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Phone intercepts not admissible evidence under POTA: HC

By Nirnimesh Kumar

NEW DELHI OCT. 30. The prosecution today suffered a major setback in the Parliament attack case when the Delhi High Court ruled that the intercepts of the telephonic conversations between the accused could not be construed as admissible evidence under the Prevention of Terrorism Act (POTA).

The four accused — Mohammed Afzal and Shaukat Hussain of the ISI-sponsored terrorist outfit, Jaish-e-Mohammed, S.A.R. Geelani, a suspended Arabic lecturer of a Delhi University college, and Navjot Sandhi alias Afsan Guru, wife of Shaukat Hussain — are facing trial in the Court of the Special Judge, S.N. Dhingra, in the Patiala House courts here.

Shaukat Hussain, his wife and Geelani had gone on appeal against an order by the Special Judge who had disallowed their plea that the intercepts could not be taken on record as admissible evidence as the same had been done without following the procedures laid down under POTA.

The High Court set aside the lower court order when the Special Branch of the Delhi police failed to produce a copy of the request letter, which it had sent to the competent authority under POTA seeking permission to intercept the conversations between the accused on mobiles.

In the lower court as well, the Special Branch had failed to supply a copy of the request letter when counsel for Geelani asked for it.

Section 45 of POTA bars admissibility of intercepts of telephonic conversations as evidence during trial unless the accused is furnished with a copy of the order of the competent authority accompanied with a copy of the application under which the interception is authorised or approved.

Referring to the provisions of the Act, Justice M.A. Khan said: "Evidence which is illegally procured will not be admitted if the admissibility is prohibited by law." The Special Branch had intercepted conversations between the accused under the provisions of the Indian Telegraph Act, not in accordance with the provisions under POTA. "The prosecution cannot fall back upon the general law of evidence for the offence under POTA on the strength of evidence, admissibility of which is forbidden by Section 45 of POTA," Justice Khan said.

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