Nirav Modi applies to ‘reopen’ his extradition case after confidential legal matter preventing his removal fails

London: Fugitive diamond merchant Nirav Modi applied to reopen his extradition case at the London high court on Tuesday, claiming he had substantial new evidence that he will be interrogated and tortured by the investigating authorities if extradited to India. His confidential legal application, which hitherto had barred his extradition to India, has now “failed”, the court was told.

Edward Fitzgerald KC, representing Nirav (54), said the new evidence had arisen following the Sanjay Bhandari judgment handed down by the same court on Feb 28, which found that Bhandari, accused of tax evasion, should not be extradited as he could be tortured or mistreated by the Indian police or investigative authorities, both within and outside Tihar jail. The Bhandari judgment claimed the use of torture in India to obtain confessions “is commonplace and endemic”.

Fitzgerald argued there was a real risk that Nirav would be interrogated by the CBI, ED and other investigative agencies upon his extradition, and that he was at “real risk of torture”, contrary to Article 3 of the ECHR.

This “expert evidence” came from former Supreme Court judge Deepak Verma and Ayush Agarwal, a lawyer in India who previously acted for Nirav.

A confidential legal matter, which began in April 2018 and barred Nirav’s removal to India despite his extradition being ordered on April 15, 2021, had concluded in Aug and Nirav’s application “had failed”, the court was told. This matter has never been disclosed, but is widely believed to be an asylum claim.

Within days Fitzgerald applied to reopen Nirav’s appeal against extradition. Had he not done so, Nirav would have already been removed to India.

UK courts may only reopen decisions in exceptional circumstances such as a “supervening event”.

Fitzgerald argued that in Nirav’s earlier appeals, the focus was on Nirav’s suicide risk and prison conditions and the issue of torture did not arise, but the Bhandari judgment and several new reports, including one by the US state department, were “the supervening event”.

Nirav appeared via video link from a London prison in a khaki T-shirt. He has been in prison since he was arrested on an extradition warrant in March 2019 charged with defrauding Punjab National Bank of over $1 billion.

Four men from the CBI and ED flew here from India for the hearing.

Helen Malcolm KC, representing India, said: “On 28th Feb the high court gave judgment which had a convulsive effect on all extraditions to India, especially to Tihar jail. Fitzgerald raised this in March and then it went quiet, and then Nirav’s secret application failed, and then suddenly we got this application. I don’t know what the confidential thing was. But I know there is only one statutory thing to stop extradition. My concern is we are now already six years down the line. I just see this going on for the rest of my career.”

Malcolm provided new assurances from New Delhi saying Nirav would not be interrogated by any agency on his return to India. But Fitzgerald argued these needed further examination by his experts. The two HC judges agreed. Lord Justice Stuart-Smith told Malcom: “Your chunky assurances came very late.” He added: “We are concerned that the materials we have been given don’t leave us on a stable footing for deciding this application.”

The next hearing is expected to take place in March.