The first victims of dreaded POTA have been acquitted, nine years after they were booked and five years after the act was repealed in India. Shahnawaz Khan reports how India’s first POTA case failed to stand scrutiny.

In November of 2001, a few weeks after the Prevention of Terrorism Ordinance (POTO) was promulgated in India, a Srinagar carpet weaver’s family became the symbol of the new law.

A resident of Malik Saheb Safakadal, Ghulam Muhammad Dar was not only the first to be booked under the new law, but his house was sealed and his family – wife, two minor children aged 4 and 6, and mother – ousted.

It was only after much embarrassment and public pressure, the government let the family back into their house some days later. Until then, as the family recalls, even the neighbours were warned against sheltering them.

The POTO introduced in India in October 2001 during the NDA government, in an era charged by 9/11, later became an act (POTA), but was repealed by the UPA government in 2004.

In J&K if the Farooq Abdullah led National Conference (NC) government was eager to implement it even before the central government did, the successor PDP-Congress coalition led by Mufti Sayeed took pride in halting its implementation much before New Delhi did.

But repealing or stopping the implementation did not undo Dar’s travails.

Dar, in his 40s then, was one of the six men booked under POTA on November 22, 2001.

He remembers vividly: It was November 19, 2001, third of Ramadhan, and Dar says, he had just returned after offering Taraveeh (special night prayers offered in the month of Ramadhan) at the mosque, when SOG raided the house.

“We were all sitting here in the room,” says Dar as he sits, sipping tea, at the same spot from where he was picked up nine years back.  “They asked for my name, and took me along.”

Dar’s wife Haseena said that after taking Dar, they did not let the rest of the family move out of the room.

For the next three days, the family had no news of Dar. Who took him? Or where?

It would be few weeks before Haseena gets to see Dar in custody, but before that the family had a bigger blow. On November 2002, the SOG and local police swooped on the house again, asked the family to come out, locked it and pasted a notice on the door.
 
Dar, they were told, has been arrested for harbouring militants in the house. The house was sealed, because under POTO the property of people suspected of sheltering militants could be seized.
 
“The poster (notice) of the door said that any neighbor trying to shelter us would face the same fate,” says Haseena.
 
For more than a week, the police and SOG personnel were deployed in the street, preventing the family from reclaiming their home.
“We were on the street, along with my children and aged mother-in-law,” said Haseena. “The neigbours stood by us.  Although nobody dared to take us into their house due to police pressure, they would protest with us in the street and be there with us all the time.”

Occasionally, during the nights Haseena and the family members would take shelter in the nearby mosque.
 
The eviction of the family incited protests, and public pressure brought embarrassment to the government, despite the aggressive assertiveness of chief minister Farooq Abdullah, who even in a recent interview advocated the use of laws like POTA and AFSPA that are considered draconian even by the authorities.
A week later the family was returned its house, but the battle for retrieving its member was a long and a hopeless one.

Like its previous avatar TADA, POTA has been criticized for giving sweeping powers to police. Legal experts and human rights activists say the laws have been used by police to abuse its authority.

While the family was battling its own survival, unaware of their breadwinner’s whereabouts, Dar did hear about the family’s travails in custody.
“After arrest I was taken directly to SOG camp Cargo. They were telling me that I was harbouring militants. They were beating me, abusing me,” recalls Dar.
The physical torture Dar was going through dwarfed when he heard about his house and family.

“A policeman told me about my family. I was troubled, wondered where they would go now!”

Nine years later, Dar stands acquitted and free, but that was something he could hardly fancy then.

“POTO was new. I was told it would take ten years for bail. I would wonder, how old I would be when I get home again,” recalls Dar.

After 19 days in Cargo camp, Dar says he was shifted to Central Jail Srinagar, where he spend another three months before being moved to Kot Balwal Jail in Jammu.
 
In the meantime he comes to know of the charges against him.  He finds that he is booked with five others under various sections (laws) including sections of POTA.

Dar’s version of the story differs diametrically from the story police has offered in its charge sheet. First of all, it comes three days after, Dar says, he was actually arrested.

As per an FIR registered with the Safakadal police (218 of 2001; Safakdal) filed on a report by DSP SOG Haseeb Mughal, Dar was picked up from his home along with four others on November 22, 2001 on the inputs of one Manzoor Ahmad Mir, who was already under custody and against whom an FIR was registered in Police Station Khanyar.

According to police report which books all the accused for offences under sections 3/4/21/22 POTA, 120-B, 121 RPC, 10 Criminal Law (Amendment) Act, 3/5 Explosives Substances Act and 7/25 I.A Act, some arms and ammunition were also recovered from Dar’s house.
 
According to DSP Mughal, Manzoor Ahmad Mir had disclosed that he was the publicity chief of Al Badr outfit and Dar’s house was being used as a hideout.
The accused maintain that they were picked up on 19th from their homes, and no arms were recovered anywhere. Dar says that far from harbouring anyone, he did not know any of the co-accused, most of whom seemed to be victims like Dar himself.

Except for Manzoor Mir, who hailed from Lolab in Kupwara, all the others hailed from different localities of Srinagar. The eldest of them was Ghulam Hassan Najar, a Rainawari resident, in his 60’s.

“He (Najar) was an old fellow, and hard of hearing,” says Advocate Tanveer Bhat, who fought their case in the TADA/ POTA court.
 
Bhat, who described the case as concocted, asserts the accused were picked up from their own localities – Bashir Ahmad Mangroo from Zampakadal Chattabal,  Ghulam Hassan Najar from Rainawari, Nazir Ahmad Dar from  Barzalla, and another Jan Muhammad Najar from Lal Bazar – before November 22, and not from Dar’s house as claimed by the police.

In Najar’s case, Bhat says a local newspaper’s November 21, 2001 edition reported his arrest by Special Task Force (aka SOG) on the night of November 19, 2001. However, like in other cases, police recorded the date of arrest as November 22.

While Dar and other accused are relieved to find themselves acquitted finally, Najar did not live to see this day.
“He (Ghulam Hassan Najar) died a few years back,” says Bhat.

When POTO/ POTA was enacted in J&K, one of the facts rights activists pointed out was the presence of many other stringent laws in the state, like the Armed Forces Special Powers Act (AFSPA) and  Public Safety Act (PSA). AFSPA and PSA give sweeping powers to security agencies to detain people and even shoot to kill on suspicion. With such laws in hand there was hardly any need for POTA, rights activists would argue.

But apparently the security agencies thought they needed more teeth. If the AFSPA gives troops immunity from accusations of abuse, and PSA gives authorities the powers to detain people arbitrarily, the POTA added a different dimension.

Under the Act the confessions made by the accused before a senior police officer are admissible in a court as evidence and can be used against him. Legal experts argue that such confessions are generally taken under torture and should not be admissible as under regular laws.

The second stringent provision cited by experts is the bail provision.

“The bail is not a matter of right here. A bail can be granted only on merit, and merit can be assessed not just after the case is produced in the court, but only when the evidences come up,” explains Advocate Bhat.

“It is only after the judge examines the charges and evidences, that he can decide the merit of the case.”
 
In Dar’s case it meant 15 months, which many think is still early. He was granted bail in February 2003. But it was not just the merits of the case he or his counsel were fighting. Apart from POTA and other acts, authorities had slapped Public Safety Act on him, a practice used by state to preempt bail.
“It was the change of government that brought us relief,” asserts Haseena.  Haseena says things began to ease only because of the (policies of) Mufti Muhammad Sayeed.

Between the Novembers of 2001 and 2002 a major political change took place in the state. Mufti Muhammad Sayeed assumed office as chief minister heading a PDP-Congress coalition.

Even before assuming office, the coalition promised to undo, what it said were the wrongs of previous government. Repealing POTA was one such promise that it made it in common minimum programme.

The new government did not withdraw the cases already filed under POTA, but as Dar said, he was granted a parole for PSA paving the way for his release on bail.

Haseena’s travails began to ease. In the months after her husband’s arrest she had taken the responsibility of earning for her family. She was already good at Sozni embroidery, which now became her source of sustenance. Her 80 year old mother-in-law Jana would help by spinning Pashmina.

“I would work for long hours, from early morning until late,” says Haseena.

It was still a tough ask to make good of family needs, with two children attending school and husband’s case to follow.

“I sold off my gold (jewelry) to take care of the case, and to meet the expenses of visiting him in Jammu (jail),” informs Haseena.

It took many months to plan her visit to Jammu. Mostly the unlettered couple would exchange letters, (written and read by others). In one such letter she informs Dar that their children have secured top positions in their respective classes in their examinations.

It was November in 2001 when Dar’s travails began. It was November again, this time in 2010 when these ended. Although the TADA judge Inder Singh had acquitted him and co-accused in July this year, they came to know only in November.

An interesting aspect is the nature in which the police produced its case, and how it fell apart in the court.

 “The statements of main police officers were contradictory, and permission mandated for various sections was not taken,” said advocate Bhat.
Apparently, as Bhat concurs, India’s first POTA case was made in haste.

The accused claim that they were picked up from their respective localities, three days earlier than claimed by police.
 
But the case did not reach the stage, where they would need to contend or establish that in the court, because the case fell apart before that. It is a different matter that it took nine years.

The contradictory statement of witnesses produced by the prosecution, and the legal loopholes it had did not allow the case to stand scrutiny.
 
Head constable Muhammad Sidiq and Selection Grade Constable Ghulam Hassan produced as witnesses by the prosecution turned hostile and denied that they were present at Dar’s house at the time of raid as claimed in the inquiry officer Mughal’s report.

Another Selection Grade Constable Ghulam Nabi stated that he was part of the search party that allegedly arrested four persons from Dar’s house besides recovering weapons. He also stated that earlier he had seen Manzoor Ahmad Mir in police custody at police station Khanyar.

During cross examination, however, Ghulam Nabi stated that he had not participated in the search party. He had not entered the said hideout (Dar’s house), nor did he know wherefrom the accused were arrested. But he said that recovered articles were seen by him near the house but without any seal.

The major witnesses DSP Mughal and SP Dinesh Gupta maintained that Dar’s house was raided on the disclosure of Manzoor Ahmad Mir, against whom an FIR was registered in Police Station Khanyar and from Dar’s house other accused were arrested and some weapons recovered. Both said that Mazoor had disclosed that he was associated with Al Badr outfit and Dar’s house was used as a hideout.
 
But during cross examination contradictions surfaced in the statements of two senior officers. While Mughal stated that Manzoor made his disclosure under his custody in SOG camp Cargo, and he recorded the statement there, Gupta said Manzoor’s disclosure came in Khanyar police station in a room full of policemen and officers from the station including its SHO.

There were other discrepancies in the sequence of events reported by the police witnesses, like who prepared the report and where, and  where the recovery memo was prepared.

The case’s legal defects, as advocate Tanveer puts it, were not limited to the discrepancies of witnesses.

The mandatory government permission required for prosecution of accused under respective sections had not been sought or produced in the court.

The prosecution not only failed to produce a sanction copy for trial under POTA as mandated by section 50 of the act, but the mandatory government permission for prosecution under Explosives Substances Act and Criminal Law (Amendment) Act were also missing.

Moreover the court noted that Al Badr was not declared a banned outfit in POTA Schedule at the time of the arrest.

About the claimed recovery of arms, the court described the non packeting and non sealing of items as a serious infirmity, and also questioned the police for not having taken a civilian witness despite availability.

A people’s tribunal report on POTA produced in 2004 by a group of eminent Indian rights activists and legal experts based in New Delhi commenting on the various aspects of the law and its use and abuse notes that delay and use of security legislation as a sort of preventive detention was the core of the strategy.

“Conviction on the basis of preventive detention was never a critical concern. In fact in many cases evidence did not exist at all, the police knowing right from the beginning that a conviction would be impossible.”

POTA like TADA has been criticized for its abuse, and use against minorities and political adversaries across India.

On the basis of testimonies across India, the tribunal reports notes, that mostly persons whom the police believe to be terrorists are often eliminated and no person genuinely believed to be a terrorist is actually brought to trial. Only those on the periphery of a crime, or those whom the police suspect not to be hardcore terrorists, are ever brought to trial.

LEAVE A REPLY

Please enter your comment!
Please enter your name here