A Delhi court acquitted five accused, including army and BSF personnel, in a 2015 espionage case. The court flagged serious investigation lapses, stating the prosecution failed to prove documents were secret under the Official Secrets Act.
A Delhi Court recently acquitted five accused, including an army personnel and a BSF personnel, in an espionage case. While acquitting the accused persons, the court flagged serious lapses in the investigation. The court said that the prosecution had failed to conclusively establish that the documents allegedly recovered were secret official records within the meaning and ambit of Section 3 of the Official Secrets Act (OSA). It was alleged that the main accused, Kafait Ulla Khan, was sharing defence information related to deployment on the Line of Control (LoC) in Jammu and Kashmir to ISI through Pakistan agent Faizal Ur Rehman. All accused are residents of Jammu and Kashmir. This case pertains to an FIR of 2015 lodged under the Official Secrets Act by the Delhi police.
“The prosecution failed to bring on record any iota of evidence to connect accused Fareed Ahmad with the alleged Pakistani agent Faizal,” Additional Sessions Judge (ASJ) Shefali Barnala Tandon said in the judgement of May 20. “Accordingly, all accused persons, namely Kafait Ullah Khan, Abdul Rashid Khan, Manawar Ahmed Mir, Mohammad Saber, and Farid Ahmed alias Surgeon, are acquitted of the charges punishable under Sections 3 and 9 of the Official Secrets Act, 1923, by giving them the benefit of doubt,” ASJ Tandon ordered. At the time of arrest, Abdul Rashid Khan was serving in the BSF, Farid Ahmed was serving in the Indian Army, and Manawar Ahmed Mir was an ex-Army official. Mohammad Saber was a cyber expert.
Court Cites Major Lapses in Prosecution’s Case
While acquitting the accused persons, the court said that “it is a settled principle of criminal jurisprudence that suspicion, however grave, cannot take the place of proof”.
“In the present case, the prosecution has failed to establish the authenticity and admissibility of intercepted conversations and transcripts; the integrity and chain of custody of the alleged CD recordings, that the recovered documents were ‘secret’ or ‘classified’ within the meaning of the Official Secrets Act; the actual communication of protected information to an enemy agents; the reliable forensic linkage between accused persons and alleged recordings,” the court held.
Further, ASJ Tandon pointed out, “Upon cumulative appreciation of the entire evidence, this Court is of the considered view that the prosecution has succeeded in creating suspicion regarding the conduct and associations of accused persons; however, suspicion, however strong, cannot take the place of proof.”
Meanwhile, the court said that the evidence led by the prosecution suffers from material infirmities relating to the admissibility of electronic evidence, authenticity of transcripts, proof regarding the classified nature of documents, chain of custody of electronic material, independent corroboration and forensic conclusiveness.
The court also said that the disclosure statements allegedly made by accused persons in police custody are inadmissible except to the limited extent permissible under Section 27 of the Indian Evidence Act. “No substantial recovery directly linked to such disclosure statements has been proved in a manner free from doubt. Confessional portions of disclosure statements cannot be read in evidence,” the judge said.
Flaws in Electronic and Forensic Evidence
The prosecution had also relied upon WhatsApp messages allegedly found in the mobile phone of the accused, Abdul Rashid. The court said that no proper extraction certificate, mirror imaging report or independent forensic validation has been proved, adding that the messages merely reduced them to writing.
“Such manually reproduced electronic conversations, unsupported by statutory certification and technical proof, cannot be accorded conclusive evidentiary value,” the court noted.
It was alleged that the accused persons were in contact with each other, and a CD was also allegedly recovered from the residence of Kafait Ulla Khan, one of the accused. The court rejected the call details record as evidence, stating that it merely establishes that certain mobile numbers were in contact with each other.
“Mere telephonic connectivity between accused persons, absent proof regarding contents of conversations or unlawful intent, cannot by itself establish commission of offences under the Official Secrets Act. Human interactions and communications, without more, cannot constitute incriminating evidence,” the court held.
Integrity of CD Evidence Questioned
According to prosecution witnesses, the said CD contained incriminating conversations amongst the accused persons. However, the court said that the manner in which the CD was recovered, copied, sealed, preserved and sent to FSL creates substantial doubt regarding its sanctity and integrity.
One of the prosecution’s witnesses admitted that the original CD did not contain any date, time or phone number. He further admitted that the investigation officer (IO) had supplied him only a copied CD for the preparation of transcripts and that he had never personally heard the original CD. He also admitted that the deceased IO did not understand the Dongri language, which was allegedly used in the conversations.
There was a delay of more than 2 months in sending the CD for forensic examination, and the prosecution failed to establish an unbroken chain of custody of the CD.
“Though the CD was allegedly recovered on November 28, 2015, it was sent to FSL only on February 15, 2016. No satisfactory explanation for such delay has emerged on record,” the court noted.
The court also considered the defence suggestion that the CD may have been prepared subsequently after obtaining voice samples, stating that it cannot be brushed aside lightly. The court also noted that the opinion itself, insofar as documents recovered from Abdul Rashid are concerned, specifically states that such documents were “not classified in nature”.
Background of the Espionage Allegations
All the accused were facing trial for the charge punishable under Sections 3 & 9 of the Official Secrets Act. It was alleged that before November 16, 2015, on the strength of the secret information to the effect that Anti-National activities supported by Pakistan-based intelligence operatives (PIO) were being carried out, in which the information regarding the development of the army and BSF in Jammu & Kashmir, and also across the border, is being passed on to the Pakistan Intelligence Operatives, which can be highly detrimental for national security.
The concerned mobile phones were taken on interception, after which the names of the accused persons, Kafait Ullah Khan and Abdul Rashid, surfaced.
It was further alleged that the Pakistan-based intelligence operative (PIO) has an Indian handler, who collects information regarding the deployment of the Army and the BSF in Jammu & Kashmir and passes the same across the border, which can be hugely detrimental to national security. The handler was believed to have a pan-India network of informers who comprise security personnel and private persons.
Being a matter of national security, the concerned mobile numbers were taken under interception. As per the intercepts, Kafait Ullah Khan was based in the Rajouri District of Jammu & Kashmir, and Abdul Rasheed was serving in the Border Security Force. It was revealed that Kafait Ullah Khan was working as per the instructions of the PIO. Abdul Rasheed passed on secret information to Khan in lieu of money, who then forwarded the same to the PIO.
Details of Arrests and Recoveries
Furthermore, during the investigation, it was found that Kafait Ullah was a resident of Manjhakot, District Rajouri, Jammu and Kashmir and Mohd Rashid was a serving BSF official and was staying in a rented accommodation outside the BSF Campus. Information was received that Kaifaitullah was planning to travel somewhere out of Manjakote. On November 25, 2015, a team apprehended him from New Delhi Railway Station on the basis of the information.
During his search, some important/sensitive documents related to the Army were recovered from his possession, the police had said.
During interrogation, he admitted his involvement in spying for Pakistan and also the involvement of some security personnel. A mobile phone used by him for communicating with his associates was recovered.
Further interrogation revealed that he had travelled to Pakistan, and he was again planning to visit Pakistan. His passport having details of his Pakistan visit, was recovered. A recommendation letter from a so-called Jammu Kashmir Freedom Movement organisation, requesting the Pakistan High Commission to issue a Visa to him, was also recovered.
His interrogation further revealed that he was doing all this at the instance of one Faizal Ur Rehman, an agent of ISI in Pakistan, and he was getting money for the same. He was arrested in the instant case on November 26, 2015, and his disclosure statement was recorded.
Further, a search was also conducted at the residence of Abdul Rashid, who is serving as Head Constable in the Intelligence Wing of BSF posted at the office of DIG, Sector-HQ, Rajouri, J&K, which had led to the recovery of important documents related to the Indian Army. Thereafter, on November 29, 2015, he was arrested in the ongoing case.
He also admitted his involvement in spying for PIO, and he was in contact with PIO Faisal Ur Rehman through WhatsApp, Viber, and Skype. After his phone was checked, some WhatsApp messages between Kafait Ullah Khan and him were found, which read: “Iss k barey mein koi khabar milti hai tu batain k border area k gaon ke kuch logon ko train ker rahay hain ke who check kerein k agar koi fauji nazar aye tu usey check kerein k who asal mein fouji hai ya militant cross ker k a raha hai (Please provide any updates regarding reports that residents of border-area villages are being trained to verify the identity of military personnel–specifically to distinguish between actual soldiers and militants crossing the border)”.
“Check kerein k army walay LOC k villages main kitney logon ko training dey rahay hain…villages ka naam pata hain tu batain, Bhai jan border area pay army walay kuch villagers ko training dey rahay hain (Please check how many people in villages along the Line of Control (LoC) are being trained by the army. If you have the names of these villages, please share them. Reports suggest the army is providing training to some villagers in the border areas)”.
“Laser light security system lagaya hai border pay iss k barey main pata ker k batao (Please inquire about and provide information regarding the ‘laser light security system’ that has reportedly been installed along the border)”.
They further disclosed the names of three persons, namely Mohd Saber Khan, as the mastermind, a Cyber expert who is a teacher in the district. Rajouri and posted in the Election Cell in the District. Rajouri, J&K, Manawar Ahmed Mir, an Ex. Army official and Fareed Ahmed, a serving army official who provides information related to the deployment of the Indian Army.
The information collected by different agents was being passed across the border by Mohd Saber Khan through email, WhatsApp & Viber. The accused, Abdul Rashid Khan, was also taken into police custody.
On the basis of disclosure of the accused persons, namely Kafait Ullah Khan and Abdul Rashid, on December 6, 2015, the accused Farid Ahmad alias Fareed Khan alias Surgeon, an army official, was arrested from 17 JAK LI Unit, Sukna, Siliguri, West Bengal and found indulging in anti-national activities.
Call Details of the recovered numbers and other numbers of accused persons and ISI agent Faizal Ur Rehman for the period of the last year were obtained from the concerned mobile operators, and scrutiny revealed that accused Kafait Ullah Khan was in contact with Faizal Ur Rehman, the police alleged. (ANI)
(Except for the headline, this story has not been edited by Asianet Newsable English staff and is published from a syndicated feed.)