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TiharJail report visited by High Court Bar Members on 2nd and 3rd February 2015

TiharJail report visited by High Court Bar Members on 2nd and 3rd February 2015

In pursuance of the orders of the Hon’ble High court, in case titled J&K High Court Bar Association versus State of J&K and others, a Three Member Team of J&K High Court Bar Association, Srinagar comprised of;

  1. Mian Abdul Qayoom, Advocate, President.
  2. Mohammad Ashraf Bhat, Advocate, General Secretary.
  3. ArshidAndrabi, Advocate, Executive Member.

Visited Central Jail Tihar on 02nd and 03rd February, 2015.

The members met the inmates of the jail and tried to ascertain from them as to what kind of facilities of food, clothing, medical aid, hygiene, sanitation and legal aid etc. was available to these inmates.

Accordingly to the information available on the website of the prison, the Tihar jail was set up in 1958 with the lodging capacity of 1273 prisoners. The prison population has gradually grown and as on today, there are about 15000 odd prisoners lodged in the jail.The jail as on today is therefore, overcrowded.

The Tihar Jail is the largest prison complex in Asia. The prison complex has nine jails, each located at a distance of ½ km from each other, apart from a district jail at Rohini which was, commissioned in 2004.

There are 21 prisoners belonging to J&K State who are languishing in different jails of Tihar from years together. In order to meet these prisoners, the Bar Members had to first of all, seek permission from Director General of Prisons, Delhi, who after a long wait, permitted them to meet these prisoners only on 02nd and 03rd of February 2015 during office hours. After obtaining the permission, the team members first of all went to jail no. 1, where seven prisoners were lodged whose names are as under :

  1. Muzaffar Ahmad Dar R/o Chichloora, Magam.
  2. Mushtaq Ahmad Lone R/o Kanelwan, Anantnag.
  3. YaqoobS/o ShukradinR/o Narwal Jammu.
  4. Mohammad Sidiq Ganai R/o Hathi Shah Sopore.
  5. Mohammad Rafiq Shah R/o Alasteng Srinagar.
  6. Ameer Abbas DevR/o Asarabad Kishtwar.
  7. Mohammad Ghulam JeelaniLilooR/o Botapora Sopore.

Muzaffar Ahmad Dar, stated before the team members that while he was lodged at Central Jail Srinagar and was facing trial in designated Court (TADA) Srinagar and Sessions Court Baramulla, he was taken under a production warrant to Delhi. Instead of producing him in the court and bringing him back to Central Jail Srinagar, he was falsely implicated in Delhi in NIA case/FIR No. RC11/2011 under section 120-B, 121-A IPC, 17,18, 39, 40 UA(P) Act registered by Delhi Police. The main charge sheet of the case has been filed by the police in December 2013, against Mohammad Shafi Shah, Talib Hussain and 8 other persons who have been declared proclaimed offenders. However, after the arrest of Muzzafar Ahmad Dar, the police has submitted the first supplementary charge sheet against him before the court on 01.11.2014. The case has 100 listed witnesses, out of whom 10 witnesses have been declared as protected witnesses interms of NIA Act. Under the provisions of NIA Act the court has the power to declare any witness(s) as protected witness and pass any order for his protection and safety. The power includes recording of his statement in camera. The prisoner had applied to the NIA Court for furnishing him the copies of the statements of thesewitnesses, who have been declared protected witnesses, but the court has informed his lawyer that he will be given the copies of the statements on the date of crossexamination, half an hour before. The prisoner had also filed applications under RTI Act for giving him the statements, but no information has been given to him.According to the prisoner the mood of the prosecution and the courts is totally biased and he expects a long drawn and a protracted trial of his case in which major portion of his youth will be consumed. According to the inmate he was interrogated in BSF CampChawlafor 13 days, where he was subjected to third degree torture and inhuman treatment by a team headed by the Chief Investigating Officer of NIA Mr. Rajit Singh, SP. According to the inmate the investigation of thecase was not fair and he feels that the prosecution is interested to book more and more persons in the said open FIR. According to him the allegations levelled in the charge sheet are baseless and fabricated. He stated that duringthe interrogation he was made to sign some papers and later on NIA came out with the fabricated a letter with the help of a computer purporting to be his handwriting. The letter is alleged to have been recovered from him at the time of his “arrest”. There are two cases as stated above pending against the prisoner in Designated court (TADA) and Sessions Court Baramulla where he is required to appear for facing the trial. However, by invoking the provisions of Section 268 Cr.P.C.(Central), the Delhi police has made his production in Srinagar and Baramulla courts impossible. Various legal questions arise about the arrest and shifting of Kashmiri prisoners facing trial in various courts in J&K to Tihar by invoking the proviosns of NIA Act.The very application of the NIA Act to the State of J&K is questionable. The prisoner stated that he had filed various applications under RTI act requesting for issuance of the copies of notification issued by the Central Govt. where under theprivisions of the NIA Act have been made applicable to the State of J&K but he has not been given any such notification as according to him no such notification is in existence.

The fact to be noted is that in the states where NIA Act has been made applicable, special courts have been created and the undertrials are tried in those courts and the accused are tried in those courts in their respective States. No such court has however been created or established in the State ofJ&K and the prisoners arrested in thestate under NIA Act are arbitrarily shifted to Delhi to face trial in an NIA court over there. The action of arresting and shifting of such inmates to Delhi on the face of it, is illegal and devoid of any sanction and needs urgent intervention by the members of the legal fraternity.

Mushtaq Ahmad Lone stated that he was called by police Anantnag on 17.06.2014. He went to the police station and after meeting the SHO, he was told to go home. He was again called on 18.06.2014 and brought to Srinagar and produced before the CJM Srinagar, who remanded him to police custody.He was kept at police station Rajbagh for three days and thereafter taken to his home wherefrom he was brought back to Srinagar and then on 24.06.2014 he was taken to Delhi. He was produced before a Magistrate at Delhi who without asking anything from the inmate, remanded him to 10 days police custody. It was during his police custody that he was told that the police has seized some documents from his home and that he too has been booked in FIR No. RC 11/2011. A second supplementary charge sheet was thereafter filed against him in the court on 15.12.2014 wherein 134 witnesses are listed. The allegation against the prisoner are that he has received Rs. 50.00 lacs and distributed the same amongst certain persons from November 2009 to February 2011, which according to the prisoner is totallyfalse. In his case also four witnesses have been shown as protected witnesses and he too has not been provided the copies of the statements of these witnesses. According to the prisoner there are two FIRs registered against him in Kashmir. One FIR is registered in Police station Shergarhi and another in Police Station CIK, Srinagar Kashmir. He has stated that he was also booked by police Sopore in a case, but he was granted bail by the court of competent jurisdiction in the said case. The allegations of that case are the same which have been levelled by the NIA in RC/2011 against him. He stated that ‘NIA has set up an illegal network in J&K’ and which is extorting money from the people. He stated that if there were any kind of allegations against him then the state police should have investigated the matter and should have filed a case against him in the court of law in J&K itself. He stated that the local police is helping the NIA in fabricating the cases against the innocent Kashmiri people. He also stated that in 2011 he was called by police station Rajbagh and some handwriting samples were taken from him and it was on 17.06.2014 that he was again called by the police but latter allowed to go home. He was again called on 18.06.2014 by the police Anantnag to the police station and brought to Srinagar wherefrom he was later flown to Delhi and later booked in FIR No. RC/11 of 2011.

Mohammad Sidiq Ganaistated that he was arrested on 12.01.2011 at Delhi when he had gone to condole the death of one of his relatives. He said that after his arrest he was booked in FIR No. 4/2011 u/s 17,18 and 20 UL(P) Act and 120-B IPC in which Ghulam Mohammad Bhat, Ghulam JeelaniLiloo and Farooq Ahmad Dagga are the other accused persons. He stated that during the last one year the cross examination is going on.

Mohammad Rafiq Shah stated that he was arrested from University of Kashmir Srinagar and taken to Delhi where he was falsely implicated in FIR No. 560/05 alongwith Tariq Ahmad Dar and Mohammad Hussain Fazili. He stated that the case is now at its final stage as the statement of investigating offider is being recorded by the court. He stated that the final verdict in the case is most likely to be pronounced within next three to four months. He state that though he is innocent and has produced ample proof before the court about his innocence but he does not know as to what would be the final order in the case. He said that besides FIR No. 560/05, two more cases under FIR No. 1120/05, FIR No. 533/05 have also been registered against him and the other two accused persons. He also stated that it may be a last meeting of him with the members of the Bar Association, as going by the trend and the past record of the Delhi Courts any order can be passed against him by the court.

The Bar members also talked to Amir Abbas Dev and Ghulam JeelaniLiloo who expressed the same apprehensions.

Jail no. 2

In the said jail there are three Kashmiri prisoners whose names are as under :

  1. MahmoodTopiwalaR/o MamarKangan.
  2. Shafaqat Ali TugguR/o Noorbagh Sopore.
  3. Tariq Ahmad Dar R/o Solina Srinagar.

MahmoodTopiwala stated that he is lodged in Tihar Jail from 1995 and by now he has completed 19 years of incarceration. He stated that he has been sentenced to life imprisonment and as per law after 20 years, he is entitled to be released. He however, stated that he is not sure as to whether he will be released after completing 20 years in the prison or not. He stated that he is working in a furnituremanufacturing unit of Tihar Jail and is earning some amount on which he is feeding himself and his family back at home, which comprises of his wife and threegrown up daughters. The prisoner stated that he is ill and suffers from High BloodPressure and Sugar. Occasionally he is given medicine and most often it is refused. He said that he has applied for parole and most probably in the month of April 2015, he may be granted parole for some time, so that he can go home and take necessary measures for the safety and security of his family.

Shafaqat Ali Tuggu stated that he was working as an operational manager in a private company at Delhi.He stated that he was arrested on 27.02.2012at Delhi and taken to Special Cell Lodhi Colony where he was interrogated for a number of days. He said that Ahtishamwho was putting him with him was also arrested on 27.12.2012 and later he, Ahtisham and Touseef Ahmad Pirwere booked in a false and some recovery was also shown to have been made from them he stated that the challan has now been presented in the court and charges have also been framed against them. He stated that the prosecution has cited 50 witnesses in the case but no witnesses haveso far been examinedby the court.

Tariq Ahmd Dar who alongwith RafiqAhmad Shah and Mohammad Hussain Fazili are facing trial in FIR No. 533/2005, FIR No. 1120/05 and FIR No. 560/2005 stated that he has been lodged in High Security Cell of Tihar Jail and his every movement is monitored by the jail authorities on a CCTV camera fixed in the cell. He stated that for the last nine years the trial of the cases registered against him and Rafiq Ahmad Shah and Mohammad Hussain Fazili is going on and now the statement of IO is being recorded. He also stated that the judgment in the case is expected now anytime,he however stated that the cases registered against him, Rafiq Ahmad Shah and Mohammad Hussain Fazili are fabricated and concocted. He even handed over a copy of the confessional statement of Assadullah Akhtar recorded by IX Metropolitan Magistrate CyberabadKukatpally at Miyapur, (RC No. 01/2013, RC No. 02/2013 of NIA Hyderabad) wherein the accused has admitted the commission of the crime attributed to Tariq Ahmad Dar, Rafiq Ahmad Shah and Mohammad Hussain Fazili. He stated that in view of the confessional statement of Assadullah Akhter he alongwith two other accused persons deserves an honourable acquittal from the case but the court is prolonging the trial for malafide reasons which are beyond one’s comprehension.

Jail No. 3

In jail no. 3 the following prisoners of J&K State were lodged.

  1. Mohammad Shafi Shah R/o Bandipora.
  2. WaseemAkram Malik R/o Kishtwar, Jammu.
  3. Mohammad Farooq Dagga R/o Kupwara.

Mohammad Shafi Shah stated that he was lodged in Central Jail Srinagar and was whisked away in a mysterious circumstance to Delhi and booked in a NIA case RC No. 11/2011. He stated that he had been arrested by police Ram MunshiBagh in case FIR No. 208/2011 and it was in the said case that he was remanded to Judicialcustody and lodged in Central Jail Srinagar. He had filed a writ petition in the Highcourt challenging his arrest and detention and the Hon’ble High Court had asked for status report, when he was taken to Delhi and booked in NIA Case RC No. 11 of 2011. The other accused of the case are Talib Hussain and 8 other persons who have been declared proclaimed offenders, besides Muzaffar Ahmad Dar and Mushtaq Ahmad Lone. He stated that like Muzaffar Ahmad Dar and Mushtaq Ahmad Lone, his case is also proceedings on a snail’s pace and he doesnot know as to when the proceedings of the case would come to an end.

WasimAkram Malik stated that he was a 4th year MBBS student of Jalalabad Ragib-Rabeya Medical College Sylhet Bangladesh,when he was arrested by Delhi police and booked in NIA Case FIR No. 09/2011 and subsequently lodged in TIhar Jail, Delhi. He said that he is registered with Medical Council of India as well, for undergoing medical education outside country. He said that in the case which has been registered against him there are 300 listed witnesses out of whom only 20 witnesses have been examined so far. He stated that 17 witnesses have also been declared as protected witnesses. He stated that for speedy trial of his case he needs legal aid and assistance as otherwise he would lose precious years of his life in jail and his academic career will also get ruined. He stated that since he had to appear in 4th year final examination he had requested the court to grant him bail or release him temporarily for facilitating his appearance in the final examination, but the court has not considered his request favourably and neither any bail has been granted to him nor has he been released temporarily so as to appear in the final year examination.

Farooq Ahmad Dagga stated that he was arrested in February 2012, and was facing trial in a case in the court at Kupwara. He stated that he was shown arrested in FIR No. 04/2011 registered in police station Delhi under section 17, 20 of UA(P) Act in 2011. He stated that the case is not making any progress and no proceedings are taking place in the court. He also stated that he needs legal aid and assistance for the speedy trial of the case. He stated that his prostrate has been enlarged and he has been advised treatment in AIMS four months back, but no steps have been taken by the jail authorities to provide him the said medical treatment.

Jail no. 4

In jail no. 4 the following prisoners of J&K State were lodged

  1. Latief Ahmad R/o Srinagar.
  2. Ghulam Ahmad KhajaR/o Poonch.
  3. Mohammad RafiqR/o Poonch.
  4. Ahtisham Farooq Malik R/o Sopore.

Ahtisham Farooq Malik stated that he has passed his B.Sc.(M.L. Technology) and that he was arrested from Tagulakabadextensionalongwith one Shafaqat Ali of Sopore, who is a B.Tech and was doing his job in Delhi, on 27.02.2012 and since then he has either been in police custody or in jail.He stated that Tawseef Ahmad of Sopore who was reading in 12th Class in Jharkhand was also arrested and later all the three were booked in a false case, challan whereof was presented in a court at Patiala by the police in which witnesses are being examined. He stated that he has been kept in High Security ward alongwith two other persons and he is facing lot of problems over there. He also stated that even though he is entitled like other prisoners to talk to his family members on phone, twice a week, but this facility has been denied to him and to other Kashmiri prisoners on malafide and extraneous reasons.

Similar kind of statements were made by the other inmates.

Jail no. 8

In the said jail, the following persons of J&K State were lodged

  1. Muhammad Aslam R/o Thana Mandi Rajouri.
  2. Tawseef Ahmad PirR/o Sopore.
  3. Mohammad Hussain FaziliR/o Srinagar.

Mohammad Aslamstated that he was arrested in 2009in Rajouri and brought to Delhiwhere he was booked in a case which is pending against him now in a court at Patiala House.He stated that the prosecution had cited 33 witnesses in the case whose statements have already been recorded.Now his statement u/s313Cr.P.C. is to be recorded. He stated that he was a student when was arrested in Rajouri and brought to Delhi in 2009 and was booked in FIR No. 50/2009 u/s 121, 121-A, 122, 123, 120-B IPC and 4/5 Explosive Act. He stated that two more cases have been registered against him in Mumbai and Gujarat and he expects his transfer either to Mumbai or to Gujarat any time, after the verdict in FIR No. 50/2009 is pronounced by the court. He stated that his brother was also arrested by the police and booked in a false case.

TawseefAhmad Pir stated that he was reading in 12th class at Jharkhand when he was arrested by the police on 27.02.2012 and later booked in FIR No. 06/2012 alongwithShafaqat Ali Taggu and Ahtisham Ali Malik. The Challan the case was thereafter presented in the court in which evidence is now being recorded. He stated that the case is now fixed on 20.02.2015 for hearing. He stated that a case is pending against him at Sopore and he is sometimes taken to the court for causing his appearance in the said case and sometimes he is not taken to the court which is also prolonging the disposal of his case over there. He stated that he had also engaged a counsel at Delhi and his family members had paid him Rs. 20000/- but later the counsel neither appeared in his case nor repaid the money.He wanted that the said money be recovered from the said counsel and paid back to him.

Mohammad Hussain Fazili stated that he was arrested in 2005 and booked in FIR No. 533/05 registered in police station Special Cell Lodhi colony Delhi. He said that two more FIRs bearing no. 1120/2005 and 560/05 have also been registered against him by the police. He stated that he is lodged in the jail since 2005 and has by now completed 09 years of incarceration. He said that the evidence in the case is complete and only the statement of the IO is to be recorded. He stated that the other accused in the case are Mohammad Rafiq Shah and Tariq Ahmad Dar. He also stated that in view of the confessional statement of Assadullah Akhtar, he alongwith the other two persons is entitled to acquittal but the court is prolonging the disposal of the case for unknown reasons.

After meeting the aforesaid prisoners, the bar team went to RohiniJail, which is at a distance of about 9 kms from Tihar.In the said jail the following prisoners of J&K were lodged :

  1. Talib Hussain R/o Bandipora.
  2. Ghulam Mohammad Bhat R/o Bandipora.

Talib Hussain stated that he was arrested by 13 RR and SOG personal of J&K Police on 04.09.2013.He said that at the time of his arrest nothing was recovered from him. He stated that on the basis of a letter addressed by Major Adjutnant of 13RR a report was entered in daily dairy of police Post Ajas which falls under the jurisdiction of Police StationSumbal Bandipora District. Thereafter a case bearing FIR No. 165 of 2013 was registered against him under section 212 RPC and section 7 of I.A. Act and investigation was started. He stated that he was interrogated for 11 days and thereafter shifted to STF Humhama, where he was ruthlessly beaten. He stated that at Humhama, Harmeet Singh, SP, ironed his back with rods due to which he sustained multiple injuries on his back. He stated that because of the use of hot iron rods, there are multiple scars on his back which has resulting in the swelling of his body and he is not now in a position to sit or stand. He stated that after torturinghimat Humama he was shifted to Delhiand after further interrogation was shifted to Tihar Jail. He stated that when he was produced for remand in the court, he showed his ironed back to the Judge, but the Judge did not take any notice of his injuries/bruises/scars. He said that he is married and has two daughters aged 3 and 1 ½ years respectively.

Ghulam Mohammad Bhat stated that he was arrested in Srinagar in January 2011and brought to Delhi and booked in RC (11) of 2011. He said that he is languishing in the jail for the last four years. He stated that he is an old man, having read upto PHD level. He said that at the age of 65 years he is suffering from backache and his L3, L4 and L5 Vertebra have suffered degeneration and needspecialisedtreatment. He stated that he is also a victim of legal tangle created by NIA who has arrested him without any legal authority. He stated that since the trial of the case is being held,awayfrom his home, his family members are suffering badly as they have to come all the way from Srinagar to Delhi to meet him. During the last one year the court where his case is going on has not been able to completethe statement of one witness.

After interacting with the inmates, the team members have come to the conclusion that the prisoners of J&K lodged in Tihar Jail suffer from afeeling of deprivation and helplessness.Being away from their home place, they are unable to have frequent interaction with their family members. They are not also able to meet their lawyers and receive medical care. The trauma of the fate of the trial of Mohammad Afzal Guru lodged in Tihar Jail, who was hanged in Tihar Jail itself, has also raised serious doubts in the minds of these poisonersabout their future. They feel that they can be picked up anytime for any kind of treatment as the courts are more sympathetic towards the prosecution than the accused.They also say that in other stated where the NIA has arrested any person, courts have been established in those states itself and those accused persons are being tried by those courts in their home states, however, in case of Kashmiri prisoners, no NIA court has been created or established in the state of J&K and anyone arrested by NIA is immediately brought to Delhi and prosecuted in NIA court over there. The Kashmiri prisoners have questioned the jurisdiction of NIA, as according to them, there is no notification in existence whereudner the Central Govt. has extended the provisions of NIA Act to the State of J&K, but the courts have over looked their objections and are proceedings with the case without first examining the jurisdiction aspect of the matter. The declaration of number of witnesses as protected one and non-furnishing of the copies of their statements is also a cause of concern of the Kashmiri prisoners, it is therefore, the dutyofeveryone, including those who claim to provide free legal aid and assistance to the detenues and undertrial prisoners to come forward and help these Kashmiri prisoners. The Human Rights Associations/Groups/Organisations also requiredto take note of the happenings and cometo the rescue of the Kashmiri prisoners. The Bar Association on its part has also decided to agitate the matter before the court of law to redeem the sufferings and miseries of the Kashmiri prisoners lodged in Tihar Jail Delhi. This report is accordingly prepared and circulated to all the concernedfor immediate necessary action.

 

Sd/-

  1. Mian Abdul Qayoom, Advocate, President.

Sd/-

  1. Mohammad Ashraf Bhat, Advocate, General Secretary.

Sd/-

  1. ArshidAndrabi, Advocate, Executive Member.

 

 

Copy forwarded to :

  1. Registrar Judicial J&K High Court, Srinagar, for placing the same on the record of O.W.P. No. 767/06 titled J&K High Court Bar Association versus State of J&K for the perusal of the Hon’ble High Court.
  2. To the Press for wide publication.
  3. Office file for record.

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