J&K Youths Spent 6 Years in Jail: Why Court Found Evidence Unreliable

Court says 'prosecution evidence suffers from such material inconsistencies and infirmities that it would be unsafe to base a conviction upon it'

A Jammu and Kashmir court has acquitted two youths from Baramulla after they spent six years in custody under anti-terror laws, while highlighting contradictions and infirmities in the prosecution's case.

Feroz Ahmad Khan, the Special Judge designated under the Unlawful Activities Prevention Act (UAPA), acquitted Huzaif Firdous Bhat of Choora, Sopore, and Ajaz Ahmad Bhat of Kreeri, Baramulla, who were arrested six years ago after police claimed to have recovered weapons from their possession.

"On an overall assessment, the court finds that the prosecution evidence suffers from such material inconsistencies and infirmities that it would be unsafe to base a conviction upon it," the court said while acquitting the two.

"The prosecution has not established through cogent and dependable evidence that the arms and ammunition produced before the court were recovered from the conscious possession of the accused in the manner alleged... Once the alleged recovery itself becomes doubtful, the foundation for the offences under Sections 18 and 23 UAPA and Section 7/25 of the Arms Act is substantially weakened," it said.

On September 16, 2020, the J&K police claimed to have arrested Huzaif and Ajaz during searches at a barricade on the National Highway near Kanispora in Baramulla.

Police had claimed that during checking of their vehicle, in a joint operation by the J&K police, the Army's 52 Rashtriya Rifles and the 53rd battalion of the Central Reserve Police Force, two hand grenades, 100 rounds of ammunition and two posters of the banned Lashkar-e-Taiba (LeT) outfit were recovered. Police registered a case against them under sections 18, 23 and 39 of UAPA and 7/25 of the Arms Act.

The court observed that while there was no independent witness to the recovery of the arms and ammunition, glaring contradictions were found during the deposition and cross-examination of the police witnesses. While the police were represented by the Additional Public Prosecutor, the accused were represented by advocates Azim Pandith and Tajamul Hussain.

"The prosecution thus has not presented a uniform account on several foundational aspects of the alleged recovery. One witness says that PW-1 conducted the search (while) another attributes the search to Jaipal; another states that PW-4 conducted the search; while PW-3 and PW-4 admit that the recovery was not made in their presence," the court said in its observations.

"The witnesses also differ regarding the nature of the alleged LeT material and the number of rounds recovered. The discrepancies become more significant when considered with the evidence concerning identification and preservation of the seized articles."

While the police said that the accused youths were arrested during a search of vehicles at Kanispora, the accused told the court that they were picked up by the police "from their respective residences during night time".

The court highlighted the discrepancies in the prosecution case, saying that while one witness said 100 rounds of ammunition were recovered, another said only 40 rounds were recovered. It also highlighted that while a witness said posters of LeT were recovered from their possession, another witness said posters of Jaish-e-Mohammad were recovered.

"It is settled that while minor discrepancies arising from lapse of time or imperfect recollection may ordinarily be ignored, contradictions which go to the root of the prosecution story and create doubt about the occurrence, recovery, identity of the recovered articles or their connection with the accused cannot be brushed aside as inconsequential...," the court said in its judgement on November 5.

"The prosecution has also not produced any evidence connecting either accused with any identified terrorist, terrorist act, terrorist organisation activity or any specific act of intentional aid. The Investigating Officer admitted that no name of any terrorist with whom the accused allegedly had contact emerged during investigation," it said.