Why the 10-year wait for a verdict was the lesser travesty of justice in a terror case

The verdict came after a long wait of 10 years, but that was the lesser travesty.

In early August, a special court in Mumbai delivered a judgement in what is known as the 2006 Aurangabad arms haul case, where the Maharashtra Anti-Terrorism Squad had professedly intercepted two cars filled with arms and ammunition supposedly meant for a terror attack. The court convicted 12 individuals, sentencing seven of them to life imprisonment, and acquitted eight men of all charges.

Even by Indian legal standards, the protractedness of the 2006 case was exceptional. What made the 10 years especially long was that of the 20 accused, only 10 got bail. And the bail came after they had spent the majority of those years in prison.

Though the first arrests took place within weeks, the first bail in the case was granted in 2013. This was a year after the Bombay High Court, while rejecting a bail petition, had directed the trial court to expedite the trial and hear it daily. That obviously did not happen and the accused men were being granted bail till 2015.

What was the reason for this? Despite the Supreme Court’s dictum that “bail, not jail” should be the rule, why were 10 of the accused men denied bail, while the rest had to spend most of the pre-trial period in prison? The answer: the Maharashtra Control of Organised Crime Act. The accused men were charged under MCOCA – a law meant to be used against gangsters habitually indulging in organised crime – and bail was made nearly impossible under it.

However, when the judgement came, the MCOCA charges were dropped, as the judge ruled that they did not apply to these accused men.

Litany of injustices

A terrible injustice has been committed against the accused men. Because of the provisions of a law that should never have been applied to them, they had to spend almost the entirety of the case behind bars. This was bad even for those finally found guilty at this first stage of judicial process, as it deprived them of a chance to live as free citizens before serving their sentence, a chance most accused persons get. But for those finally found innocent, the application of MCOCA was nothing less than an atrocity perpetrated by the Maharashtra Anti-Terrorism Squad.

Eight of the accused men were eventually acquitted. Of them, seven had been out on bail for three or two years, or merely one year. Despite having committed no crime, the seven spent six to nine years in prison, while the eighth lost a decade behind bars.

Who will pay for this injustice? Shouldn’t the police officers who invoked MCOCA in this case at least be asked for an explanation? The demand is not unreasonable for two reasons:

1. MCOCA puts the accused at a disadvantage since it is the only law that makes confessions made before an officer of the rank of superintendent of police admissible as evidence. This alone should make the police think twice before applying the law. Even hardened members of organised gangs, for whom the law is meant, cannot be expected to withstand the torture that generally precedes a confession.

Also, the ATS had applied the Unlawful Activities (Prevention) Act, an anti-terror law, in the Aurangabad arms haul case. What was the need then to additionally apply MCOCA, except to get the benefit of extracting confessions from the accused instead of finding evidence? Under MCOCA, the confession of a co-accused can also be used against an accused person.

2. The ATS officers should be asked for explanations also because of the agency’s record of framing innocents. The most glaring example of this is the 2006 Malegaon blasts case, in which all nine accused individuals were discharged, meaning they were found innocent to the extent that no trial was deemed necessary to absolve them. Here too, they were charged with MCOCA, their discharge came after 10 years, and they got bail after five years.

A dark fate

Still, the 2006 Malegaon blasts case is only the most glaring example of innocents having to remain in prison because the ATS framed them under laws that make it difficult to get bail. There are others to suffer this fate.

• Advocate Bilal Kagzi of Surat was arrested by Mumbai’s Crime Branch in 2008 from his house in an extortion case and then produced before the media as a terror suspect in the 2008 Ahmedabad and Surat serial blasts. After subjecting him to narco tests (and, according to him, third degree torture), he was handed over to the Pune Anti-Terrorism Squad, who slapped Unlawful Activities (Prevention) Act on him and described him as a member of the banned Students Islamic Movement of India.

Bail is difficult under the Unlawful Activities (Prevention) Act too. But the evidence against Kagzi was so weak that he was released on bail after three months and finally acquitted last year by a sessions court in Mumbai of all charges under UAPA.

• In 2010, the ATS arrested two truck drivers from Kashmir under UAPA. Four years later, they were acquitted of UAPA charges, but convicted under the Arms Act and each given three years’ sentence. Because it’s difficult to get bail under UAPA, they had spent one year more in jail than their sentence.

• In 2014, the ATS arrested Abdul Mateen Damda from Goa airport and tom-tommed that he was the financer of the July 2011 blasts in Mumbai’s Zaveri Bazar, Opera House and Dadar. He was accused of supplying funds to Yasin Bhatkal, the alleged commander of the Indian Mujaheedin who, along with his family, has been accused in practically every blast case. Damda was arrested under MCOCA. But two months later, the same agency presented an application in court professing there was no evidence against him and he should be discharged. Why then had MCOCA been applied against him?

Radicalisation in India

Feroze Deshmukh was one of those acquitted of all charges in the Aurangabad arms haul case. But it seems his acquittal meant nothing to the investigating agencies. Four days after he was released, the National Investigative Agency put his name on top of a list of terror-accused who have been “inspired” by the preacher Dr Zakir Naik.

Deshmukh’s inclusion in this list indicates one of two things: either the NIA has no faith in court verdicts or the ATS was particularly inefficient in convincing the court about Deshmukh’s guilt. Either conclusion reflects badly on our anti-terror forces.

How can this injustice end? Those who have wrongly booked innocents under a law that deprives them of rights extended to others should be sued. Usually, this does not happen. Once acquitted, most accused individuals want nothing to do with the police. And human rights organisations know that bringing policemen to book is nearly impossible. The policemen who were indicted by Justice BN Srikrishna in his inquiry report into the 1992-’93 riots have still not been brought to trial by their victims because the government is backing the indicted men to the hilt. It might be better to launch a campaign to amend MCOCA and strip it of its most attractive feature in the police’s eyes: confessions should no longer be admissible as evidence.

It is worth wondering what must have gone through the minds of the men during their long dark years in prison when they knew that they had been falsely blamed for terrible crimes because they are Muslim. Remarkably, many of them got degrees and diplomas in jail.

“Radicalisation” is a term popular among our policemen these days. They claim to be worried about it. Maharashtra ATS even “counsels” Muslim youth against it. Of course, it is assumed that “radicalisation” can only apply to Muslims, not the hundreds of Hindu youths swayed by the BJP’s hate-spewing members. Maybe the police should consider that their biased conduct towards young Muslims could be a key source of radicalisation in India.