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September 27, 1990


The opinion of the court was delivered by: Sweet, District Judge.


Ranjit Singh Gill ("Gill")and Sukhminder Singh Sandhu ("Sandhu") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. By issuance of such writ, they seek to prevent their extradition to India to stand trial on murder charges (and, in the case of Sandhu, other crimes) characterized by the government of India as terrorist acts. For the reasons set forth below, the writ will issue. Release of the petitioners shall be stayed pending either the filing and resolution of any appeal from this decision to the United States Court of Appeals for the Second Circuit by Respondent Romolo J. Imundi or the filing by the Indian Government or its agents in this district of further extradition complaints against Gill and Sandhu.

Procedural History

On May 14, 1987, federal officers arrested Gill and Sandhu in New Jersey. Sandhu's arrest was pursuant to a warrant issued by a magistrate of the Central District of California, predicated upon an extradition complaint lodged against him there. Gill was detained by U.S. Immigration officials at the same time, and held in custody until the following day, when an extradition complaint was filed against him and a warrant of arrest issued by the Honorable Ronald J. Hedges, United States Magistrate, District of New Jersey.

Petitioners were brought before the extradition magistrate, Magistrate Hedges, on May 15, 1987, and ordered held without bail. In the Matter of the Extradition of Sukhminder Singh and Ranjit Singh Gill, 123 F.R.D. 140, 142 (D.N.J. 1988). Petitioners have been detained since then at the Metropolitan Correctional Center in New York City under the custody of Romolo J. Imundi, United States Marshal for the Southern District of New York. Gill v. Imundi, 715 F. Supp. 592, 593 (S.D.N.Y. 1989). By these petitions, filed on March 7, 1988, Gill and Sandhu challenge their confinement pursuant to the certificates.

A. The Extradition Complaints

The original extradition complaint brought against Gill charged him with one count each of murder, conspiracy to commit murder, and aiding and abetting murder. As to Sandhu, the complaint originally recited one count of conspiracy to commit murder, arising out of a separate incident. Superseding complaints were sworn to by the government before the extradition magistrate on July 6, 1987, pursuant to 18 U.S.C. § 3184.

The superseding complaint against Gill charged murder, attempted murder and murder in furtherance of a common intention in connection with the shooting deaths of Lalit Maken, who was a member of the Indian Parliament, his wife Geetanjali Maken, and a constituent of Mr. Maken, Balkishan Khanna, on July 31, 1985 in Delhi, India.

The complaint against Sandhu charged five counts. Two of those counts charged Sandhu with robbery and conspiracy to commit robbery of the Punjab National Bank in Ahmedabad, India on January 6, 1986 and the Chemur branch of the New York Bank of India in Bombay, India on April 28, 1986. Sandhu was also charged with murder, attempted murder and murder in furtherance of a common intention in connection with attacks upon police officers occurring in Udaipur, India on April 16, 1986; wrongful confinement and wrongful confinement in furtherance of a common intention in connection with the abduction of a police officer at Antop Hill, Bombay on May 3, 1986; and conspiracy to commit murder in connection with the shooting of retired Indian Army General A.S. Vaidya on August 10, 1986.

The charged crimes against both Gill and Sundhu are said by the requesting government to have been the work of Sikh terrorists and certain of the offenses are punishable by death.

B. The Hearing

The original hearing date of July 11, 1987 was changed several times, both by the magistrate sua sponte and at petitioners' request. On July 15, petitioners received the documents constituting the Indian government's evidence in support of the extradition request. On July 31, 1987, the court denied petitioners' motion for an enlargement of time to conduct discovery and adjourned the hearing date to the week of August 24, 1987.

On August 31, 1987, following petitioners' filing of a petition for a writ of mandamus to the district court seeking an order directing a further adjournment, the hearing was adjourned by Magistrate Hedges to permit petitioners' counsel to travel to India to investigate matters pertaining to the extradition requests.*fn1 The magistrate did order the government to produce to petitioners' counsel a copy of certain portions of a confession upon which the government intended to rely. A new hearing date was set for the week of November 2, 1987. On October 29, 1987, the court directed that further documents be produced to petitioners' counsel and again adjourned the extradition hearing, this time to the week of February 1, 1988.

On November 2, 1987, after briefing from the parties, Magistrate Hedges issued evidentiary rulings with respect to evidence that petitioners contended would show in the forthcoming extradition hearing that they could not receive a fair trial upon return to India and that they would be likely tortured and murdered by the Indian government if returned to India. In re Extradition of Singh, 123 F.R.D. 127, 140 (D.N.J. 1987). The extradition magistrate held that under the applicable treaty and statutes he had no authority to consider petitioners' argument as to the treatment that may await an extraditee upon return to his home country and that such argument must be addressed to the executive branch through the Secretary of State, to whom the discretion to extradite has been entrusted. Id. at 137. Accordingly, the extradition magistrate excluded all evidence that petitioners intended to offer at hearing relating to the issue of treatment upon return to India. Id. at 140.

C. The Evidence at Hearing

The extradition hearing was conducted in February 1988. The government's case consisted of affidavits of a number of individuals residing in India. (See affidavits of D.B. Bangia, S.V. Rao Kelsikar, N.K. Patni, S.C. Pandya, V.S. Kumbhar, S.K. Kishore, J.G. Bhave, C. Prabhaka, B.D. Sanghvi, S.K. Saxena, M.K. Kanabur, A.K. Kanth and S. Malik). The government also relied upon the confession of Sikde Singh, the Declaration of JoAnn Dolan; the testimony of Special Agent Mallon of the Immigration and Naturalization Service who testified to statements made by defendants after their arrest (which also were admitted into evidence); and the testimony of Roy L. McDaniel, a Supervisory Fingerprint Specialist with the Federal Bureau of Investigation. The testimony of Maremdra Patni, Additional Superintendent of Police with the State Government of Rajastan in India, also was introduced to establish the chain of custody of fingerprints taken from a crime scene. See In re Extradition of Singh, 123 F.R.D. 140, 162 n. 17.

D. The Evidence as to Sandhu

1.  Count 1 — The Ahmedabad Bank Robbery

2. Count 2 — the Udaipur Murders

The affidavit of Deputy Police Superintendent Suresh C. Pandya states that in the early morning of April 6, 1986 a light blue Fiat automobile with three male passengers was seen driving back and forth near the police station in Udaipur. Pandya and another police officer stopped the car. In response to a request from Pandya, the driver of the car turned over a driver's license registration and other documents. The license was in the name of "Fram D. Sunwala" and bore a picture of a passenger in the car. The car registration was in the name of Mrs. Vasudeva. Pandya conducted a pat-down during which he found twelve 38-caliber cartridges, and then attempted to detain the driver. The driver called to his companions, one of whom is said to have shot Pandya in the right shoulder.

The three men in the car then attempted to flee. Deputy Superintendent of Police Mathur tried to stop the driver and was shot and killed by the passenger whose picture was on the driver's license, according to Pandya's affidavit. In the course of their escape, the three men also shot Magistrate Vajpayee, head Constable Bhawani Singh and Sub-Inspector Rajendra Singh, the last of whom later died from the gunshot wounds.

Pandya identified a picture of Sandhu as that of the man who killed Deputy Superintendent Mathur. According to the affidavit of Police Superintendent Patni, certain of the fingerprints lifted from the car matched those of Sandhu. Hotel bills recovered from the automobile led the police to a motel in Ahmedabad, where the police there found entries in the hotel register in the name of Fran W. Sunwala. According to Patni, an Indian handwriting expert discerned that entries in the hotel register were in the handwriting of Sandhu, as was handwriting on a piece of paper recovered from the automobile. Based upon this evidence, the magistrate concluded that there was probable cause to believe that Sandhu committed the offenses charged in Count 2. (Tr. 245-56).

3. Count 3 — The Chembur Bank Robbery

According to the affidavit of one K.K. Marwah, a branch bank manager, on April 28, 1986, a man walked into the office of the manager of the Chembur branch of the New Bank of India in Bombay, disconnected the phone and ordered the bank manager to bring the keys with him to the main bank hall where other bank employees were guarded by two armed men. The three armed men then stole sums of money from the bank. By affidavit, the bank manager, Kumbhar, identified a photograph of Sandhu presented to him by a police inspector as that of the first armed man who entered his office.

4. Count 4 — the Antop Hill Abduction

As noted, a police officer's affidavit recited facts about his abduction in an apartment at Antop Hill, Bombay. The extradition magistrate concluded as a matter of law that the charges of wrongful confinement and wrongful confinement in furtherance of a common intention were not extraditable because they failed to meet the requirement of dual criminality and because they did not meet the "serious offense" requirement. (Tr. 261-64; Order filed Jan. 27, 1988).

  5.  Count 5 — The Conspiracy to Murder General

According to the affidavit of C. Prabhakar, a Superintendent of Police, on August 10, 1986, General Vaidya, a retired general of the Indian Army, was killed by two motorcyclists who pulled up to his car and opened fire. According to the government, Sukhdev Singh, one of the alleged assailants, in a written confession implicated Sandhu in the conspiracy to murder General Vaidya. Singh's confession stated that Sandhu and another member of the gang had gone to Pune, India in January 1986, discovered the address and license number of General Vaidya, and at that time, "chalked out a programme to kill Genl. Vaidya." Singh's confession identifies certain hotels and apartments where Sandhu allegedly stayed in Pune.

Handwriting analysis referred to in the affidavit of Prabhakar found that Sandhu was the person who signed the hotel registers and rented the apartment in Pune and that the license number of General Vaidya's car, "DIB 1437," which was written in the book found at Antop Hill, was in the handwriting of Sandhu. Based upon this evidence, the extradition magistrate concluded that there was probable cause to believe that Singh committed the offense charged in Count 5. (Tr. 265-71).

E. The Evidence against Gill

The government introduced the affidavit of Suresh Malik who stated that he witnessed portions of the shooting incident on July 31, 1985, of Lalit Maken, a member of the Indian Parliament, and his wife, at Maken's house by two gunmen. According to Malik, the gunmen also shot and killed Balkishan Khanna, a constituent of Mr. Maken who was present at Mr. Maken's house, and shot but did not kill affiant Malik. Malik identified Gill as one of the gunmen in his affidavit, based on photographs presented to him by the police.

The government also introduced the affidavit of Deputy Police commissioner Kanth who indicated that two unidentified and unnamed witnesses stated to an unnamed police officer in India that Gill fled to the United States in 1986 under the alias "Yashpal Kashyap," and that Gill told them he was fleeing to the United States because, in the words of Kanth, the "police had discovered that he was one of the gunmen who had shot Lalit Maken and the others." Singh's confession stated his gang had killed Lalit Maken. The Kanth affidavit also stated that there were other, unidentified witnesses and other unidentified evidence with respect to the killings.

The magistrate ruled that the confession corroborated the identification by Malik, (Tr. 488-89), while discounting in part certain unsubstantiated multiple hearsay statements and certain photographs submitted in support of the charges against Gill. (Tr. 457, 491-92). Based on the above, the magistrate concluded that there was probable cause to believe that Gill committed the offenses charged in the complaint. (Tr. 486-96).

F. Post-Certification Proceedings

The certificates of extradition against petitioners were issued on February 5, 1988 and a stay entered to permit petitioners to bring this habeas ...

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