Held Under Terror Charges Despite Lack of Incriminating Evidence, Kashmir Cleric Gets Bail After 10 Months

New Delhi: “Helping a person for building a house or providing financial help to a poor man for enabling him to take treatment for an ailing daughter cannot in any manner be considered to be incriminating,” observed a special court in Delhi while granting bail to a Kashmir-based cleric on December 20.

Javaid Ahmad Lone, who was an imam (prayer leader) at a mosque in Ganderbal, was arrested on February 15 this year by the National Investigation Agency (NIA) for his alleged association with the banned Jamaat-e-Islami (JeI) (Jammu and Kashmir) and giving Rs 500 to one Md Yusuf Khandey for treatment of his ailing daughter and raising funds for the construction of his house.

He has been charge-sheeted under the stringent anti-terror law Unlawful Activities (Prevention) Act (UAPA) in addition to severe sections of the Indian Penal Code (IPC) and the Arms Act.

The NIA in the chargesheet has alleged that even after its prescription on February 28, 2019, the JeI is “involved in separatist and secessionist activities” in Jammu and Kashmir by collecting funds domestically as well as from abroad through donations in the form of “Zakat, Mowda, Baitul Mal” purportedly to further charity and other welfare activities such as health and education, etc.

The probing agency alleged the accused — Javaid Ahmed Lone — continued his affiliation with the JeI even after the outfit was declared unlawful by the Union Ministry of Home Affairs on February 28, 2019. To substantiate the allegation, the NIA has claimed to have found a list of JeI members [Hamdard (sympathiser), Rukn (member), etc.] from the possession of the accused.

Investigators further alleged Lone used to collect Rs 15 lakh from the purported JeI members and sympathisers.

It is also alleged that one Md Yusuf Khandey had approached the accused, seeking help for the construction of his house. He was allegedly assured of the financial assistance and asked to come after the winter season. The chargesheet mentions that the accused gave Khandey Rs 500 for the treatment of his ailing daughter.

Interestingly, as per the charges, Lone took the “consent of the vice chairman of the District Development Council for raising funds from JeI members”.

The NIA raided Lone’s house on August 8 last year and claimed to have seized two 12-bore guns and ammunition from there.

However, the seizure memo quotes the independent public witnesses of the NIA — according to Lone’s counsel Abu Bakr Sabbaq — as saying that “no incriminating material was found or seized.” The witnesses, he said, are Doordarshan and Food Corporation of India officials.

Defending Lone before the court, Advocate Sabbaq submitted that “there is no evidence at all on record, showing any association of A-1 (the accused) since the time the JeI became a banned organisation,” sources told NewsClick.

Even if there are witness statements, he further submitted, that by itself also does not establish that the accused was involved in any unlawful activities as defined under the UAPA.

With regard to the purported recovery of the arms and ammunition, Sabbaq reportedly argued, “Even if the alleged recovery of the gun is taken on its face value, such recovery is shown in the seizure memo from beneath the staircase of the house and not from the personal possession of the accused.”

According to people in the know of the case, when the advocate brought the court’s attention to the statements of the independent witnesses mentioned in the seizure memo, adding that no recovery was effected, Public Prosecutor Shashank Ahuja, representing the NIA, submitted that the statement of the witnesses do not mention the recovery of the weapons because of a “clerical mistake”. And therefore, the defence “cannot take its benefit.”

Considering the submissions, the court noted that the “allegation that some list of Hamdard/Rukn of a banned organisation, the JeI, was found in the possession of A-1 (the accused), by itself is not sufficient to establish his association with the organisation; more particularly, after the date of its declaration as a banned outfit.”

The court, upon perusal of the witness statements, too concluded that no recovery of the weapons was effected from the possession of the accused.

“No doubt in their statement, due to clerical mistake, the word ‘Javaid Ahmad Dar’ is mentioned; whereas, the name of the accused is ‘Javaid Ahmad Lone’. But interestingly, the entire statement of these witnesses does not in any manner state regarding the alleged recovery even from the house of A-1 (the accused),” noted Additional Sessions, Judge Shailender Malik, emphasising that “if there was any clerical mistake, at least these witnesses would have stated about the recovery of the alleged weapons.”

The special NIA judge, however, also observed that the accused had collected funds for Jamaat-e-Islami, Kashmir, from three other prosecution witnesses when they had gone to the mosque to offer prayer. But even as per the prosecution case, no recovery of money has been made from the accused or even a document showing any amount collected from the accused.