London: “No bail for Nirav Modi”, chief magistrate Emma Arbuthnot declared after a three-hour long courtroom battle at the Westminster Magistrates’ Court on late Wednesday afternoon .
The main accused in the Punjab National Bank scam, who is now facing extradition proceedings in London, was sent back to Her Majesty’s Prison Wandsworth, where he has been lodged since his arrest on March 19.
Modi’s team had appealed to the court on the grounds of “change in circumstances” and provided the court “new evidence” on April 30.
The Crown Prosecution Service (CPS) forwarded the defence’s documents to the Indian government on the same day and received a response from them on Sunday.
‘Allegations do not come out of thin air’
The CPS argued that the evidence provided to the court by Nirav Modi’s team did not amount to any “material change of circumstances” and the factors based on which Arbuthnot had refused Modi’s bail earlier remained relevant.
On March 30, Arbuthnot had refused bail on the grounds that the fraud value was “substantial”, there was a distinct “lack of community ties” to the UK, his citizenship application to island country Vanuatu and access to “large resources”. All this coupled with accusations of threats to witnesses and destruction of evidence like servers and phones was enough to convince Arbuthnot that Modi was not only a flight risk but could also tamper with evidence in the case.
“The court can only proceed on the basis that Modi has access to finances,” said CPS barrister Nicolas Hearn. With regards to interfering with witnesses, “these allegations do not come out of thin air”. Modi, the barrister said, has helped witnesses in “setting up homes in Egypt” and his brother had contacted those witnesses and asserted himself into the proceedings. “It appears that he intimidated witnesses and made references that those witnesses may end up in jail if they don’t cooperate,” said Hearn.
The Government of India believes these individuals are used as “dummy directors of companies within Mr. Modi’s general control,” Hearn told the court, adding that there is “plausible account of witnesses being contacted by Nirav Modi” where he gave them the illusion that they would be “most certainly arrested in India”.
There is nothing in the defence bundle at this stage to “undermine those allegations”, concluded Hearn.
‘India wants to present Modi as diabolic’
Calling the CPS’ arguments in March “no longer sustainable”, Montgomery first looked at the issue of Modi’s “significant assets” and told the court that there have been “significant seizures in India” of items that are precious, there is also a “freezing order in place on funds in accounts with EFG bank” and all other entities are now in receivership or liquidation.
She told the court that any claims that he has assets that will enable him to flee are “not true”.
She then went into an elaborate account of the transcripts provided by India to the court of witnesses who claimed that Modi had threatened them and illegally confined them in Egypt and UAE. She said that according to CPS document, Subhash Parab was concerned that there was a “life risk” to him and “illegal confinement” in Egypt. “That is why we obtained statements from Subhash Parab. It is clear that he is not in any threat of death or in illegal confinement,” she told the court.
The Rs 20 lakh that Modi is thought to have offered a witness Ashish Lad, Montgomery claims, was compensation for the witness to come to UK and depose here.
Montgomery said that witnesses would have committed themselves to the prosecuting agencies in India who “would decide who would be in the dock and who would be the witness”. She also brought to the court’s attention a tweet by the Enforcement Directorate where they claimed that the seizures (from Modi) were Rs 7,664 crore whereas the PNB scam was about Rs 6,498 crore. Calling it a “white collar case”, she added that in such cases “intimidating witnesses is impossible” and “rate of absconding is incredible low” particularly where a person has to provide high surety and meet other conditions.
She also pointed out that in the last hearing India claimed that Modi had travelled to New York in February 2019. “There was no such travel,” she told the court emphatically, adding that India failed to provide any evidence of such travel either in February 2019 or February 2018 (as claimed by India later).
Describing Modi’s experience in custody as “vivid and damaging”, Montgomery told the court that he is in a state where “he would do nothing to risk bail”. If granted bail, Modi promised not to contact his brother or witnesses and also agreed to a 24 hour surveillance.
In the third bail application, Modi was willing to double his bail bond from £1 million to £2 million. Montgomery told the court that Modi earns a salary of £250,000 a year and is using this to fund his surety. Modi has ceased to seek any immigration anywhere else and is only in the UK.
She also emphatically said that Modi is nothing like the “diabolical mechanic” or “cold blooded hardened criminal” that India wants to present him as. Modi, sitting in the dock in a light blue shirt and dark navy trousers, slowly smiled.
‘Witness protection cuts both ways’
After adjourning the court for 30 minutes, Arbuthnot said that Modi doubling his bail bond satisfied the conditions for the grounds of “change in circumstances” but was not convinced enough to grant him bail.
Her primary reason was his “lack of ties to the UK” as he has only been in the country since December 2017. She was also in no doubt that Modi had access to large funds and was not completely convinced that he would not influence witnesses. “There isn’t sufficient grounds to disregard concerns,” she said.
Agreeing that the defence put forth a “compelling argument”, the district judge said the “witness protection cuts both ways” as the same set of documents were used to make important arguments by both prosecution and defence.
Arbuthnot admitted that although her “first thought” had been that passage of time (since early 2018) had made influencing witnesses less risky, on hearing the prosecution’s argument that this would affect the extradition trial in the UK, she agreed that it was a valid reason for refusing bail.
“I won’t be granting bail,” Arbuthnot said to a forlorn Modi who stood quietly with his head bowed as she ordered him back to jail. The case management hearings in the extradition trial will begin on May 30.
Meanwhile, Modi can approach the high court to make another bail plea.