The Telegraph
Since 1st March, 1999
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Terror law under SC scanner

New Delhi, Feb. 21: Interception of communication presented as evidence under the anti-terror legislation today came under the scanner of the Supreme Court.

On a special leave petition by Delhi police in the Parliament attack case, the apex court issued notices to three accused in the case.

The police plea challenged a Delhi High Court order that said intercepts of communication between the accused could not be admissible in evidence.

The accused, S.A.R. Geelani, Navjot Sandhu, alias Afshan Guru, and Shaukat Hussain had communicated with each other through mobile phones and e-mail, and these communications were intercepted by Delhi police. However, the anti-terror legislation did not exist at that time and when they were tried under the law, the intercepts were produced as evidence.

A division bench of Justices S.N. Variava and B.N. Aggarwal asked the accused to reply to the notices within three weeks, after which the case would be taken up for further hearing.

While the trial judge agreed with the prosecution that the intercepts were evidence, on appeal, Delhi High Court said they could not be evidence, as the anti-terror legislation could not be used retrospectively.

The high court also pointed out that in cases tried under general criminal laws, evidence to link the offence to enactments like the legislation could not be admitted.

In its petition to the Supreme Court, Delhi police said the high court had erred in concluding that the intercepts were inadmissible in evidence. It contended that “it is settled law that all relevant evidence is admissible”.

Citing the Supreme Court judgment in the Rajiv Gandhi assassination case, the plea noted that the apex court had then allowed evidence under the Terrorist and Disruptive Activities Act, the forerunner to the present anti-terror legislation, against LTTE woman cadre Nalini to be admissible under the Indian Penal Code.

The prosecution argued that all evidence collected prior and subsequent to the application of the anti-terror legislation in a case should be admitted as evidence. It maintained that “even in a case being tried under the general criminal law, if it comes to the notice of the special court that a case under the legislation is made out, cognisance may be taken”.

The petition to the apex court contended that “if the judgment of the high court were upheld, it would create a situation where the entire investigation done and evidence gathered would be rendered void requiring a de novo investigation, which would defeat the very object of the enactment”.

“The high court has erred in stating that only evidence gathered during the investigation under the anti-terror legislation would be relevant and substantive evidence for the purposes of proving the charges,” the petition said, contending this position “is contrary to the judgment of the Supreme Court in the State Vs. Nalini (Rajiv Gandhi assassination) case”.

“In the Parliament attack case, the investigators have added the anti-terror legislation charges only after gathering the cogent and substantive evidence to show that the conspiracy was aimed to be an act of terrorism”, the prosecution contended.

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