A Special National Investigation Agency (NIA) court in Delhi has discharged four persons accused under Unlawful Activities (Prevention) Act (UAPA) who were accused of receiving terror funds from Pakistan under the guise of constructing a mosque. Special NIA judge Parveen Singh observed that the evidence was inadequate to link the illegal hawala money to a terror organisation in Pakistan and that the prosecution was trying to establish the case on presumptions.

“It is from a fact that we can move towards a presumption but if the starting point of journey which leads to final presumption is a presumption itself, then drawing the final presumption on the basis of initial presumption is a very dangerous proposition,” observed the court.

The prosecution even tried to lead with arguments that words like “ghee” meant funds and “khidmat” meant training in terror camps. The court pointed out that “ghee” could mean anything, and the literal meaning of the word “khidmat” is service and one cannot give it just one interpretation.

The funds were admittedly received through hawala networks, which is illegal, and were used to construct a mosque in Haryana. However, no terror links could be established for charges under UAPA to be substantiated.

Background

The case of the prosecution was that Mohammad Salman was in touch with a Pakistani National who was connected with the Deputy Chief of Falah-I-Insaniat Foundation (FIF) which was declared by the UN as a terrorist organisation. It was alleged that Salman was receiving funds from a FIF operative to create sympathisers/ sleeper cells and logistic bases in Delhi and Haryana under the garb of religious work.

During investigation it was found that Salman had no source of earning and was frequently traveling from Delhi to Haryana for construction of a mosque for which he was providing funds. It was also found that Salman was in touch with other accused Mohammad Salim through whom funds were being received from Dubai. Scrutiny of documents seized from Salman’s house revealed that he received huge funds through hawala from Dubai based Pakistani National and accused, Mohammad Kamran. Further, it was found that another accused, Mohammad Arif Gulambashir Dharampuria, who was an employee of Kamran since the year 2012, was monitoring the distribution and usage of the hawala funds in India.

Arguments

The counsel for Salman (accused no.1) argued that there is no evidence to show accused Salman is a member of FIF. Further, there is no evidence of how the prosecution has reached to a conclusion that the money flow started from Hafeez Saeed in Pakistan. She further argued that even if money was transferred through Hawala channels from Dubai to India. She also submitted that the main allegation is, that the money was coming from the sources which were related to FIF for which there is no evidence except a CD which is not admissible in evidence and even if its contents are accepted to be correct, the CD does not at all reflect that any money was being sent to India by Mohd. Kamran on the instructions of Shahid Mehmood.

The Counsel for Salim argued that there is nothing on record to show that the accused had the knowledge that funds, which were to be received from Hawala operators, were to be used for alleged terror activities. No direct contact with Kamran was established either.

Court's findings

The court, after perusal of all material and submissions observed that the strongest piece of evidence to link Kamran with FIF was a CD which apparently contained conversations between Shahid Mahmood (a declared terrorist of Pakistan) and Mohd. Kamran. The CD was recovered from accused Dharampuria. However, the NIA did not try to trace the person who prepared this CD. The court thus deemed the CD to be inadmissible as evidence since the source of the same was unknown and no certificate under section 65B of Indian Evidence Act was presented.

The court further analysed that even if the CD was admitted as evidence, the contents could not be used to link money sent by Kamran with FIF. The prosecution argued that since Kamran was working closely with Shahid Mamood he should have known that the latter works for FIF, and thus a conclusion can be drawn that the money sent by Kamran was linked to FIF.

To this, the court responded, “I find that the contention reproduced above itself shows that there are many ‘ifs’ involved before this contention can be accepted and this contention is not based on facts but on presumptions which leads to a final presumption that Mohd. Kamran was a member of FIF”.

The court said that for presumptions to be raised, the basis for such presumptions has to emerge on facts. “It is from a fact that we can move towards a presumption but if the starting point of journey which leads to final presumption is a presumption itself, then drawing the final presumption on the basis of initial presumption is a very dangerous proposition,” said the court.

The court held that the conclusion reached by the prosecution failed the test of applying logical, deductive or inductive reasoning to reach at a conclusion that Kamran was a member of FIF and further that money sent by Mohd. Kamran belonged to FIF.

The court observed that money was sent through illegal hawala channel from Dubai and used for construction mosque, starting of madrasa in that mosque and marriages of poor Muslim girls. An illegality was being committed where money was being received from Hawala channels, which even the accused did not deny, however, they may be charged for those offences and not for terrorism under UAPA.

Further, it was stated by two witnesses who were working for Salman in construction of the mosque that they heard Salman saying that the money was for “special purpose” and that “the donor of the funds had some different plans which would be revealed at right time”. The prosecution inferred that the special purpose was creation of sleeper cells, different plans included creating support base for sleeper cells and finding sympathizers for any kind of work meant for terror activities.

“The prosecution has tried to impress that meaning of these words which is to be deciphered is that the special purpose, different plans and any kind of work could only mean terror activities or creation of sleeper cells/ hideouts for terrorists. However, there is no evidence on record on the basis of which such meaning can be given to these words. There is nothing on record to show that there was any code that was being used and has been deciphered wherefrom the meaning which the prosecution seeks to attach to these words can be accepted,” the court observed.

The court said that, “Though there may be some suspicion raised as to what this special purpose was or what those different plans were, however, mere suspicion cannot substitute evidence and it is only the evidence that can be used to assign the meaning which the prosecution seeks to assign to these words… On the face of it there can be many interpretations and meanings that these words can have and the imputation which the prosecution seeks to assign can at the most be accepted as one probable explanation and not the sole explanation.”

The court concluded that although the activities of accused Mohd. Salman were suspicious in nature, the prosecution has failed to bring forth any evidence which would raise a grave suspicion that Salman was receiving terror funds originating from FIF.

The court thus found that the material placed before it was not sufficient to raise grave suspicion of offences under UAPA by Accused Salman, Saleem, Dharampuria and Mohd. Hussain Molani. The court thus discharged the accused from these offences.

The order may be read here:

Related:

Delhi court denies bail to Sharjeel Imam in sedition case

Bom HC to hear Dr. Varavara Rao’s bail extension plea on Oct 26

Gauhati HC grants bail to UAPA accused who said “Taliban are not terrorists”