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Afroz case shows POTO as indiscriminate weapon

The special judge has heavily criticised the police and investigating agencies for their shoddy behaviour, reports MH Lakdawala

The Mumbai police admitted it had made ''a mistake” when it filed charges under the Prevention of Terrorism Ordinance (POTO) against alleged al-Qaeda terrorist Mohammed Afroz, without revealing what the mistake was. The case against Afroz relates to the Al Qaeda plot to destroy important installations across the world using pilots on suicide missions. Afroz is accused by Mumbai police of being part of the team assigned to destroy the House of Commons in the wake of the September-11 attack.

The Maharashtra government has ordered a probe into the circumstances leading to application of POTO on Afroz Abdul Razzak and police move to drop provisions under it later, official sources said here. The probe will go into the circumstances of the case and decide who was responsible for application of Poto and its subsequent withdrawal, sources said. 

The Deputy Chief Minister, Chhagan Bhujbal, defended the decision not to apply POTO to Afroz, citing the precedence of the Gujarat Government which had arrested the perpetrators of the Godhra carnage under POTO but then withdrew it. Mr. Bhujbal said a case was also registered under POTO against Afroz who was arrested on December 3 last after “his confession” to an Additional Chief Metropolitan Magistrate about his being a member of the suicide-hijacker team of the Al-Qaeda. “But the public prosecutor opined that it was not proper to prosecute him under the provisions of POTO only on the basis of his judicial confession since more information about him would take time to be obtained from abroad,” said Bhujbal.

The seven-party Democratic Front (DF) government here is divided in its opinion about Poto, with the Congress opposed to it in keeping with the stand taken by its party high command in Delhi. Mr Bhujbal, who belongs to the NCP supported POTO. Bhujbal agreed that the Mumbai police had damaged the state government’s image. He has ordered an inquiry. 

The special judge of the Maharashtra Control of Organised Crime Act (MCOCA) court has levelled heavy criticism at the police and other investigating agencies for the shoddy manner in which charges were filed against alleged al-Qaeda terrorist Mohammed Afroz under POTO and then asked to be withdrawn. Judge A P Bhangale even said that Afroz”s "liberty" could have been affected by the invocation of POTO by police on March 1, and said that asking for the charges to be withdrawn "can raise eyebrows in society". 

He also criticised the police for not filing a proper report to the court on the visits by two police teams - which included Commissioner M N Singh, Joint Commissioner (Crime) B S Mohite and other top officers - to the US, UK and Australia, to collect evidence against Afroz.

In his order the judge wrote, "It is the duty of the investigating officer (IO) to file a progress report of the investigation, if any, with the application for further remand. Serious accusations cannot be levelled against the accused and withdrawn according to the whims of the prosecuting agency." According to this statement, the police improperly requested for Afroz’s remand to be extended on one or more occasions.

Both legal experts and opposition leaders expressed sharp reactions and saw it as Congress chief minister Vilasrao Deshmukh”s attempt to abide by his party”s stand on the anti-terror law. Both Shiv Sena and BJP have charged the Congress-led government with "political motivation" to drop charges under the Central law against Afroz. 

BJP leader Gopinath Munde said if applying POTO on Afroz was a"mistake" - as said by the police in court - action should be taken against police commissioner M.N. Singh. Lawyer Satish Maneshinde, too, reacted strongly to the police flip-flop and said it seemed that the force had invoked POTO against Afroz to curtail his freedom. "In the Democratic Front government, the Congress, not the Nationalist Congress Party, has probably taken a political decision," he said.

The use of POTO against Afroz by the Mumbai police had considerably weakened the Congress party's opposition to the draconian law in Parliament. When Parliament took up the ordinance for discussion, the treasury benches pointed out to Congress president Sonia Gandhi that her own party”s government led by Deshmukh had invoked Poto in the Afroz case. It is learnt that in a bid to control the damage, minister of state for home Kripa Shankar Singh, who belongs to the Congress, asked the commissioner to drop the Poto charge against Afroz. Thus even as Ms Gandhi was targeting Poto in the Lok Sabha, the Mumbai police quietly sought the permission of the special judge to drop Poto charges against Afroz.

In fact, several activists of the Congress were upset when the city police decided to invoke Poto against Afroz. This was because independent of the Afroz case, several articulate Muslim leaders had opposed the ordinance, which they feared would be used by the authorities against minorities.Meanwhile, Deshmukh”s detractors have stepped up their lobbying against him, following the Poto disaster. 

Deputy Chief Minister Chhagan Bhujbal denied that the decision to rescind the provisions of POTO against Mohammad Afroz was “politically motivated”. Bhujbal said the special prosecution in the case had opined that applying Poto provisions on the basis of Afroz”s submissions in the court would not be legally viable. Reacting to the deputy CM”s statement, leader of the opposition Narayan Rane asked whether the city police had sufficient evidence on March 1, 2002 when the Poto charges were slapped on Afroz. “Didn’t the police know then that they were not in possession of ample evidence to book Afroz under Poto? What is the reason for withdrawing the provisions after 26 days?” Rane asked.

“The conduct of the police in stating that the provisions of Poto were wrongly applied to Afroz is highly suspicious,” criminal lawyer Majeed Memon said. “It displays the callous approach of the police towards serious matters. It is also clear that the application or withdrawal of Poto in the case was done at the behest of the police's political bosses rather than on the basis of legally valid material.”

Senior advocate PR Vakil said that the action raised doubts about the credibility of the police case. “As it is, several citizens fear that the provisions of the POTO could be applied indiscriminately and, sometimes, with an ulterior motive.” He added that the conduct of the Mumbai police in this case only strengthens that suspicion.

In yet another setback to the police, Mohammed Afroz was granted bail in a robbery case after the police failed to submit a chargesheet within the mandatory 90-day period. Afroz’s lawyer Dinesh Sanghvi told Milli Gazette that his client had not by that time furnished the bail bond. "The police might request the court to discharge Afroz in this case also as we are sure that they have no evidence to prosecute him.” he said.

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