Delhi court acquits 5 'Lashkar-e-Taiba' men, says mere recovery of SIM used for calling Pakistani number insufficient to prove terror plot

A Delhi court has said that mere recovery of cellphones and SIM cards used for communication with a Pakistani number is not sufficient to prove terror plot or conspiracy when there is no other evidence to prove such terror link [State v. Mohd Shahid & Ors]. .Additional Sessions Judge Dharmender Rana, therefore, acquitted five men accused of terror charges and being Lashkar-e-Taiba (LeT) members.The accused Mohd Shahid, Mohd Rashid, Ashabuddin, Abdul Subhan and Arshad Khan, a Pakistani resident — all of whom faced trial under Sections 120B (criminal conspiracy) of the Indian Penal Code and Sections 18 (conspiracy for terrorist act), 18B (recruiting a person for terrorist act) and 20 (member of a terror outfit) of the Unlawful Activities (Prevention) Act, were exonerated by the Court. .The Case.Subhan and Ashabuddin were arrested in 2001 by the Central Bureau of Investigation (CBI) on the allegation that they were carrying a consignment of RDX, AK56 rifles and other arms in Santhalpur, Gujarat. They were subsequently convicted and after the completion of the sentence, Subhan was released in 2010. In 2011, communal riots took place at Gopal Garh, Bharatpur in Rajasthan where several members of a particular community were killed. Subhan, it was alleged was a member of LeT and wanted to avenge the riots..In order to materialise his plans, Subhan allegedly contacted Ashabuddin, his nephew, who was serving time in a kidnapping case in Kolkata. It was alleged that Subhan was plotting a kidnapping bid to fund his terror plans. Another purported motive was to seek guidance from a Pakistani handler in order to learn the trick of channeling the ransom through hawala route. For this purpose, Subhan met Ashabuddin and Arshad, a Pakistani prisoner lodged in the same Kolkata jail in 2013..The prosecution said that Arshad was in touch with one Javed Baluchi of Pakistan and passed on his number to Ashabuddin who forwarded it to Subhan. Rashid, who was stated to be “highly motivated” towards waging a “Jihad” was also brought into the equation..Another motivated individual, according to the prosecution’s case, was Shahid who met Rashid in 2013. Subhan had asked Rashid to arrange for a SIM to communicate with Balluchi on the hawala aspect. Rashid in turn asked Shahid to arrange for the SIM, which was consequently procured and communication was made with Balluchi. The conversations were intercepted and a case of conspiracy was unearthed by the police..Scrutiny and acquittal.After examining the statements of witnesses and law on conspiracy, Judge Rana highlighted “gaping holes” in the prosecution’s version of events.Besides the recovery of a few cellphones and SIM cards, intercepted conversations and entry in the visitor’s log of Kolkata jail, it found no other incriminating evidence, sufficient to establish the prosecution case, which was seemingly based on “surmises and conjectures” rather than credible evidence..“Mere recovery of the mobile phones and SIM cards used to converse amongst each other or converse with a Pakistani number is not sufficient to prove the existence of any conspiracy. It is rightly pointed out by the defence counsel that there is nothing on record to establish that the above said Pakistani number belongs to the dreaded terrorist Javed Balluchi,” the Court held..The investigating agency was stated to have not brought anything to prove the identity of Balluchi.“I have no hesitation in observing that the investigating agency has made no efforts to establish the identity of obscured entity known by the name of Javed Balluchi and it is not even clear as to if some person by the name of Javed Balluchi actually exists in Pakistan or some mischievous person was acting under the fake identity,” it pointed out..LeT tag dropped.The charge of the accused being LeT members was dealt with by the Court in the light of the intercepted calls, which it had already discarded.“Once the intercepted conversations available on record is discarded, there is no material available on record to connect accused persons with LeT. Therefore, I am convinced that prosecution has miserably failed to prove on record that accused persons were member of banned terrorist organisation Lashkar-e-Taiba and they accordingly deserves to be acquitted for the charge of offence punishable under Section 20 of UAPA,” held the Court..Senior Advocate Maninder Singh along with Advocates Dinhar Takiar, Harsh Vashisht, Sahib Kochhar and Anshika Batra besides Advocates Mehmood Pracha, Jatin Bhatt, and Advocates M S Khan, Prashant Prakash and Qausar Khan represented the accused persons.Additional Public Prosector Irfan Ahmed represented the State..[Read Judgment]