Terrorists escape for wrong sanctions

Dealing with flaws, not laws, police weaken cases against terror suspects
ANANYA SENGUPTA
New Delhi, Aug. 30: Even if you’ve been proven to be an outlaw in India, there’s always cause for comfort — in the law itself and from those who are meant to invoke it.

Take the case of suspected Hizb-e-Islami militant Ayaz Ahmed Shah, who was arrested by Delhi police’s special cell with 3.5kg of explosives in 2004 and let off by the courts in January 2009.

Shah got away not because he was proved innocent; he went free because the police were dealing with flaws rather than laws.

Or, to put it more bluntly, they got sanction for prosecution under the wrong law from the wrong authorities — where they should have used the explosive substances act, they applied the explosives act; whereas they should have gone to the relevant district magistrate, they went to the police commissioner. Now the two provisions might sound similar, or indeed the same, but in fact there exists a wide enough gulf between them to let the guilty slip through.

Additional sessions judge R.K. Jain came down heavily on the special cell for such a slumbering blunder on the basics of terror law while acquitting Shah. “The special cell officers were not vigilant enough to procure required sanctions against the accused, resulting in lapses. They treated it as just another case under the arms act. In any case, the benefit of all these lapses has to be given to the accused. Accordingly, I acquit the accused for the offences he is charged with.”

But it now turns out that many more might be in line for freedom, courtesy this critical legal lapse by the special cell; officials have failed to take due sanction under the explosive substances act in close to 40 terror-related cases since 2002. Most such cases are in the final stages of trial and there is little the police can now do to make amends.

Had he been booked, as he should have been, under the more stringent explosive substances act, Shah couldn’t even dream of getting bail, much less acquittal.

Shah’s case has set an alarming precedent for prosecuting agencies — err on as little as a word of the law and it can become an ignominious and embarrassing chapter.

Records show that after the discrepancies in this case were highlighted by Shah’s counsel, M.S. Khan, last year, the police have been scrambling to file central sanctions in cases where they have spotted similar faux pas. The law states that no court shall proceed to the trial of any person for an offence against this act except without the consent of the district magistrate.

The confusion can be traced back to two sets of laws, which the super sleuths overlooked. While the accused were all booked under the explosive substances act, which pertains to materials for making any explosive substances, they got sanctions from the police commissioner under the explosives act, which relates to an act to regulate the manufacture, possession, use and sale of explosives.

These are two different laws with separate sanctioning authorities.

According to the statute, the police commissioner is authorised to sanction cases pertaining to the explosives act, but the district magistrate authorises cases under the explosives substances act.

Thus, in Ayaz’s case, where the commissioner had sanctioned the trial, the court found itself incapable of going on with the case and acquitted him.

“The provisions of both the acts are very clear and the police need to act with great caution as hardcore criminals are involved. What happened shows the police’s callousness and exposes dereliction of duty on the part of the police. They might have overwhelming evidence to nail the accused, but unless there is proper sanction, the case is bound to fall apart and the terror suspect will be acquitted. If an elite anti-terror unit does not know the basics of law that it is claiming to protect, then obviously the terror accused will use the benefit of the technical provision. It’s a matter of great shame for the police,” said noted criminal lawyer Majeed Memon, who defended those accused in the 1993 Bombay blasts.

Khan, who is also the lawyer for another terror suspect, 46-year-old Nazir Ahmad, who was arrested by the special cell in 2005 and booked under the explosive substances act for carrying RDX, has also exploited the terror cops’ negligence.

“We have already shown the court that the trial was invalid and in the next few days when his final hearing comes up in court, I am sure he will be acquitted,” said Khan.

Sources say that since the lapse came to light in Ayaz’s case in 2008, it took the police seven months to get back to court with a satisfactory reply to the defence query about the lapses in sanction. Sources in the department say that Delhi police commissioner Y.S. Dadwal held a high-level meeting with his senior officials and it was then that the process of getting the appropriate sanctions was started.

“According to the principle of double jeopardy, no one can be prosecuted for the same crime twice. The lawyers of the accused are going to invoke this law to get their clients out when the prosecution presses for a fresh trial. The mess they have landed themselves into has become a tangled web,” said Memon, adding that a sanction is a condition precedent for initiating criminal proceedings in the court of law and not subsequent to it, so no fresh trial can be initiated by the prosecution.

Ahsan Untoo, head of the International Forum for Justice as well as the Human Rights Forum of Jammu and Kashmir, however, sees a larger conspiracy in the special cell’s inability to get proper sanctions.

“They are not going to the central authorities, in this case the district magistrate, because they have no case against these people. If the police go to the central government, they have to furnish evidence, which they don’t have. So, the easier way out is to go to the police commissioner. It’s not confusion but conspiracy because in most of these cases, innocent Kashmiris are implicated. In the fight between RAW and ISI, poor Kashmiris are being victimised,” Untoo said.

It is known that political criminals escape action by the law because their mentors who are supposed to give the sanctions sit on the files.
But if terrorists criminals escape justice because of negligence on the part of the police to get proper sanction, this is unpardonable.
Since most of the police force is made up of people who have been given the post either for vote bank or for money it is understandable why these flaws are occurring.
It is the duty of their bosses to train them so that when FIRs are lodged an iron clad case is made. Unfortunately, the FIR has become an instrument to earn money from the rich and to harass the poor and so the police do not understand the importance of an FIR.
An officer who files a case under wrong provision and which allows a criminal to escape justice should be suspended as he may have done it intentionally to allow the terrorist to escape.
An enquiry by some other department should be conducted as a department enquiry will always find him pure as Caesar's wife