(On March 20, 2019, India's central counter terrorism law enforcement agency NIA suffered a huge setback with a special court in Panchkula (Haryana) acquitting Swami Aseemanand and three others in the Samjhauta Express blast case. The court said the National Investigation Agency (NIA) failed miserably to establish their guilt. Three weeks later, on April 12, 2019, the agency was once again left with egg on its face after the Kerala High Court let off five young Muslim men accused in the Panayikulam sedition case. With the NIA back in news by conducting raids in Kerala following reports that the master mind in the Sri Lankan church attacks on Easter Sunday had visited several places in the state, Onmanorama digs into details of the Panayikulam case to find that the police and the agency had goofed up the investigation right from beginning.)
Charles Sobharaj, the psychopathic serial killer, needed to serve just 12 years in Tihar jail. Sohanlal Walmiki, who raped nurse Aruna Shanbaug in 1973 and left her in a vegetative state for over 40 years, served just seven years in jail. Moninder Singh Pandher, in whose Noida house nearly 20 teenaged girls were raped and slaughtered, too walked out of the jail after seven years.
Now, here are the jail terms handed down to five young Muslim men by the Ernakulam NIA special court in 2016. Razik Rahim and Anzar: 14 years. Their crime: they allegedly gave a speech saying Muslims were tortured by the Indian Army in Kashmir. P A Shaduli, Nizamuddin and Shammas: a 'Sobharaj term' or 12 years. Their crime: they allegedly listened to Razik and Ansar.
On April 12 this year, the Kerala High Court ruled that the National Investigation Agency (NIA) could not prove whether these speeches were even made in the first place, leave alone the sedition charge. Even if it is assumed that the speeches were made, the court observed, what the prosecution claimed the accused had said did not amount to the offence of sedition. The court said there was nothing in the comments attributed to the accused that questions the sovereignty and integrity of India. “The NIA court has committed serious error in convicting the accused,” the HC ruling said. The NIA has 90 days to go for an appeal in the case.
Price of freedom
All the five Muslim men were unconditionally acquitted. By then they had served three-and-a-half years in jail, without even a single day's parole. In this brief period, some of them suffered personal losses that normal people would find unbearable even if spread over an entire lifetime.
Nizamuddin lost his father, mother and his elder sister to cancer during the days he was in prison. Not once was he allowed to meet them. Razik's wife, an engineering rank holder, was accused of terror links and had to abandon her job at IBM, Bangalore. While in prison, Shaduli and Anzar were named as accused in an obscure bomb blast and transferred to a prison in Bhopal. They are still languishing in the Bhopal jail.
Independent and 'Happy'
Their travails began on Independence Day, 2006, at a place called 'Happy'. The men, most of them in their mid twenties, had organised a talk on 'The Role of Muslims in India's Freedom Movement' at Happy auditorium at Panayikulam village near Aluva. The auditorium was along the national highway. Also, it was on the top floor of a row of busy shops. Bang opposite is a 'kurishadi'. “It is not the kind of place that you could call secretive,” said Razik.
According to Razik, a police team from the nearby Binanipuram Station arrived at the auditorium before they could begin the seminar. There were 18 people inside the hall. “The police seemed courteous to begin with. They said someone had filed a complaint against the programme and that we had to come to the police station. We were assured that we would be let off by afternoon,” Razik said. Even at the station, Razik said things looked calm. Not even their mobile phones were seized from them.
Darkness creeps in
But then, BJP activists marched towards the police station and staged a big demonstration. A couple of local news channels, too, arrived on the scene. From then on, things turned dark. After dusk, the 18 men were taken to the DySP camp in Aluva.
Each of the accused was interrogated separately, one by one. After this, cases were slapped on five (Razik, Anzar, P A Shaduli, Nizamuddin and Shammas) under Section 124A (sedition) of the Indian Penal Code and Sections 10(a)(i),10(a)(ii) and 13(1)(b) of the Unlawful Activities(Prevention) Act (membership of unlawful organization and taking part in unlawful activities). The remaining 13 were let off.
The charges were slapped on the five on the basis of testimony given by Rasheed Moulavi, one of the 13 who were let off. Moulavi was then the imam of Panayikulam Salafi Masjid. While 17 of those who participated, including a minor boy, said that no speeches were made, Moulavi alone said that Razik and Anzar had made anti-India speeches. The five who were charged were also the men Raheed Moulavi said were seated on the dais during the seminar.
The five men were produced before the Aluva magistrate a day after, on August 16 night. They were remanded in judicial custody for a day and, for the next five days, were in police custody.
New evidence crops up
While in police custody, Razik and friends were alarmed to find the police coming up with “new evidence”. “They produced leaflets containing seditious material and said those were seized from us. They said we had stuffed all these documents inside our clothes when the police barged into the auditorium on August 15,” Razik said. The police said the documents seized from the accused were publications of Students Ismalic Movement of India (SIMI), a banned outfit.
The High Court, in its April order, found such evidence unreliable. “Defence has a case that most of documents had been produced subsequently and it was later planted on the accused and made it appear that it was the accused who brought it. In fact, there is no explanation for the prosecution regarding the delay in sending the seizure mahazar to the court which is also one of the reasons for not placing reliance on these documents,” the HC bench said in its April 12 ruling.
Making of a monster
However, back in 2006 the evidence of SIMI leaflets “seized from the bodies of the five men” were not strong enough to deny them bail. They were out on bail within two months of their ordeal.
But it was not life as usual. Local media reports gave the accused a fearsome obnoxious image. One story had it that the accused had revealed details of hidden arms stockpile. Another report said that a map of India without Kashmir was recovered from them. Yet another report linked Razik's wife to a global terror network, forcing her to quit her job at IBM. “These were charges that even the prosecution had not levelled against us,” Razik said.
Things turned worse in 2008 when the LDF government under V S Achuthanandan transferred the Panayikulam case to the special squad of the Kerala Police. Malappuram administration DySP Sasidharan took over the investigation.
Three witnesses and a retired driver
Sasidharan introduced more evidence. Earlier, it was just said that Razik and Ansar had made anti-national speeches. After Sasidharan came in, the exact words were unearthed. Rasheed Moulavi was the source.
Here is what Razik said according to Rasheed: “Indian Army is killing Muslims in Kashmir who are doing jihad against Indian Army in Kashmir. Other Muslims in India are being tortured under laws like TADA, NSA, etc against which under the leadership of SIMI we have to fight.” Then, Anzar allegedly said: “Whatever we see in India is made by Britishers. We should move back to the period when Nizams and Mughals were ruling old India and for that you have to fight with SIMI and no one can destroy SIMI.”
To second this, Sasidharan's team produced two more witnesses, both of them police constables who were part of the team that barged into Happy auditorium on August 15, 2006.
(Later the High Court bench noted that the first policeman brought in as witness to corroborate Rasheed's testimony did not differentiate between what Razik and Anzar said. He mixed up their versions. The second policeman said he did not hear them speak, just saw four people on the dais and the audience applauding. The court said this was not corroboration enough. When the SI himself said that he had heard what the two men spoke, it did not match Rasheed's testimony.)
Perhaps realising that policemen as witnesses were not credible enough, the special squad produced a seemingly neutral one. George, a retired KSRTC driver. According to George's statement, he had been at the junction when the police team came and, out of curiosity, had went up the steps with the policemen to the auditorium. (However, George's version of Razik's and Anzar's speech was completely at odds with Rasheed Moulavi and also the policemen that even the NIA court, which sentenced the five men, threw out his deposition.)
Diary that said nothing
Sasidharan's team produced yet another evidence, which apparently the police had missed in 2006. A diary kept by the sister of the auditorium's owner. It is a 2004 diary, not of 2006, and on it is entered “Nizamuddin Panayikulam - August 15 - Koran class”. Again, this is not on the page under August 15, but on the last page of the diary. This again was found unreliable by the court as the entry did not have the year.
The special squad was so aggressive that it also arrested the 13 who were let off earlier, including the witness Rasheed Moulavi, for participating in the programme.
NIA vs Kerala Police
Before the special squad of the Kerala Police could submit its chargesheet, the case was handed over to the National Investigation Agency in 2010. The NIA did nothing new except turn Rasheed Moulavi into an approver and filed a chargesheet against the 16 remaining persons in 2011. The 17th was a juvenile, and therefore tried separately. The NIA special court in 2016 sentenced five to jail and acquitted the remaining 11.
For the Kerala Police, this was a mighty snub. The then ADGP Siby Mathews said in his autobiography 'Nirbhayam' that the Centre (UPA dispensation) did not want to give the LDF government credit for combating terrorism. “The NIA filed the chargesheet without investigating further. The NIA got the credit without doing anything,” Mathews said.
Unreliable narrator
The High Court, quite opposed to the NIA special court, was bothered by the evidence provided by Rasheed Moulavi. It is Moulavi's statement alone that links Razik and Anzar to the banned SIMI. Problem was, neither the police nor the NIA had bothered to corroborate Moulavi's testimony. Despite the fact that such a programme was done at a reasonably crowded place, Moulavi was the only witness the police could produce.
“The only evidence we have is that of PW1 (prosecution witness one Rasheed Moulavi), which is not corroborated by any other materials or evidence,” the court said. “When the accused had denied involvement in any such organization, it is for the prosecution to prove that they were propagating SIMI ideology. We could arrive at a conclusion that speakers A2 and A3 (Razik and Anzar) were following SIMI ideologies only if we believe the version of PW1. But he is treated as an accomplice by the prosecution. He was originally a witness, later he is made an accused and thereafter an accomplice. His evidence is not corroborated by any other evidence,” the bench said.
FIR shrouded in darkness
The delay in preparing the FIR was also pointed out by the court as a major lapse. The accused were in the police station from 2 pm on August 15, 2006, and several senior officers had questioned them. Still, no FIR was prepared till nightfall. What had aroused suspicion was that the FIR was drawn up only at 8.15 pm, after Raheed Moulavi's statement was taken.
Graver still was the move of the police to make it appear that the FIR was prepared at Binanipuram Police Station when it was actually prepared at the Aluva station, at the DySP's camp.
Further, the FIR reached the magistrate only at 8.30 pm the next day, August 16. “There is absolutely no explanation for the said delay,” the court noted.
Too late to search
The court also notes why a body search was not conducted on the accused the moment they were caught or were brought to the police station. The police had deposed that when the team reached the auditorium, they had seen the accused concealing books, pamphlets and leaflets inside their shirts.
The court found this unacceptable. “They were taken to the police station and no action had been taken to prepare a seizure mahazar immediately. They waited till the accused were arrested and it is at 9.30 pm that the seizure mahazar has been prepared. Further, the seizure mahazar was sent to the court only on August 18,” the court said. The prosecution failed to explain this delay.
The court was more inclined to accept the defence argument that the documents were collected and then planted on the accused to frame them as SIMI members.
What is sedition charge
For Section 124 (a) of IPC (related to sedition) or Unlawful Activities (Prevention) Act (UAPA) to kick in three things have to be satisfied. One, support of secession from India. Two, intention to question and disrupt the sovereignty and territorial integrity of India. Three, causes or intends to cause disloyalty for and feelings of hatred towards India. The comments Kerala Police and the NIA have attributed to the two accused in the Panayikulam case do not satisfy these three conditions to be called either seditious or unlawful.
“On a bare reading of Section 124A, it is rather clear that merely making a statement against Government of India or military will not become sedition,” the High Court said. The court observed that the alleged speeches may be “malicious” but not seditious. “None of the speakers said that they should show disloyalty to the Government of India. They were projecting the plight of Muslims, of course viewed in a narrow angle as saviours of Muslim community. They might be wrong in making such a statement. It is their thought process that the rule of Mughal or Nizam is better and they should fight under the leadership of SIMI. Therefore, we are of the view that none of the accused can be charged with the offence under Section 124A”, the bench said.
What Razik and Anzar allegedly said
Razik: “Indian Army is killing Muslims in Kashmir who are doing jihad against Indian Army in Kashmir. Other Muslims in India are being tortured under laws like TADA, NSA, etc against which under the leadership of SIMI we have to fight.”
Anzar: “Whatever we see in India is made by Britishers. We should move back to the period when Nizams and Mughals were ruling old India and for that you have to fight with SIMI and no one can destroy SIMI.”
