P  .  O  .  T  .  A

Production of Terrorist Act, Gujarat.

 

How does one declare a war on terrorism if there are no terrorists around? In Gujarat, this logical hurdle is easily surmounted. Create them first and then declare war on them so that  the "hapless citizens" can vote you to power as their sole savior! Till October, 2002, Gujarat had no "terrorist" of any kind but by the third week of January, 2004, Gujarat now has around 180 "hardcore/ anti-national/ Jihadi" terrorist in its Jails; i.e. in a period of 15 months, Gujarat has produced and arrested nearly 180 hardened Islamic terrorists, an average of 12 terrorist per month. A good rate of production by any Indian standards thanks to the potent productivity under P.O.T.A. The following table will indicate the growth rate of terrorism in more details:

 

Sr. No	FIR No. Date and Police station     (1)	Number of accused   (2)	Date of Official Arrest (3)	Days of illegal detention prior to arrest (4)	Offense     (5)
1.	DCB I FIR No.23/2002; 30th Sept 2002 at Gaikewad Haveli Police Station.   Note: In this case, Sameer Khan & 12 others were arrested on 1st October, 2002, on  the alleged ground that they had plotted to assassinate Narendra Modi. Sameer Khan was killed in an "encounter" with the Police on 22.10.2002.   All accused discharged by Sessions Court Ahmedabad on 2.1.2004 holding that no prima facie case was made out	24   Yakin Ahmed M Salamasudin Guru Ramanlal Vyas Majboor Rahaman Abdul M Pathan Abubakar Haji Ahay Ram Sharma Ajij Abbasi Baheralam Pathan Sahistakhan Gulam Khan Sinkalbhai andhar	1.10.02	13 arrested. 6 of them detained for 4 to 6 days	120B/121/121A/ 122 ..IPC + …     (NO  POTA)
2.	DCB  FIR  dated 5.10.2002.     (Allegations of conspiring to kill Asoke Bhatt and Bharat Barot during Rathyatra in July, 2002)     Charge Sheet filed on 2.1.2004 in the Court of G R Udhwani	12 Vikram alias M Ali Fatima bibi Alam Khan Amir Khan Mamu Sayed Laxmi Changil Omprakash Parmar Manoj Parmar Rajesh Chota Shakeel Dawood Ibrahim	6.10.02		120B/121/121A/ 122..IPC + POTA
3.	DCB I FIR No. 6/2003; 4th April, 2003 at Gaikwad Haveli Police Station   (ISI Conspiracy case for Waging war against India etc.)	82	4.3.03 onwards	44 arrested. Detained between 15 to 30 days	120B/121/121A/ 122..IPC + POTA
4.	DCB I FIR No. 11/2003; 5th Nov. 2003 at Gaikwad Haveli Police Station   (Fidayeen case; AK 47 recovered from Juhapura flat..)	8	4.11.03	4 arrested. Two Detained for 3 months	120B/121/121A/ 122..IPC + POTA
5.	DCB I FIR No. 16/2003; 11 Dec. 2003 at Gaikwad Haveli Police Station   (Plotting to murder Jaideep Patel; case…)	5	11.12.03	5 detained between 2 to 5  days.	120B/121/121A/ 122..IPC + POTA
6.	Godhra case:  CR No. 9 of 2002 at Godhra Railway Police Station	123	27.2.02 onwards	75 arrested from 27.2.2002 onwards	302IPC+ POTA
7.	Haren Pandya murder case + Jagdish Tiwari attempted murder case.	19	2. 4.2003 onwards	15 arrested	…307 +..302IPC + POTA
8.	Akshardham case	34		6 arrested	302IPC + POTA
9.	Tiffin Bomb case	21		17 arrested	…IPC + POTA

Table-1: List of POTA cases against the members of the minority community.

The experiment with POTA had however started long before the first arrests were made on 6.10.2002 under POTA in the conspiracy case to kill Asoke Bhatt and Bharat Barot. In fact it started with the burning of the S6 coach of Sabarmati Express.

 

              On 27th February, 2002, the S6 Coach of Sabarmati Express was gutted in fire near the Godhra Railway station and 59 Karsevaks had died in the inferno. The FIR was lodged on 27th itself by the Driver of the Sabarmati Express. After registering the criminal case under various sections of the Indian Penal Code, the Government invoked the provisions of section 3(1)(a) & (b) and 3(2) of POTA in the said case on 3.3.2002. However on 25.3.2003, Shri K. C Bawa, Dy. Supdt. of Police, filed an application before the Railway Court, Godhra to keep in abeyance the offences under POTA for the time being  on the ground that he has received  legal opinion of the Gujarat Government  according to which it was not appropriate to take action  under  POTA under the existing circumstances. Thus, on and from 25th March, 2002, POTA was revoked in the Godhra case. On 22nd May, 2002, the first charge sheet was filed by the Police in the Sessions Court Godhra. The last paragraph of the said charge sheet was significant:

 

……Without thinking of the consequences of communal hatred and violence by instigating and exciting hatred, they attacked the passengers and the coaches of Sabarmati Express with stones and set on fire the coach No. S – 6 by putting inflammable liquid like petrol and as a result, 59 passengers which include men, women and children were burnt alive and killed. Around 48 men, women and children were grievously injured due to fire and stone throwing and thus an attempt was made to kill them.

              Thus, the accused have completely burnt down the coach No.6 of Sabarmati Express and caused damage to coach No.5 and coach No.7 and thereby caused loss of property of railway to the tune of Rs. 17,31,250/- and also caused loss of property  of the passengers.

 

              The aforesaid act on the part of accused is intended to cause communal disharmony between Hindu and Muslim community and to disrupt public peace and is aimed at provoking Hindu outburst without thinking of its consequences on the people all over the state of Gujarat and districts and villages and the said action amounts to breach of notification No. U/MKP/MJS/VS/433 dated 14-2-2002.

 

The conclusion arrived at by the Police have all the ingredients to frame charges under POTA but POTA was not invoked even while filing the charge sheet! Why did the Government of Gujarat become suddenly magnanimous towards the "killers of the Hindu Karsevaks"? The reason is not far to see. Till that month, i.e. May, 2002, thousands of Muslim men, women and children had been brutally massacred all over Gujarat  and crores worth their property had been destroyed. The entire Muslim community in Gujarat was terrified and terrorized by the organised pogrom. Thousands of FIR (though not properly recorded) had been registered against several hundred accused who were from the majority community. If POTA were to be invoked for the Godhra accused at that point of time, it would become most difficult to avoid invoking the same against the accused of the Post Godhra riots. So quietly, the Government withdrew the POTA charges from the Godhra accused to let some time pass… At this stage it would be interesting to compare the allegations made by the Police against the Godhra accused with the allegations made against the accused in the Naroda Patia case

 

             

Place                                          :              Naroda – Patia

Date of offence              :              28th February, 2002

Offence under      :              sections 143, 147, 148, 149, 436, 395, 302  & BP Act 135(1)

 

THE COMPLAINT :

 

I, B. K. Solanki, Police Sub-Inspector, service Naroda Police Station, Ahmedabad City. On behalf of the State, the facts of my complaint is that recently the Karsevaks, who had gone to Ayodhya in connection with construction of Ram Mandir, were returning back by the Railway and the running train, which had started from the Godhra Railway Station, was stopped by a mob belonging to the Muslim community and after detraining the Driver, had launched a murderous attack on the Karsevaks and other passengers who were sitting in the Railway compartment with the dangerous weapons and had destroyed the coaches and set it on fire because of which several women, men and children had died and the Vishwa Hindu Parishad had today given a call for Gujarat Bandh in connection with the above incident today….

 

Thus , today, on 28.2.2002, during the Gujarat Bandh call, between 12/0 hours and 19/30 hours a mob of 15 to 17 thousand people led by active workers of V.H.P. and B.J.P.  in which Kisan Kirani, P.J.Rajput, Harish Rodera, Babu Bajrangi and Raju Chobel were shouting Maro-Kapo (Kill-Kill) and by instigating the mob, the persons from the violent mob  had, destroyed, looted and set on fire the ST Patia Nurani Masjid, the nearby Muslim residential area, the shops of the Muslim Community in front of the Nurani Masjid and in the so called Hussein ni Chali next to the ST Workshop and the Bhagyodaya Hotel near the Thakkarnagar Char Rasta and other shops in the neighborhood  and had killed a total of 58 women, males and young children by frontal assault against each other,

 

in the area under the Naroda Police Station,  in connection with  the  recent incident of the Hindu killings at the Godhra Railway Station, is my complaint for investigation. My witnesses are my police personnel, the policemen at the points and the victims of the incident and the shopkeepers.

 

                          This is my complaint, which is true.

 

 

 

 

Sign of the Complainant in English.

In my presence

Sign in English

Police Inspector

Naroda Police Station

Ahmedabad

 

It may be noticed that the 1st Paragraph of the FIR in the Naroda Patia case is almost the same as that of the last paragraph in the Godhra charge sheet. An FIR filed by a Police Officer on 28th Feb. 2002 virtually recreates the reaction theory of the Chief Minister! Here however, the reaction takes place on 28th Feb. 2002 whereas the "action" took place on 22nd May, 2002! Be that as it may, POTA was never invoked in Naroda Patia case or hundreds of similar cases where the accused were hindus.

 

But that was not the end of the story. On 18.3.2003, the Investigating officer filed another application to invoke and apply POTA against the accused in the Godhra case and from the said date, charges under POTA were framed against them. During the period of one year, needless to point out that most of accused in the post riots cases were released on bail whereas except one, none of the 75 accused in the Godhra case were released on bail. After POTA was invoked against them, the chance of getting any bail vanished. This perhaps is a glaring example of equal protection of law guaranteed by our constitution!

 

But the above is not the only glaring example. Reverting back to the recent cases of POTA as enumerated in the Table-1, on reading the FIRs or Charge sheets filed in those cases, the opening allegations/imputations invariably reads as under:

 

"The investigations revealed that on 27.2.2002 some Hindu Kar Sewaks while travelling in a train were set ablaze near Godhra Railway Station.  Thereafter, riots took place in various parts of Gujarat particularly in Ahmedabad city. In these riots which continued unabated till the last week of May, 2002, numerous lives were lost and many mosques were destroyed. The Muslim community felt that they had been very adversely affected in these riots. This in turn inculcated in them a strong feeling of injustice, discontentment and yearning for revenge.

 

In this environment, Mufti Sufiyan Ahmed Patangia (A-13) (absconding), a Muslim cleric used his powerful oratory skills and the ability to inspire confidence in the minds of the Muslims to inflame hatred against Hindu community. He exploited the sentiments of the Muslim by showing to them video CDs and literature published by Jamat Ulema-I-Hind and other radical Muslim organizations. These CDs depicted burnt dead bodies of the victims of Naroda Patia, burnt houses, burnt pages of Quran and plundered Mosques. The CDs also depicted the inhuman and disrespectful burial of dead bodies of those killed in riots. Further, Mufti Sufiyan (A-13) during his religious discourses urged the Muslims to involve themselves in Jehadi activities like planting of bombs and targeting VHP and BJP leaders with a view to strike terror in the minds of a section of people viz. Hindus so that such riots against Muslims may not be repeated in future. By all these action he succeeded in instigating a strong feeling of ill-will against the members of Hindu community especially leaders of BJP, VHP and Bajrang Dal. Mufti Sufiyan (A -13) also strengthened his relations with Rasool Khan Parti (A-18) (absconding), one of the wanted criminals of Ahmedabad presently residing in Karachi, Pakistan…"

 

The above lines were extracted from the Charge sheet filed by CBI in the Haren Pandya murder and Jagdish Tewari attempted murder case where 15 persons have been arrested under POTA. The aforesaid two paragraphs constitute the first two paragraphs of the Charge Sheet No. 3 filed by CBI on 8.9.2003 before the Special POTA Court at Ahmedabad. Shri Haren Pandya, ex home minister, was killed on 26th March, 2003 at Law Gardens, Ahmedabad whereas Shri Jagdish Tewari, a leader of VHP was fired upon on 11.3.2003 in his medical shop at Rakhiyal, Ahmedabad.

 

Thus in the above case and several other cases filed under the provisions of POTA, the "motive" alleged against the muslims for committing terrorist acts is their urge to take revenge for the brutal killings of muslims in the post Godhra riots with  a  view  that  no  such  riots  take  place in future!

 

This allegation sounds strangely familiar since the Chief Minister of Gujarat State and other leaders of BJP and VHP had almost said the same thing to account for the innumerable deaths of the Muslim men, women and children in the Post Godhra riots. And at that time also the deaths of the Hindu Karsevaks in the S6 coach at Godhra was cited as the reason for provoking the Hindu masses to commit the most gruesome killings from 28 February 2002 till the end of May 2002.  The action and reaction theory was touted at that point of time and in fact as we have extracted the FIR in the Naroda Patiya case, the FIR itself recites the Godhra deaths as the reason for the mob going on rampage in Naroda Patiya. If that could be the logic at that point of time, how does the urge to take revenge for the killings of the Muslims become an act of terrorism? Why doesn’t the theory of action and reaction fail when the accused are the Muslims? Another example of the equal protection of law in Gujarat!

 

 

In all the cases listed in Table-1, there is one exception. In the case at Sr. No. 1 (FIR No. 23/2003), 14 persons were arrested on the allegation that they had plotted to kill Narendra Modi. Strangely, the provisions of POTA were not invoked. The said case was discharged even at the stage of framing the charges as the Sessions court did not find any prima facie case. Infact some of the observations of the sessions court are eye opening:

 

• After going through case papers submitted by DCB, the court says "all these things appear to be fancy"

 

• Regarding the manner in which the DCB had registered the FIR, the first police document which puts the law in motion, the court observed that the first two pages giving details of Pakistan’s proxy war against India, are an "essay rather than a complaint of serious case."

 

• Commenting on the application of section 121 (conspiracy to wage war against nation) against the accused, the court, after examining the evidence and arguments of the prosecution, observed that "it is a most serious offence, having effect on the security of our nation but merely because the section is applied, the court cannot frame the charge."

 

• About applying section 122(collecting arms for waging war against the country), the court observed that there is no collection of arms or an attempt to do so and "no allegation against any of the accused that he is involved in this type of activity, so no offence can be made applicable against of the accused."

 

• The FIR alleged that the accused had helped Samirkhan in procuring a fake passport from Bhopal in the name of Nawabkhan which was used by him to travel to Pakistan on January 13, 1998 for getting terrorist training. However, the court noted that the Regional Passport Officer, Bhopal, T.D.Sharma had in his statement to DCB stated that the passport was issued to Nawabkhan in March 1998.Hence, it held that the fake passport was not a subject matter of the conspiracy. It also observed that Sharma had stated that issuing of the passport was a result of a clerical mistake, "but nothing is brought out that any mistake has been committed by the accused."

 

• The DCB has in the charge-sheet, attached print-outs of e-mails allegedly received Pathan. The court on examining the evidence found that though they were an admissible piece of evidence, "still there is nothing to involve the other accused after departure of Samirkhan in so called police encounter. The court further observed "I may state that to bring out printouts does not require any skill and any person of a normal common sense, after training of a few hours, can manage (to do it)"

 

The above observation of the Session Court in a case where no less a person but Shri Narendra Modi himself was alleged to have been the target of a conspiracy to be eliminated, speaks volumes of the cases of terrorist conspiracy that are being filed in the State of  Gujarat  against   the  members  of  the  Muslim  community. It may be recalled that the main accused in the case Shri Sameer  Khan  Pathan  was  killed  in  an   encounter  during  his detention.

 

 

What then is the modus opernedi to make out a case against the accused under POTA? A consistent pattern emerges while analyzing the facts of detention of the accused in all the cases listed at Table-1.  The accused and several more persons  are detained for days or even weeks prior to their actual arrest being shown on record. The entries in the column (4) of Table-1 would indicate the approximate period of such illegal detention. During this period of illegal detention, the persons are coerced, threatened and ultimately promised of liberty if they "confess" or atleast point a finger at some other persons. Failure to do so results in longer detention. Ultimately, several individuals to save themselves become  "witness" and sign on the dotted line against some other persons destined to become a "terrorist". After obtaining such "evidences", the persons are formally arrested under POTA and Police remand follows. During this legal period of remand, the accused are subjected to third degree treatment and "confessions" extracted under the threat of fake "encounters" .The fate of Sameer Khan Pathan is always a sufficient reminder for the hapless "terrorist" to resist giving a "confession". Thereafter the media does the rest of job. Hundreds of terrorists are thus created under POTA.

 

In the case at Sr. No. 5  listed in the Table-1, five muslim youth were shown to be arrested on 11th December., 2003 though they were detained for periods between 2 to 5 days prior to 11th December. This fact was brought to the notice of the POTA court who refused to grant police custody on 12th December, 2003 but sent the accused in Judicial custody. The State filed an Appeal before the High Court which passed an exparte order on 23rd December, 2003 granting police remand for ten days. The Police took the accused in custody on 24th December, 2003 and subjected them to third degree methods. The accused had thereafter moved the High Court again complaining about the third degree method and the Court on 30th December, 2003 after recording the statement of the public prosecutor permitted an advocate to meet the accused during the period of Police remand.  The accused informed the their Advocate about the torture they were facing and later on complaints were made to the POTA Court which has recorded the same and sent the accused for medical examination after noting the injuries. This is one case, which was legally followed up exposing the modus operendii. The State of Gujarat therefore does not "misuse" POTA but actually uses POTA to create "Terrorist". Whether the stories spread around by the media about the "terrorist plan of the Jihadi terrorists" have terrorized the majority community or not, the Muslim Community is totally terrorized by Police action. Strange are the ways of rule of law!

 

Another aspect that cannot be lost sight of is the fact that POTA has been applied to offenses which by no stretch of imagination be brought under POTA. The most glaring example is the DCB case No. 16/2003 registered on 12.12.2003 where by now seven have been booked under POTA. The primary allegation is that the accused were conspiring to kill Dr. Jaydeep Patel. Taking this allegation on its face value, how does the offence of conspiring to murder a person come under POTA? Compare this case with the case of conspiring to murder Shri Narendra Modi where Sameer Khan was killed in the "encounter". Why was not POTA applied in the said case. The offence to conspire to murder Jaydeep Patel would fall within the POTA offences but to conspire to murder the Chief Minister Shri Narendra Modi does not! These are the glaring contradictions in Gujarat.

 

Prepared by Dr. Mukul Sinha on behalf of Jan Sangharsh Manch, 104 Maharanapratap Complex, Ellisbridge, Ahmedabad-6. Dated 15.1.2004