.

19. The LOC having been issued pursuant to the INTERPOL Red Corner Notice, it cannot be claimed that the same is contrary to law. The Court in such cases is not examining the merits of the matter. It is up to the Petitioner’s to avail of their remedies in accordance with law in the courts of the country of origin depending upon the facts.

20. The allegations against the Petitioners are that of money laundering and certain other monetary embezzlement issues. Mr. Vivek Sood, ld. Sr. Counsel, submits on instructions that in fact, the Petitioners have not been convicted by the concerned Court of South-Africa in respect of the alleged offences. These 15:31 are issues which are to be dealt with by the Petitioners after availing appropriate remedies in the requesting country, i.e., South Africa. Indian Courts are not to examine an INTERPOL Red Corner Notice on merits.

21. There is also an allegation on behalf of the concerned investigating agency that Annexure P-7 in both the petitions, which is a letter issued by the South African Police Service and signed by one Captain K. Ralala, stating that the Petitioners do not have a criminal record, is a fabricated document. This position is disputed by the Petitioners in terms of their affidavit dated 30th March, 2024. The Court is of the view that it cannot deal with the said allegation in the present proceedings, since it relates to a certificate issued by the South African Authority, the forgery and fabrication, if any, may be looked into by the appropriate countries’ agencies.

22. Further, in light of the aforesaid discussion, the LOCs under challenge would not be liable to be quashed or set aside. Since the medical documents of the concerned persons have been verified, the Petitioners can continue to stay in India, however, if any investigation request is received along with any provisional arrest request,[1] the same shall be given effect to in accordance with law by the concerned agencies. If any request for extradition is made, the same shall also proceed in accordance with law.

23. Needless to add, this Court has not considered the merits of the dispute including the alleged contractual dispute, if any, which formed the subject of the INTERPOL Red Corner Notice issued pursuant to the proceedings against A request for ‘Provisional Arrest’ may be raised by the competent authorities of the Requesting State i.e., the Republic of South Africa, under Article 12 of the Treaty between the Republic of South Africa and the Republic of India on Extradition, read with relevant provisions of the Extradition Act, 1962. 15:31 the Petitioners before the competent Courts of South Africa.

24. If the Petitioners wish to leave the country, they shall give an advance intimation of at least one week to the NCB-India (INTERPOL), CBI, New Delhi at their email address-ddco@cbi.gov.in.

25. The Petitions above are disposed of in these terms. Pending application(s) if any, are also disposed of.

26. No further orders are called for.