Forensic Sciences Lab Doesn't Rule Out Tampering Of Rona Wilson's Laptop : Jaising To Bombay High Court

Arguing Wilson's quashing petition under Article 226, Senior Advocate Indira Jaising submitted that FSL's failure to respond to a specific question put by the then Investigating officer of the case: 'whether Wilson's hard disk was tampered with or not?', indicates that their analysis is not reliable.

"That is the heart of my case. If this question is asked and not answered, then there can be no secure evidence. I can understand if they are saying we have ruled out tampering…"

Wilson has alleged that all the incriminating letters that the National Investigation Agency is relying on were planted on his laptop, over a period of 22 months, through a 10$ malware called Netwire. The letters includes an alleged plot to assassinate the Prime Minister and overthrow the government.

Wilson's plea is backed by US-based digital forensics consulting company - Arsenal Consulting – that concluded that the evidence was planted.

However, NIA has raised serious questions regarding the admissibility of such a report in a criminal trial in India.

"It is my case that crimes under the IT Act were committed against me. It is an offence to tamper with someone's computer under the IT act. And I have come with a positive case that my device was tampered with. An expert should be appointed to ascertain if my computer had malware when it was seized. The expert can tell how the malware was planted,"

Jaising said, concluding her opening remarks while reading out the chronology of events.

Wilson has sought to quash the sanction order, which allowed the Pune police to book the 16 activists, academics and lawyers in the Bhima Koregaon- Elgar Parishad case under the Unlawful Activities (Prevention) Act.

Regarding Searches and Seizure

On Wednesday, Jaising submitted that the seizure of Wilson's laptop was not secure as the 'hash values' of the electronic devices were not calculated. Moreover, his laptop was operated during the search in 2018, which was impermissible.

"Whether you planted evidence or not, you created an opportunity to plant evidence," she said, adding, "The only evidence against the accused in the case are the letters recovered from Rona Wilson's laptop. However, the documents are not reliable as they are not secure"

Jaising said she would advance submissions on the following aspects when she argues regarding the maintainability of the petition, as it is NIA's primary objection.

There are three-four major arguments, Jaising said -

1. Maintainibility of the petition under section 482 of the CrPc and Article 226 of the Constitution.
2. All the evidence was not placed before the sanctioning authority to apply its mind and grant sanction. That sanction is the foundation of taking cognisance, and without sanction, no cognisance can be taken.
3. What is the legal method for the search and seizure of electronic evidence?
4. Can the Arsenal Report be relied on in the present petition under Article 226 to order an investigation?

Additional Solicitor General Anil Singh raised strong objections to the maintainability of the petition as Arsenal's Report was a disputed question of fact which cannot to looked into at this stage. More so since it doesn't form a part of the charge sheet.

He argued that all the arguments being advance by Jaising should be made before the special NIA court at the time of trial.

"Such a report is not maintainable because it entirely revolves around this theory of planting of evidence," Singh said.

He claimed that the American Bar Association that allegedly played a role in sending the clone copies of the seized hard disks to Arsenal had no standing in India, as it isn't a statutory body and its members are unknown.

"Whether we have a case or not, the court will decide. As of now we have a prima facie case. We are at the stage of framing of charges right now. All their contentions can be looked into at the stage of trial….to say that we have got another report, now rely on this.. cannot be done," Singh said.

He will continue his arguments on maintianibility in the next hearing.

Case Title: Rona Wilson v. Union of India