"Mere Recovery Of Phones & SIM Cards Used For Conversing With Pakistani Number Not Sufficient To Prove Conspiracy": Delhi Court Acquits 5 Men Charged With UAPA

Additional Sessions Judge Dharmendra Rana of the Patiala House Courts acquitted Mohd Shahid, Mohd Rashid, Ashabuddin, Abdul Subhan and Arshad Khan who were charged under sec. 120B Indian Penal Code & sec. 18, 18B and 20 Unlawful Activities (Prevention) Act.

While doing so, the Court observed thus:

"Mere recovery of the mobile phones and sim cards used to converse amongst each other or converse with a Pakistani number is not sufficient to prove the existence of any conspiracy."

" It is rightly pointed out by Ld. Defence counsel that there is nothing on record to establish that the abovesaid Pakistani number belongs to the dreaded terrorist Javed Balluchi. IO Manishi Chandra (PW39) in his testimony has admitted that it is possible to collect the relevant information with respect to any Pakistani number, yet no explanation is forthcoming on record as to why no efforts were made by investigating agency to collect the particulars regarding the ownership of the mobile no."

Abdul Subhan and accused Ashabuddin @ Soukat (son of the sister of Abdul Subhan) had been arrested in the year 2001 by the CBI while carrying a consignment of RDX, AK­56 rifles, and other arms in Santhalpur, Gujarat. Both were convicted in the said case.

After completing his sentence, Abdul Subhan came out of jail in the year 2010. In 2011, communal riots had taken place at Gopal Garh, District Bharatpur, Rajasthan where several persons belonging to a particular community were killed. Abdul Subhan was a member of the banned terrorist organization, Lashkare­Taiba (LeT), and the said riots kindled his passion for Jehad.

As per the case of the prosecution, Abdul Subhan in order to give effect to his intentions to wage jihad came across Mohd. Rashid, stated to be a highly motivated person. Abdul Subhan convinced Mohd. Rashid to wage Jihad. Abdul Subhan had also tried to associate and motivate Javed and Sabbir who were residents of Mewat but they did not join him. 

Abdul Subhan disclosed his plan to Mohd. Rashid about his intentions to kidnap a businessman for ransom to raise money for Jihad and that the money would be received in Dubai through hawala channels with the help of Javed Baluchi. He asked Mohd. Rashid to arrange for a mobile phone connection / SIM card on a fictitious identity to talk to Javed Baluchi.

As per the case of the prosecution, Abdul Subhan in order to give effect to his intentions to wage jihad came across Mohd. Rashid stated to be a highly motivated person. Abdul Subhan convinced Mohd. Rashid to wage Jihad. Abdul Subhan had also tried to associate and motivate Javed and Sabbir who were residents of Mewat but they did not join him.

After perusing the evidence on record against the accused persons with respect to the alleged offense u/s 18 of UAPA, the Court noted that there are gaping holes in the prosecution version. 

It was observed that except for the recovery of a few mobile phones and sim cards, intercepted conversations, and entry in the visitor's register in Kolkata Jail, there was no other incriminating piece of evidence sufficient in itself to establish the prosecution case, which seems to be based upon surmises and conjectures rather than any credible evidence.

Court also recorded that the prosecution has been unable to prove the identity of Javed Balluchi leaving aside the allegation that he is a dreaded terrorist. 

It was observed that except for the bare contentions, there is nothing on record to establish the taint attempted to be attached with the credentials of Javed Balluchi. Leave aside the enquiry regarding the credentials of Javed Balluchi, investigating agency seems to be not sure even about his real name and it emerges from the record that the prosecution refers Javed Balluchi as Javed Wadaich and Javed Chaudhary also.

"I have no hesitation in observing that the investigating agency has made no efforts to establish the identity of obscured entity known by the name of Javed Balluchi and it is not even clear as to if some person by the name of Javed Balluchi actually exists in Pakistan or some mischievous person was acting under the fake identity."

The Court said that the call records at best only prove the fact that there was some conversation between Indian citizens on the one end and a person using a Pakistani mobile number on the other end, however, that by itself is not sufficient to presume that accused Javed Balluchi actually existed or that the accused persons conversing with him were involved in any conspiracy to commit any terrorist act or kidnap any rich businessman.

"Furthermore, even if for the sake of arguments, the above said defects in the electronic evidence pertaining to the said intercepted conversation is ignored, even then the intercepted conversation is not sufficient to bring home the guilt against accused persons."

With regard to allegations of the five people being part of LeT, the court said that once the intercepted conversations available on record is discarded, there is no material available on record to connect accused persons with LeT.

In view of the above discussion, the Court did not find any merit in the case of the prosecution and acquitted the accused persons.

"I am convinced that prosecution has miserably failed to prove on record that accused persons were member of banned terrorist organisation Lashkar­e­Taiba and they accordingly deserves to be acquitted for the charge of offence punishable u/s 20 of UAPA."