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#India #Deathpenalty #Humanrights and Bhullar case

Writer on women’s issues, human rights, environment and culture

In 2011 I wrote a story covering a demonstration to protest the impending execution of SikhProfessor Devinderpal Singh Bhullar in India. Bhullar’s mercy petition, filed in 2003, languished for eight years until India’s President rejected it in 2011. Since that time, not much has changed. In August 2013, the Supreme Court of India dismissed a call to review Bhullar’s death judgment. A decision could have resulted in a commutation of his sentence to life imprisonment.

Certain news outlets have qualified Bhullar as a terrorist who acted as a member of the Khalistan Liberation Force. Their reports imply that Bhullar took part in bombing the All-India Youth Congress office in New Delhi. This take leaves out a whole lot of back story.

 

2014-01-11-BhullarFinal.jpg
Image courtesy of RVR Associates
 

Bhullar’s supporters maintain that the police targeted him because of his outspoken opposition to the treatment of the Sikh majority in Punjab. It has also been alleged that Bhullar’s father, uncle, and several of his students were kidnapped by the Punjab police — never to be found.

The mental health of Bhullar has severely deteriorated during his 19 years in prison. A prime factor in his decline has been his placement in solitary confinement. Just as activists in America have called out the solitary confinement of Private Manning and others as cruel and inhuman punishment, the Bhullar case has been on the radar of numerous human rights groups.

Among them have been Human Rights Watch and Amnesty International. The latter has been proactive on Bhullar’s behalf since the 1990s. I reached out to two of Amnesty’s India “specialists” to get insights into what they believed the most recent developments of 2013 mean.

Govind Acharya explicitly articulated his thoughts about capital punishment in India, and what he called the “uptick in death penalty convictions” in the past few years. He said it had been part of a “political theater move” for the central government to take a visibly tougher stance on terrorism.

For James Mutti, one of the key questions was India’s suppression of minorities. He pointed to the government’s use of the judicial system to formally eliminate voices of opposition. Despite the fact that one of the Supreme Court magistrates had acknowledged that Bhullar’s confession was forced, there has not been a formal reaction to an international call for “no execution” or to granting a retrial based on United Nations standards.

Sukhman Dhami, co-director of Ensaaf, an organization that focuses on “state crimes in India with a focus on Punjab,” talked with me about the ongoing struggle to achieve “justice” for Bhullar. In April 2013, Ensaaf was part of a group that wrote the U.S. Department of State and the U.S. Commission on International Religious Freedom to express concern about the actions of the Supreme Court of India. In their letter, they outlined the trajectory of Bhullar’s storyline. It included his 1994 escape to Germany — where he requested political asylum — to his 1995 deportation by the German government. A German administrative court found the deportation to be illegal two years later.

We specifically drilled down on why Bhullar was put in solitary confinement. Dhami informed me:

Authorities put Bhullar in solitary confinement to punish him. It is widely accepted among the international human rights community and health professionals that such confinement causes irreparable psychological harm and should be outlawed. United Nations experts on torture have called for a complete ban on solitary confinement, and even in the rare circumstances where it might be permissible, it should never exceed fifteen days. In Bhullar’s case, he is suffering from severe mental health issues, and by several accounts, he no longer has the mental capacity to comprehend the circumstances of his detention or pending execution.

I asked Dhami what he felt the treatment of Bhullar’s litigation said about India. He responded:

The handling of this case demonstrates India is still struggling with its commitment to the rule of law and human rights. The law under which Bhullar was convicted, TADA, was widely criticized by the international human rights community at the time as violative of fundamental due process norms. It created presumptions of guilt, allowed for in camera courts, secret witnesses and arbitrary detention for two-year periods — which were renewable. TADA was ultimately repealed, but since Bhullar is accused of committing crimes under TADA prior to its repeal, it was retroactively applied. India tortured, extra-judicially executed, and disappeared thousands of Sikhs in Punjab during the 1980s and early 1990s — abuses facilitated by TADA and similar laws. Only a fraction of these violations have been investigated; none of the senior architects of these crimes have been brought to account. By 2013, India should have developed its capacity and commitment to respect human rights and basic legal norms. The treatment of Bhullar and the ongoing impunity for the gross human rights violations in Punjab clearly demonstrate that India has a long way to go before it meets international standards.

Regarding Bhullar’s fate, Dhani believes that the likelihood of the Indian government releasing him is “not very high.” He underscored, “This case is a political case, and the government wants to send the message there will be no quarter for its political enemies.”

When I reached out by e-mail to Gurpatwant Pannun, legal adviser to Sikhs for Justice, he had plenty to share about the case. In a very complete response, filled with legal references, he wrote the following [italics are his]:

As the matter stands now, the Supreme Court of India in August 2013 confirmed the death sentence awarded to Professor Davinder Singh Bhullar. They refused to review its April 12, 2013 decision wherein the court rejected Bhullar’s plea that his death sentence be commuted to life imprisonment. Presented were the grounds that he underwent great agony for eleven years awaiting the President’s decision on his mercy plea. This, along with his time spent in prison and solitary confinement, have badly affected his mental health.

Pannum explained that Bhullar has chronic psychiatric problems and was admitted to a mental hospital in Delhi three years ago, where doctors are treating him. They are reluctant to release Bhullar due to his worsening condition and psychotic symptoms. Bhullar is seen as having “death row syndrome” (a result of the traumatic stress experienced by waiting on death row). Pannum detailed how the European Court of Human Rights, in the case ofSoering v. United Kingdom, has already recognized “death row syndrome” to be in violation of Article 3 of the European Convention on Human Rights relating to torture, inhuman and degrading treatment.

Pointing to the illegality of Bhullar’s confession, Pannun reiterated that the “forced confession was obtained through torture in police custody” and Bhullar’s signature was obtained on a blank paper via a “thumb mark.” Bhullar retracted the confession at his first opportunity. Pannun elucidated that:

As per Indian law, confessional statements as recorded by the investigating officer cannot be a basis for awarding the death sentence. Uncorroborated confession — in any case — cannot be the sole basis for conviction. None of the 133 prosecution witnesses testified against Bhullar. The prosecution could not prove that the confession was obtained voluntarily, as Bhullar claimed that he was tortured by the police during custody. The prosecution failed to provide any evidence corroborating Bhullar’s alleged confessional statement. Justice M.B. Shah in his dissenting opinion rejected the confessional statement as [a] “tailor made confession.”Bhullar was convicted of “conspiracy” while his co-accused were acquitted. As a matter of Indian law, one cannot conspire alone. This makes his conviction against the law itself. The Supreme Court of India openly declined to follow the “beyond a reasonable doubt” standard in Bhullar’s case saying that “it’s only a guideline” and not “fetish.”

The Supreme Court of India upheld the conviction and death sentence in a split decision of 2-1. The dissenting judge not only allowed the appeal against the death sentence but acquitted Bhullar of all charges due to a total lack of evidence — except the confessional statement which was uncorroborated and obtained through torture and retracted by the accused.”

 

Commenting on the conditions of imprisonment, Pannun emphasized:

Bhullar has been detained for the last 18 years in appalling conditions, including solitary confinement. No legal and procedural safeguards against duration and circumstances for solitary confinement were applied in the case of Bhullar — wherein he was held in solitary confinement for no justifiable reason.

Like Dhami, Pannun is not encouraged by the legal process in India. He stressed his belief that “the case only shows the arbitrariness in the Indian judicial system and the double standards by which minorities like Sikhs are treated in India.” Pannun contrasted how those identified as leading the 1984 Sikh genocide in India (a three day killing spree), have been afforded impunity, while Bhullar has languished in jail “in appalling conditions for more than 18 years.”

Hopefully, in 2014, human rights activists will press the court of world public opinion to give the unresolved Bhullar narrative the attention it deserves.

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#India – The Challenge of depicting slain Human Rights Lawyer Shahid Azmi’s life on film#Sundayreading

Keeping it real

By ANAND HOLLA, Mumbai Mirror | Oct 20, 2013,
Keeping it real
Shahid director Hansal Mehta on the challenge of depicting slain lawyer Shahid Azmi‘s life on film and finding comfort in reality.

All through the muchacclaimed film, Shahid, based on the life of slain criminal lawyer Shahid Azmi, one can sense director Hansal Mehta aching to root his reel Shahid (played by Raj Kumar Yadav) in Azmi’s reality.

And when the two worlds meet, we get to see some very moving cinema. Mehta’s choice of shooting in the apartment above Azmi’s modest ground floor residence in Kurla’s Taximen’s Colony — Azmi was killed at point blank range in front of his office, one block away, in 2010 — literally lets the audience into the life of the human rights activist who fought for those accused wrongly in terror cases.

“I wanted to capture the sense of claustrophobia and unkemptness of his home, to familiarise the viewer,” says Mehta. Kumar, who is convincing in his portrayal of Azmi, even “felt” the worlds meet, Mehta shares. “In the scene where Shahid returns after getting a terror accused discharged, a horde of elderly men hug and congratulate him.

This scene was shot in a Pydhonie chawl, where they all knew Shahid. Raj Kumar later told me it felt surreal, because just for that moment, they wanted to believe he was Shahid.”

Sensing the director’s passion, it isn’t hard to understand why he felt drawn to tell Azmi’s story.

After the disastrous Woodstock Villa (2008), Mehta retreated to Lonavala. “I was upset with myself. It was a turbulent time, both professionally and financially,” he says. In February 2010, days after he had moved back to the city, he was shaken out of his trance by a newspaper headline that screamed murder. “I was taken in by how Shahid was just 32, and had had such a fascinating life. I began reading all I could about him,” he says. Mehta then put his 18-year-old son Jai and writer Sameer Gautam Singh on the task of meeting Azmi’s family – his four brothers Tarique, Rashid, Arif, and Khalid, and mother Rehana, who insists that her son looks like Fardeen Khan – to glean as much information as they could.

Mehta concedes that his lifelong obsession to depict the common man as a hero found its apogee in Azmi. Undoubtedly, Azmi’s story makes for a compelling narrative. After surviving the 1992-93 riots as a teenager in Govandi, he underwent arms training in Kashmir but returned home disillusioned. He was arrested a year later for conspiring to kill top politicians, and endured police torture. He was sentenced to five years in prison under the Terrorism and Disruptive Activities (Prevention) Act on the basis of a questionable confession. Lodged in Tihar jail, Azmi completed class 12 and a bachelor’s degree. Other inmates in the jail included Omar Sheikh and Masood Azhar who were released during the Kandahar IC-814 hijacking episode.

What is most heartening, and this is the idea that forms the core of Shahid, is that when Azmi was freed in 2001, he studied journalism and law and chose to fight cases for those wrongly accused of terrorism, pro bono.

Though Mehta admits the film isn’t a classic biopic, he still faced the challenges of making one. However, the director isn’t worried that he has made a hero out of Azmi. It’s not that he was oblivious to the sinister chatter around his protagonist – the laziest accusing Azmi of being an ISI agent.

“Some said Dawood Ibrahim funded him. I found these accusations ridiculous. How can a lawyer blessed by the underworld live in a house that, even today, is in desperate need of a coat of paint? His brothers still live in a 1-BHK,” says Mehta. Thus, when some advised Mehta to paint Azmi’s character grey, he saw no point in it. “What would I achieve by doing that? The film would leave you with nothing.”

The largely favourable response the movie has garnered reassures Mehta. “My motive was to make the audience question their prejudices and the society we live in. I wanted to limit my story to Shahid as a beacon of hope.” This perhaps explains why the lawyer is never referred to by his full name even once in the film. “Shahid could be any one of us,” Mehta points out.

Shooting digitally with natural or minimal light and a unit the size of a cricket team, Mehta restricted the budget to Rs 85 lakh and lent the film a life-like feel.

Of the 17 acquittals Azmi secured in his seven-year-long career, the film touches on only two, and neither includes the 2006 Malegaon blasts or 7/11 train blasts cases.

“We had even shot the courtroom scene in which the Bombay High Court held the Arthur Road Jail superintendent responsible after many 7/11 accused claimed to have been thrashed in prison. But we realised the film was becoming too technical. So, we focused on his first and last cases, both of which he won. I took my decisions as a filmmaker, not as a chronicler,” he says.

In reality, Azmi was a cracker in court. Without breaking into a discourse on victimisation of Muslims (the reel Shahid, however, offers a rather ’emotional’ defense) Azmi, like a battering ram, would ask his questions with muted aggression, until the most elusive of witnesses would give in. What Mehta gets pat down is how Azmi was consumed by the idea of justice.

That said, the film gives no insight into how Azmi chalked out his defense strategies. Mehta has the good grace to admit that he had to dumb down the legal complexities to ensure that the audience doesn’t get put off. “When art is making a statement, it has to be accessible,” he smiles, “We had a lot of material that we didn’t use, because not all of it could translate into a scene. Also, for access to Azmi’s thoughts, I went through a lot of case papers he had drafted in simple English, not legalese.”

As for exploring Azmi’s love track with Mariam in the film (they got divorced before he was killed), Mehta says he didn’t want to delve much into his personal affairs. “A little brush of it seemed enough.”

While the first courtroom scene is closer to reality, the insides of the special sessions court in the second one seems like a grim imagination gone too far. Far from the brightly-lit, surprisingly pleasant venue of the 26/11 trial, the accused in Shahid sit locked in cages. The light is depressingly dim and the witness has no box to stand in; an oppressive image that borders on satire. “But that’s the point,” Mehta lights up. “This courtroom set-up was metaphorical – the crooks are out and the innocents are locked in a cage.” Mehta then takes a deep breath, and says, “Shahid set me free. I lived through him for these two-and-a-half years, and now, he lives inside my head. Somehow, I don’t find my obstacles insurmountable anymore.”

 

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#India- Here is how ,Bollywood Actor Sanjay Dutt escaped TADA #mustread

His other co-accused have all been convicted under the stringent anti-terrorist law on evidence much less damning. Ashish Khetan and Harinder Baweja unearth court records that point to Sanjay’s exact role

Ashish KhetanHarinder Baweja

 

It was probably the most difficult moment of his life. A moment when he stood on a one-way street. There was nothing, nothing at all that he, Sunil Dutt, could do to save his son  from being arrested. The Mumbai Police had found that the actor had acquired deadly AK-56s from Dawood Ibrahim’s brother Anees Ibrahim, and had even had one destroyed after the serial blasts in Bombay that left 257 people dead.

At that moment, there was only one thing Sunil Dutt could do. He picked up the phone and informed the then Police Commissioner AS Samra that his son was returning that night — April 19, 1993 — from Mauritius.

The police picked up Sanjay from the airport, allowed him to sleep on the sofa in one of the officers’ rooms, and at 10am the next day, the then Joint Commissioner of Police (Crime) MN Singh and his deputy Rakesh Maria started the interrogation. Sanjay broke down and narrated the entire story. The same evening, Sunil Dutt and his daughter Priya Dutt met Sanjay in the presence of the police officers. Sunil Dutt was still not ready to believe that his son could have been involved in the blasts conspiracy. Maria told Sanjay to tell his father the truth, and Sanjay conceded that he had been in possession of an assault rifle and some ammunition that he had got from Anees Ibrahim. Sunil Dutt wanted to know the reason why. He was not prepared for the answer: “Because I have Muslim blood in my veins. I could not bear what was happening in the city.” A crestfallen Sunil Dutt left the police headquarters. It was a moment almost worse than the shock of the previous day.

Quite in contrast to what he felt in 1993, Sanjay’s forehead was smeared with a long red tilak on judgement day — November 28, 2006. The air inside the  courtroom was heavy with tension and fear. An ashen-faced Sanjay sat head down next to his friend and co-accused Yusuf Nullwala, whom he had called from Mauritius and asked to destroy one of the AK-56s in his possession. A few rows behind them was 64-year-old Zaibunissa Kazi, another co-accused.

Thirteen years after he was arrested on charges of acquiring three AK-56 rifles, nine magazines, 450 cartridges and over 20 hand grenades — weapons and explosives associated either with terrorists or counter-insurgency forces — the fate of the filmstar was finally to be decided and Sanjay was nervous. Judge PD Kode walked in to a packed courtroom and first summoned dismissed customs officer SK Thapa to the witness box. As customs officer, Thapa had winked while a cache of arms and explosives was smuggled into the country in 1993 for acts of terrorism. Thapa, the judge said, had been found guilty under different sections of  — the Terrorist and Disruptive Activities (Prevention) Act, passed in 1987 to counter acts of terror.

Kode then called out Zaibunissa Kazi’s name. Two of the three AK-56 rifles, some ammunition and 20 hand grenades returned by Sanjay had been kept at her house for a few days. The judgement was as severe as the previous one. She was held guilty under Section 3(3) of . The sub-section defines a convict as one who “conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of a terrorist act or any act preparatory to a terrorist act.”

Tension was visible on the face of Satish Maneshinde, one of ’s key lawyers. He was later to say this to a Tehelka spycam: “The moment she was convicted, I thought Sanjay too would be convicted under .” (See box) He had reasons for admitting this. Unlike his client Sanjay, who had asked for the weapons, stored them, asked for them to be destroyed and even admitted to his association with Anees Ibrahim, Zaibunissa Kazi had only stored them for a few days. Her role was in no way comparable to Sanjay’s and nobody knew it better than Sanjay’s lawyer.

A day earlier, another co-accused Manzoor Ahmed had similarly been held guilty under Section 3(3) of. Manzoor’s role too was clear in Maneshinde’s head: he had been called by gangster Abu Salem — like Manzoor, also from Azamgarh in UP — and the two had driven to Sanjay’s house to pick up the bag that was then kept at Zaibunissa Kazi’s house. Both she and Manzoor face the prospect of spending a minimum five years in jail, if not a life term.

A day after Sanjay’s verdict, two other co-accused, Samir Hingora and Baba Mussa Chauhan, who were part of the chain that delivered weapons to the filmstar’s house in Mumbai’s Pali Hill, were convicted under Sections 5 and 3(3) of  — which deal with conspiracy and possession of prohibited arms in city limits — besides being held guilty under different sections of the Arms Act and the Explosives Act. The nature of the charges and the evidence against Chauhan and Sanjay were similar. Chauhan, like Sanjay, had in his possession three AK-56 rifles, some cartridges, magazines and hand grenades. Both Sanjay and Chauhan had the arms delivered to them by the same person — Abu Salem, who after the serial blasts of 1993 escaped the country and carried out criminal activities in India from abroad before being extradited in 2005.

For those present in court, Sanjay’s conviction under  seemed a fait accompli. But, in what must have been a huge relief for Sanjay and his battery of lawyers, he was convicted under the Arms Act and is thus now in a position to even seek probation which, if granted, will not see him go to jail at all.

No one knows the anomaly of the judgement better than Maneshinde. On the spycam, he says, “When I will be asked by the Supreme Court why everyone else has got  and my client only the Arms Act, I will have no answer.” The statement speaks volumes coming as it does from Sanjay’s own lawyer. Why is the lawyer worried?

SANJAY DUTT: THE CENTRAL FIGURE
Maneshinde and most lawyers familiar with the case know that  was the central figure in the plot. Soon after the verbal order on November 28, 2006, eminent lawyer Mahesh Jethmalani, who had also initially defended Sanjay, wrote in Tehelka that the other accused had not had the benefit of what — in Sanjay’s case — he called the “benign judicial eye”. After all, Sanjay was the one who had asked for lethal weapons from his friend and gangster Anees Ibrahim, who along with his brother Dawood, is among the main conspirators of the 1993 blasts. It was Sanjay who had retained one AK-56 and some ammunition while returning two assault rifles, hand grenades and ammunition. In Manzoor’s case, his car had been used to bring back a part of the consignment from Sanjay’s residence. As for Zaibunissa Kazi, she had allowed her house to be used as a transit point. The weapons were meant neither for her nor for Manzoor. The evidence on record shows that their offence was minor when compared to that of Sanjay who kept three AK-56s and hand grenades for close to a week and continued to retain one assault rifle for almost a month after serial blasts rocked Bombay. Apprehending his arrest, Sanjay had the weapons destroyed and, quite unlike Manzoor, he made seven calls to Anees.

THE MYSTERIOUS SANJAY-ANEES PHONE RECORDS
The crucial information that Sanjay had been calling Anees came from the filmstar himself. Says MN Singh, who headed the investigation, “He himself said that he had made the calls. This information came from him and only then did we get the supporting mtnl printouts.” The printouts showed that seven calls had been made to Anees’s number at White House in Dubai. The police also took a sworn affidavit from the Indian Embassy in Dubai saying that the Dubai number to which the calls were made by Sanjay was indeed that of Dawood’s brother. The police also procured the Dubai telephone directory which mentioned the same number against Anees’s name. Only a few of the over 150 accused in the serial blasts case had been in touch with either Dawood or Anees while the blasts conspiracy was being hatched. Sanjay was one of them. All these records were handed over to the CBI. However, when the time came to pin Sanjay down in court, the CBI chose to omit the record related to the telephone calls in its final submission against Sanjay before the  court. The prosecution’s submission, a copy of which is with Tehelka, reveals that the CBI has not brought the telephone conversation-related evidence on record. Sources in the CBI said that since the court had not accepted the telephone records as evidence against Sanjay, they decided to delete them from their written submission. Maneshinde also revealed that the calls “have not come on record”.

In what appears to be a dilution, the CBI also failed to press the charge of destruction of evidence against Sanjay in their written submission. Initially, when the Mumbai Police filed the chargesheet, a copy of which is with Tehelka, they had slapped Sanjay with that charge. Nullwala, who destroyed the weapons on Sanjay’s instruction, has been convicted under the Arms Act. Commenting on the disparity, he told Tehelka, “This will always happen… this is nothing new… See this thing… politicians… they do every possible thing… nothing happens to them… Why? It comes in the paper… it comes on the idiot box every single day… but what happens… it’s always people like us, we have to suffer… you know, we are the example for the world…”

Despite the dilution in the CBI’s written submission, there was enough evidence on record. Abu Salem, Baba Mussa Chauhan and Magnum Video owner Samir Hingora — all of whom went to Sanjay’s house to deliver the consignment of arms — have each confirmed the following: one, that he was speaking to Anees when they arrived there; and two — and this is crucial — that Sanjay was eagerly awaiting their arrival. He personally supervised the consignment — aks, hand grenades and ammunition boxes — being taken out from the cavities of the Maruti van in which they had been concealed. He also provided the toolbox to prise out the arms from the places where they had been hidden. Before that, he asked the constable stationed at his mp father’s house to move away from his post. Abu Salem too was not unknown to Sanjay. Both Hingora and Chauhan describe how he “warmly hugged” Salem.

Nothing to fear? Sanjay outside the TADA court in Mumbai

Nothing to fear? Sanjay outside the  court in Mumbai
AP Photo

SANJAY HANDLED WITH KID GLOVES?
Faced with so much incontrovertible evidence, it can safely be said that, son of an illustrious film personality and parliamentarian, was given special favours. First by a section of the Mumbai Police and later by the CBI which took over the investigation.

The Mumbai Police did not raid Sanjay’s house despite being told of the presence of a weapon on the premises, and thus let go of clinching evidence. Chauhan was the one who squealed on Sanjay when arrested. He told Rakesh Maria, “Why do you take on small guys like me when big and powerful people are involved?” This was on April 3, 1993, and Sanjay was in Mauritius. Maria sought permission to raid the Dutt house to recover the weapon, but was not given the go-ahead by the then Mumbai Police chief Samra.

A few days later, a story appeared in a local paper — attributed to police sources — that the cops had come to know about Sanjay being in possession of an AK-56 and some ammunition. Sanjay called up Nullwala from Mauritius and told him to collect the weapon and ammunition from his bedroom and destroy them. Accordingly, Nullwala collected one AK-56 rifle, two empty magazines, 250 rounds of ammunition and one 9mm pistol from the Dutt residence. He took the weapons to a friend, Karsi Bapuji Adajenia, who was in the steel fabrication business. Adajenia melted down the AK-56 with the help of a gas cutter. Nullwala threw the pieces into the sea in front of Oberoi Towers, Nariman Point. Subsequently, the police recovered AK-56 cartridges from the boulders at Marine Drive. But, apart from its spring and rod, the melted-down remains of the AK-56 could never be recovered.

After his arrest, when Sanjay was repeatedly refused bail both by the  court and the Supreme Court, a quasi-judicial committee of bureaucrats and police officers, set up to review the status of detainees, granted Sanjay bail. He came out after spending just 16 months in jail while others, such as those who delivered the arms to him, were behind bars for more than five years. Manzoor Ahmed and Baba Mussa Chauhan spent five years each in jail before they were let out on bail. Similarly, Hingora and Hanif Kadawala, who had shown Abu Salem the way to Sanjay’s house, were also denied bail for more than five years. While out on bail, Sanjay continued to remain in touch with Dawood Ibrahim’s gang members. The Mumbai Police recorded a telephone conversation between him and Dawood’s key lieutenant Chhota Shakeel in 2003. Sanjay and his friends were heard telling Shakeel to straighten up actor Govinda. Still, the police did not register an offence. Neither did the prosecution approach the court for the cancellation of Sanjay’s bail.

NOVEMBER 28, 2006: JUDGEMENT DAY
On November 28, 2006, at 12.40pm, Judge Kode called for Accused Number 117.  walked to the witness box. Sanjay faced several charges under  — for conspiring in the serial blasts of 1993, for aiding it, for being in possession of prohibited arms and for intending to use them to commit terror. He was also charged under the Arms Act for the possession of lethal weapons. One by one, Sanjay was absolved of all the charges levelled against him under various  sections. The judge said, “Considering the confession of the accused and other evidence, it is accepted that the arms were for self-defence. Hence (he is) not guilty for possession of arms under Section 5 of .’’ Section 5 attracts five years to life imprisonment.

Kode further said, “The CBI was unable to establish that the arms that had reached Dutt’s house were from the cache of arms smuggled into India for the blasts.” Hence the judge acquitted the actor of the charge of aiding the blasts under Section 3(3) of  that also attracts five years to life imprisonment. The court had convicted Zaibunissa Kazi under the same section a while ago, but Sanjay was held guilty only under Sections 3 and 7 of the Arms Act. Sanjay and Maneshinde heaved a sigh of relief. Conviction under would have meant immediate arrest. Conviction under the Arms Act allowed the court to give him time to surrender. It also allowed his lawyers to file for probation.

What happened in court on November 28 was scandalous. The verdict reeked of double standards, one for the privileged and another for the not-so-fortunate. But was what happened in court just a pre-meditated climax? Had the script been written long in advance? Kode said the CBI could not link the arms in Sanjay’s possession with those smuggled in for the blasts. The truth is the CBI never attempted to link them with the main consignment smuggled in for the serial blasts.

SEPARATION OF ABU SALEM’S TRIAL
On June 13, 2006, the  court accepted the CBI’s request to delink Abu Salem’s trial from the main blasts case. The reason offered by the CBI was that it did not want to delay the verdict any more. The delinking of the two cases worked to ’s advantage.

Salem is the main witness in the Sanjay case. His evidence completes the chain of circumstances leading to the delivery of arms to Sanjay. The supplementary chargesheet submitted by the CBI against Salem has a chronological description of how the arms and ammunition that landed at Dighi jetty in Raigad district on January 9, 1993, were further transported to Bharuch in Gujarat, from where nine AK-56 rifles, over 100 hand grenades, magazines and ammunition were then taken away by Salem in a white Maruti van to Bombay.

Salem later distributed these arms and explosives in Bombay at his master Anees Ibrahim’s directions. Salem’s chargesheet, a copy of which is with Tehelka, contains the statements of those who were at Dighi and transported the consignment to Bharuch. It also has the statement of the man in Bharuch who handed over the arms to Salem. And then there is Salem’s confession itself. All point to the same fact: the arms given to Sanjay were part of the consignment that the conspirators had smuggled in for the Bombay blasts.

The statements of those involved in transporting the truck loaded with arms to Bharuch and those who stored them there and subsequently handed a part of the consignment to Salem were never made a part of the case papers of the blasts trial. The CBI’s contention was that since the Gujarat Police had registered an offence vis-à-vis the transportation of arms from Dighi to Bharuch and their storage in a village there, they did not see it necessary to make it a part of the blasts trial.

The CBI recorded the statements of all those involved in the transportation and storage only after Salem was extradited from Portugal in November 2005. But the delinking of Salem’s case, again, kept these statements out of the main trial.

Terror’s Harvest: Firemen shift casualties from Dalal Street after the blast on March 12, 1993

Terror’s Harvest: Firemen shift casualties from Dalal Street after the blast on March 12, 1993

THE BLASTS CONSPIRACY: REVENGE FOR BABRI

After the demolition of the Babri Masjid in December 1992, riots broke out in Bombay and other parts of India. In two rounds of communal violence in Bombay — over five days in 1992 (December 6 to 10) and 15 days in 1993 (January 6 to 20) — 575 Muslims and 275 Hindus died, according to the Srikrishna judicial commission of inquiry constituted by the government of Maharashtra. Dawood Ibrahim, in conjunction with the isi, made a plan to carry out simultaneous blasts in Bombay, Ahmedabad, Bangalore, Chennai, Calcutta and Delhi, says the report submitted by the Mumbai Police to the Union home ministry in 1993. Anticipating a fresh round of Hindu-Muslim riots in the aftermath of the blasts, Dawood wanted Muslims to be armed with assault rifles and hand grenades used otherwise by terrorists. Dawood, his brother Anees and three other smugglers — Tiger Memon, Mustafa Dosa and Mohammad Dosa — were the main conspirators. Dawood sent hundreds of young men from Gujarat, Rajasthan and Maharashtra to Pakistan for training in the use of arms and explosives. Till date, the police do not know the exact number of those who attended the isi-organised training camps. Dawood and Co then smuggled arms and explosives into the country and distributed them to Muslims in different places in Maharashtra and Gujarat. Hundreds of foot soldiers in Bombay and other places were commissioned and assigned specific tasks — handling the landing of arms and explosives, their subsequent transportation to different places in Maharashtra and Gujarat, the distribution to specific members of the gang, the assembling of bombs and the final act of planting them at strategic locations.

“Dawood Ibrahim exhorted us to rise in rebellion against Hindus… He said that Muslims were being butchered and women being dishonoured by Hindus in connivance with the police… He asked us to get ready to take revenge and told us that for this purpose he would send us to train in handling arms and explosives in Pakistan… to teach the Hindus a lesson by killing them and also by killing Indian leaders and senior police officers,” said Salim Mira Shaikh, alias Kutta, a gang member, in his confession before the police, narrating a meeting he and over a dozen other Muslim youths from Bombay had with Dawood in Dubai in February 1993.

Getting the stick: Police break up a protest by relatives of other blast accused

Getting the stick: Police break up a protest by relatives of other blast accused
AP Photo

THE ARMS CONSIGNMENTS LAND IN RAIGAD
Dawood smuggled hundreds of assault rifles, hand grenades, pistols, and hundreds of tonnes of rdx into India through January and February 1993. The first landing was on January 9, 1993, at Dighi jetty in Mahsla in Maharashtra’s Raigad district. Two more landings happened in Maharashtra — on the intervening night of February 2 and 3, and on February 9 at the Shekhadi coast in Mahsla. The consignment that finally reached the Dutt residence landed in Dighi.

The Dighi consignment contained AK-56 rifles, hand grenades, magazines and ammunition. While Mohammad Dosa and his brother Mustafa coordinated the landing at Dighi, Tiger Memon handled the two landings at Shekhadi. Salim Shaikh participated in the landing at Dighi. After the Gujarat Police arrested him in 1995, Shaikh gave the police a graphic description of the landing at Dighi.

Around 300 silver ingots, 20 military-colour canvas bags, 30 wooden boxes (each about three feet long, two feet wide and one foot deep) were unloaded from a launch at Dighi on the night of January 9, Shaikh said in his confession. Each canvas bag had four tin boxes, which had ammunition for assault rifles. Each wooden box had four AK-56 rifles and 12 empty magazines. A couple of boxes had hand grenades while their pins were in separate boxes. The goods were loaded in a truck and a tempo, and the vehicles proceeded toward a forested area. A police party intercepted the vehicles and allowed them to go only after mortgaging seven silver ingots against a promise of being paid Rs 8 lakh in cash. The vehicles then went into a jungle where two trucks with hidden cavities were already waiting. Silver was put in one truck while arms and ammunition were loaded into the other, whose registration number was mrl 1051. “Abdul Qayyum Sajjani, Amir Jadia alias Mota and Babu Madrasi took the truck mrl 1051 and left for Gujarat,” Shaikh told the police. A few remaining boxes of arms and explosives and silver ingots were put into a tempo and taken to the nearby Agarwaad village, where they were kept in the house of a gang member called Shabbir Qadri. The Mumbai Police later recovered the weapons from Qadri.

It was only after Salem’s extradition in 2005 that the CBI examined three witnesses who were involved in transporting that truck to Gujarat, storing the arms in Bharuch and subsequently distributing them to Salem and others. All this evidence has been made part of the Abu Salem chargesheet. Sajjani — a member of the Dawood gang, identified as Code No. 11 in the CBI chargesheet — says, “In January 1993, Mohammad Dosa told me to go to Raigad as some goods were supposed to land. I reached Bhiwandi with a few other of Dosa’s men. There we were given a truck which we took to the Goa road and from there to a jungle in Mahsla. While I waited in the jungle, the others left for the landing of the goods at Dighi jetty. Around midnight, Shabbir Qadri and others came with a few vehicles; silver, arms and explosives were unloaded from them. Boxes of arms and ammunition were hidden in my truck and I was told to leave for Nasik. On reaching Nasik, I called Mustafa Dosa at his Dubai number. He told me to proceed towards the Gujarat road. On reaching a hotel called Narmada in Bharuch, I called up Dosa again. He told me to wait for his man, Hazi Rafiq Kapadia of Bharuch. After some time, Kapadia came and we went to his village, Sansrod. There we packed 56 AK-56 rifles, over 200 hand grenades and boxes of cartridges and magazines into around 30 gunny bags, and then stored all the bags in Kapadia’s godown. I sent the truck back to Bombay and the next day I took the Gujarat express train back to Bombay.”

Kapadia, arrested by the Gujarat Police in 1995 and identified by the CBI as Code No. 4, says in his statement, “A day after I stored the arms in my godown, Mustafa Dosa called me from Dubai at around 11 or 12 in the morning and told me to go to Super guesthouse in Ankleshwar and meet some people. He gave me the number of a 100-rupee note. On reaching the guesthouse, a few people came to me and gave me a 100-rupee note with the same number. I took the keys of a Swaraj Mazda they had brought with them and took it to my village. There I loaded 46 AK-56 rifles, over 100 grenades, some boxes of cartridges and magazines into the vehicle. I handed over the vehicle to Dosa’s men who then left for Ahmedabad. A few days later, Dosa called me again and gave me a local telephone number in Bharuch. I called up that number and told the person who spoke to me to meet me at Hotel Nyayamandir on nh-8 at around 3 o’clock. Four men, all in the age group of 25-30, came in a white Maruti van with a Gujarat number. From there, we went to Hotel Safari. A fair man, whom the others addressed as Salem Bhai, asked two men to get off. Then the man named Salem Bhai, an accomplice of his whose name I do not know and I went to Sansrod village. We placed nine AK-56 rifles, over 100 grenades and some boxes of cartridges and magazines in hidden cavities in the flooring and four sides of the van.

We then went back to Hotel Safari and there Salem picked up his two other men and they left for Bombay. One AK-56, a few hand grenades and cartridges were still left with me and I dumped them in a street in Anklov after the serial blasts. I telephoned Gujarat Samachar about these abandoned weapons. The police came and seized them.”

Salem’s associate who accompanied him and Kapadia to Sansrod was Aziz Bilakhia, another Anees Ibrahim henchman in Bombay. Bilakhia, an accused in the serial blasts case, is still absconding. The CBI has also recorded the statement of a witness it has identified as Code No. 7, who was the owner of the godown in Bharuch where the arms and explosives were stored. Code No. 7 had let out his godown to Kapadia.

Sajjani, Kapadia and Code No. 7 were never made witnesses in the Bombay blasts case. The part of the story relating to the transportation of arms from Dighi to Bharuch, from where they were sent to Ahmedabad and Bombay, is missing from the case papers and the chargesheet of the Bombay blasts case. Judge Kode has given Sanjay the benefit of the same missing link in the chain. MN Singh questions the delinking of the trials on the excuse that it would have delayed the judgement. “I would have pushed for a joint trial,” he says, “because I think the case had already been delayed for far too long.” His argument is not without merit for the court would only have had to examine and cross-examine a total of 15 witnesses, which would have taken just another two to three months.

Salem’s testimony was crucial because he was the one who had been instructed by Anees to deliver the arms to . The others — Samir Hingora and Baba Mussa Chauhan — who accompanied Salem to Sanjay’s house on the morning of January 16, 1993 — corroborate this fact. In his confession before the court, Hingora, in fact, says, “On 15th of January 1993, two persons by the name of Baba Chauhan and Salem met me in my office and gave me the message that they had been directed by Anees Bhai to see me regarding handing some weapons to . After about five minutes, Anees Bhai telephoned me from Dubai and told me that Baba Chauhan and Salem were his men.” When they reached Sanjay’s house, Hingora says he found him talking to Anees on the telephone and asking him when he was sending the weapons (samaan). Apart from shedding light on Sanjay’s proximity to Anees, Salem’s statement also proves that Sanjay was aware of the fact that arms and ammunition were being smuggled into the country. According to Hingora, Sanjay also asked Salem if the arms had arrived. The weapons were hidden in the cavities of the same van Salem brought from Bharuch.

JANUARY 16: THE WEAPONS ARE DELIVERED TO SANJAY
Of the nine AK-56s that were taken out of the cavities, Sanjay kept three aks, around 20 of the 100-odd hand grenades and some ammunition. Mussa Chauhan also took three AK-56s, 16 magazines, 25 hand grenades and 750 cartridges. The remaining three AK-56 rifles, hand grenades and ammunition were put back into the cavities of the car which Salem drove away in. Salem left the car with Bilakhia the same day.

On the evening of January 18, Hanif Kadawala, Abu Salem and his friend Manzoor Ahmed went to Sanjay’s house where he returned two AK-56s, hand grenades and ammunition to Salem. The arms and ammunition were returned in a black bag and a small carton. Kadawala left separately in his car, while Salem and Manzoor took the bag and the carton away in Manzoor’s blue Maruti 1000. They then drove to Zaibunissa Kazi’s house in Bandra and left the arms there.

The crucial point of this entire sequence centres around the undeniable fact that Sanjay had also kept hand grenades. The fact — corroborated by Hingora, Chauhan, Salem and Kadawala but omitted by Sanjay in his own confession — has not been accounted for in court. On the day of the verbal order on November 28 last year, the judge said that he accepted Sanjay’s admission that he had kept the AK-56 for self-protection because he was getting threatening calls during the Bombay riots. But the mere possession of a prohibited weapon in a notified area like Bombay is an offence under Section 5 of . Besides, stocking hand grenades and an assault rifle for self-protection defies logic. Says MN Singh, “Really speaking, that explanation doesn’t convince me. It doesn’t cut any ice. One doesn’t go running for help to gangsters for self-protection. There are governmental agencies to fall back on.” Singh has a point, for Sanjay already had three licenced weapons before he called Anees for the AK-56s. Besides, it is not difficult for the son of an eminent mp to seek help from governmental agencies.

Lawyers are already questioning the “benign judicial eye” cast on  — and they are not the only ones. The families of the co-accused have also protested outside the  court, asking that their relatives be treated the same way as Sanjay. Acutely conscious of the disparity is Maneshinde himself — he says he will have no answer to give to the Supreme Court if he is asked why Sanjay received such different treatment from the others.

Answers are difficult because on the Black Friday of March 12, 1993, India suffered what was then its worst terrorist attack. Within a few hours, 257 people were reduced to a heap of mangled limbs and charred torsos. Meanwhile, justice is still awaited.

 

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UK Tells Sikh Delegation It Will Ask India To Commute Bhullar’s Death Sentence

LONDON – A British foreign office minister on Tuesday told Sikhs that UK will ask India to drop the death penalty against Davinderpal Singh Bhullar.

Hugo Swire — Britain’s minister for India in the foreign office — met Sikh representatives with Lord Indarjit Singh of Wimbledon and discussed the case of Bhullar whose appeal for his death sentence to be commuted was rejected by India’s Supreme Court on April 12.

They said, “If India executes Bhullar it will signal to the world that it is backward and prepared to eliminate all Sikh prisoners.”

Swire told the delegation that UK was against the death penalty in all circumstances. Swire said UK will monitor the case of Bhullar closely “as we will in all cases where the death penalty has been given as a sentence”.

He further said that UK will call on the Indian government

 

Open Letter

Open Letter to the President of India, Mr Pranab Mukherjee, the Prime Minister of India, Dr Manmohan Singh, the Indian Home Minister, Mr Sushilkumar Shinde, and the President of the Indian National Congress party, Mrs Sonia Gandhi

In the matter of the immediate risk of execution of Professor Devinder Pal Singh Bhullar

The Bar Human Rights Committee of England and Wales (“BHRC”) writes concerning the recent rejection by the Indian Government of the application for mercy plea by Professor Devinder Pal Singh Bhullar. We urge the Government to stay the execution of Professor Bhullar and commute the sentence of capital punishment.

Professor Bhullar was convicted in 1993 of involvement in the bombing of the All Indian Youth Congress in New Delhi, where 9 people died and 36 people were wounded. Having been deported from Germany in 1995 -a decision later controverted- he was tried, convicted and sentenced to death in 2001. The offences were drawn under the now repealed Terrorist and Disruptive Activities (Prevention) Act 1985 (“TADA”). TADA was widely criticised for contravening India’s Constitution and international human rights law.

The charges against Professor Bhullar now are widely considered to be unsubstantiated; the evidence relied upon has been fundamentally discredited.

Specifically, the conviction was based solely upon his uncorroborated – and later retracted – “confession”. There was compelling evidence that the “confession” had been obtained both without access to a lawyer and following ill treatment amounting to torture. In such circumstances, the confession evidence is unreliable and unsafe.

Also, there was a complete failure by the prosecution to corroborate the “confession”. Although one hundred and thirty three witnesses were relied upon by the prosecution, not one of those witnesses actually identified Professor Bhullar. On the contrary, many expressly stated that the man seen at the scene was not Professor Bhullar.

Of further substantial concern is a report that the Public Prosecutor, who prosecuted this case during the Supreme Court appeal in 2002, has described the sentence and the subsequent imposition of the death penalty, as a ‘judicial error’.

On 12 April 2013, Professor Bhullar’s judicial review of his failed clemency petition to the President of India was dismissed by the Supreme Court of India. Subsequently, Professor Bhullar’s wife petitioned the Supreme Court for a stay in execution. This was rejected. Professor Bhullar now faces imminent execution.

The breaches of due process in Professor Bhullar’s case are fundamental and serious and so his continued detention is in breach of the International Covenant on Civil and Political Rights (ICCPR). TADA, under which he was tried, convicted and sentenced, is incompatible with international human rights laws and conventions, particularly Articles 7, 10 and 11 of the Universal Declaration of Human Rights and Articles 14 and 26 of the ICCPR. The trial proceedings themselves were in breach of the right to fair trial safeguards under international law and the few protections under TADA were not applied.

Further, it is of considerable note that the Supreme Court was spilt in its findings. Significantly, the Presiding Judge took the decision that Professor Bhullar’s conviction should be quashed on the ground of the unreliability of the “confession”.

It is normal procedure in capital cases in India that where there is a dissenting judgment the sentence is commuted to life imprisonment. Such a procedure is just and fair where a court is ruling on whether a person should lose his life. We have no information as to why this did not occur in this case.

A pressing factor, which urgently must be realised, is Professor Bhullar’s mental health. It has deteriorated since 1995 and, recently, he was diagnosed by a medical board, constituted by the Delhi government as suffering from mental illness. Other reports have described him as being psychotic, delusional and unable to make sense of his surroundings, suffering from hallucinations and severe depression. Professor Bhullar is entitled to instruct his own appropriately qualified medical expert and we urge the Government to allow this action. Until now, the justice system appears to have failed in adequately considering Professor Bhullar’s mental health. Belatedly, it appears to be recognising its importance.

Professor Bhullar’s mental health fundamentally impacts not only upon the lawfulness of upholding the death sentence but also upon his continued detention. Turning to Indian regulations, even the Tihar Jail manual states that a mentally ill person should not be executed. International law is clear that a person with Professor Bhullar’s mental state should not be sentenced to death. In 2005, the UN Commission on Human Rights urged all states that maintain the death penalty “not to impose the death penalty on a person suffering from any mental or intellectual disabilities or to execute any such person”.

The above facts – even in short form – demonstrate that there were serious procedural and evidential flaws in the trial. In any event, irrespective of whether the conviction is unsafe, the execution of an individual who is mentally unwell and incognisant of his own situation is contrary to international law. It amounts to cruel and inhumane treatment. It is unarguable that this case falls into the category of “the rarest of the rare”. Further, humanitarian grounds alone dictate that the death sentence should be, at the very least, commuted.

The BHRC urgently requests the President of India, Mr Pranab Mukherjee, the Prime Minister of India, Dr Manmohan Singh, the Indian Home Minister, Sushilkumar Shinde, and the President of the Indian National Congress party, Mrs Sonia Gandhi, to make the necessary representations and subsequent order to stay this execution.

We respect that India is a rich source of impressive and just human rights jurisprudence. We hope that this is not simply legal history and urge that the opportunity to continue this legacy is taken in Professor Bhullar’s case.

Kirsty Brimelow QC
Chairwoman,
Bar Human Rights Committee of England and Wales (BHRC)

source- http://www.sikhsiyasat.net/

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Don’t give terror tag to innocent minority people: Supreme Court #goodnews

 

26 September 2012 , By J. Venkatesan , The Hindu
Police must ensure that no innocent person has the feeling of sufferance only because “my name is Khan, but I am not a terrorist,” a Bench of Justices H.L. Dattu and C.K. Prasad said on Wednesday. File photo

Police must ensure that no innocent person has the feeling of sufferance only because “my name is Khan, but I am not a terrorist,” a Bench of Justices H.L. Dattu and C.K. Prasad said on Wednesday. File photo
Ensure that no innocent has the feeling of sufferance only because ‘my name is Khan, but I am not a terrorist,’ Bench tells Police

No innocent person should be branded a terrorist and put behind bars simply because he belongs to a minority community, the Supreme Court has told the Gujarat Police.

Police must ensure that no innocent person has the feeling of sufferance only because “my name is Khan, but I am not a terrorist,” a Bench of Justices H.L. Dattu and C.K. Prasad said on Wednesday.

It ordered the acquittal of 11 persons, arrested under the Terrorist and Disruptive Activities (Prevention) Act and other laws, and convicted for allegedly planning to create communal violence during the Jagannath Puri Yatra in Ahmedabad in 1994.

“We emphasise and deem it necessary to repeat that the gravity of the evil to the community from terrorism can never furnish an adequate reason for invading personal liberty, except in accordance with the procedure established by the Constitution and the law,” the Bench said.

Being an anti-terrorist law, the TADA’s provisions could not be liberally construed, the Bench said. “The District Superintendent of Police and the Inspector-General and all others entrusted with operating the law must not do anything which allows its misuse and abuse and [must] ensure that no innocent person has the feeling of sufferance only because ‘My name is Khan, but I am not a terrorist’.”

Writing the judgment, Justice Prasad said: “We appreciate the anxiety of the police officers entrusted with preventing terrorism and the difficulty faced by them. Terrorism is a crime far serious in nature, graver in impact and highly dangerous in consequence. It can put the nation in shock, create fear and panic and disrupt communal peace and harmony. This task becomes more difficult when it is done by organised groups with outside support.”

‘Means more important’

But in the country of the Mahatma, the “means are more important than the end. Invoking the TADA without following the safeguards, resulting in acquittal, gives an opportunity to many and also to the enemies of the country to propagate that it has been misused and abused.”In this case, Ashraf Khan and 10 others, who were convicted under the TADA, the Arms Act and the IPC were aggrieved that no prior approval of the SP, as mandated under the provisions, was obtained before their arrest and recording of statements.

Appeal allowed

Allowing their appeals against a Gujarat TADA court order, the Bench said: “From a plain reading of the provision, it is evident that no information about the commission of an offence shall be recorded by the police without the prior approval of the District Superintendent of Police. An Act which is harsh, containing stringent provisions and prescribing a procedure substantially departing from the prevalent ordinary procedural law, cannot be construed liberally. For ensuring rule of law its strict adherence has to be ensured.”

The Bench said: “In view of our finding that their conviction is vitiated on account of non-compliance with the mandatory requirement of prior approval under Section 20-A(1) of the TADA, the confessions recorded cannot be looked into to establish the guilt under the aforesaid Acts. Hence, the conviction of the accused under Sections 7 and 25(1A) of the Arms Act and 4, 5 and 6 of the Explosive Substances Act cannot also be allowed to stand.”

 

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