Yusuf Mohsin Nulwalla, who was convicted along with actor Sanjay Dutt in a Bombay blasts case, seeks commutation of his sentence on a technical point. If proved innocent, would this open a can of worms?
By Ramesh Menon
CAN you remember any ins-tance of an Indian court or government apologizing to an accused who went through a jail term after being wrongly convicted? There have been instances in the US and even conservative China where this has happened. In fact, in a rare move, a Chinese high court this month apologized to 19 people wrongfully convicted and imprisoned in 2012 on charges of illegal fundraising. The People’s High Court for the eastern province of Anhui had no hesitation in saying that it wished to restore their tarnished reputations.
This is significant as it has happened for the first time in China. It is well-known that Chinese courts controlled by the ruling Communist Party are largely seen by the outside world as one where political considerations hold sway most of the time.
In the case of the US, though the case dates back to 1921, it still has resonance. Injustice was meted out to Nicola Sacco and Bartolomeo Vanzetti who were wrongfully found guilty by a jury and electrocuted seven years later. A series of appeals followed, funded largely by a private Sacco and Van-zetti Defense Committee. The appeals were based on recanted testimony, conflicting ballistics evidence, a prejudicial pre-trial statement by the jury foreman and a confession by an alleged participant in the robbery. These appeals were all denied. Investigations into the case continued throughout the 1930s and 1940s. Ultimately, in 1977, Massachusetts Governor Michael Dukakis issued a proclamation that Sacco and Vanzetti had been unfairly tried and convicted and that “any disgrace should be forever removed from their names”.
In another case in the US, after more than two decades in a Washington prison, Kirk Odom walked free. He had been convicted of rape and robbery and was forced to register as a convicted sex offender. In 2012, the US Justice Department filed court papers saying that there was “clear and convincing evidence that Odom is innocent of the charges” and apologized for the “terrible justice”.
In 2011, New Zealand’s Associate Justice Minister Nathan Guy said his government unreservedly apologized to Aaron Farmer as he was wrongly convicted for rape in 2005. Farmer had spent over two years in prison. The government also paid $3,51,575 as compensation for wrongful conviction and imprisonment.
But in India, there has been no case where courts have apologized for a wrong decision though they have admitted review petitions or even changed their judgments.
This fortnight, legal experts in India were discussing this issue when Yusuf Mohsin Nulwalla, who has been convicted to undergo imprisonment of seven years in a case related to the Bombay blasts case of 1993, filed a writ petition seeking commutation of his imprisonment to three years. His plea was that he was in possession of a non-prohibited AK-56 assault rifle that is only a semi-automatic firearm. He also pointed out that the prosecution had not been able to produce any evidence to show that it was an automatic firearm which is prohibited.
If Yusuf’s claim that the weapon he had was not prohibited is true, then the charge under Section 7 of the Arms Act would fail. If he was let out of jail on this plea, many wondered if it would also include remission for actor Sanjay Dutt as he also was sentenced to five years along with Nulwalla. But for Dutt it does not matter anymore as he will be a free man in the third week of January 2016.
What has hurt both Nulwalla and Dutt is the fact that the media has always referred to them as terrorists accused in the Bombay blasts case when the fact is that they were not accused under TADA but the Arms Act for possessing a weapon. Both the TADA court and the Supreme Court have not held them guilty in the Bombay blasts case. But the press always refers to them as the Bombay blast accused.
But what has intrigued many observers is the fact that none of the lawyers or judges noticed that there was no evidence to prosecute them. The spring which was produced in court, which was ostensibly from a gun, was of a different size from that mentioned in the recovery list. So was the rod which was meant to clean the gun. The bullets that were produced in court were brand new when it was recovered from the sea bed after a month of it being there. No one asked why the bullets had not rusted and how they had fired when tested by the forensic department. This is the problem when not understanding criminal law in its totality.
The Indian judiciary is seriously short of lawyers who specialize in criminal law as well as judges who understand criminal justice. Significantly, a Supreme Court bench comprising Justices Ranjan Gogoi and Prafulla C Pant understood the point and conceded that the courts had overlooked that the weapon in Nulwalla’s possession was not prohibited under the Arms Act (See Box). The bench advised Harish Salve, Nulwalla’s counsel, to file a curative petition and agreed to keep his writ petition pending.
The charges framed by the TADA court said that Nulwalla acquired AK-56 rifles and cartridges and one 9mm pistol and cartridges which were smuggled into the country for committing terrorist acts and he destroyed the said AK-56 rifle with the assistance of a co-accused. Nulwalla was convicted for an offence punishable under the Arms Act and sentenced to rigorous imprisonment for five years along with a fine of Rs20,000. If he defaulted on the payment, he would have to undergo a prison term of another six months. He was further convicted for the offence punishable under Section 201 of the IPC and sentenced to rigorous imprisonment for another two years.
The convictions by the TADA court were given on November 28, 2006, and July 31, 2007, respectively. The conviction was based on the following facts:
1.During the investigation of the case, the prosecution claimed, that there had been recovery of parts of an AK-56 rifle that was prohibited. The recovered articles were placed on record before the TADA court as evidence Exhibit 3A and 3B—one metallic spring and one rod.
2.The court charged Yusuf Nulwalla with various offences, including possession of the “prohibited” firearm. After the trial, he was acquitted of all other charges, but was convicted of the charge of possession of a prohibited firearm by the TADA court.
An appeal filed in the Supreme Court in 2007 was dismissed. A review petition in 2013 was also dismissed.
Even assuming that the petitioner had possession of an AK-56 rifle and 9 mm pistol as alleged, the same would not be a “prohibited arm” in terms of law. The law is very clear that it has to be affirmatively proved that it is a prohibited weapon and in the absence of such proof, no conviction can be made. Secondly, the finding of guilt and conviction of Nulwalla under Section 7 of the Arms Act for alleged acquisition and possession of “prohibited arms” was not based on any adequate or sufficient evidence nor established beyond reasonable doubt at the trial. This aspect of the case was not placed before and has not been noticed by the TADA court and the Supreme Court.
Besides, both the AK-56 and 9mm pistol are per se not “prohibited arms” and the conviction of Nulwalla based on the assumption that the same were prohibited arms was contrary to law. In the trial court as well as the Supreme Court, the question whether the AK-56 that was allegedly in possession of Nulwalla fell within the definition of a prohibited arm, was not gone into.
Nulwalla’s conviction was based on a premise that he was in possession of an automatic weapon. The appeal was also decided on the premise that he was in possession of an automatic weapon. The courts believed the prosecution case that he was in possession of an AK-56 rifle.
The trial court and the Supreme Court held and affirmed the finding that parts like a rod and a spring recovered from him showed that he was in possession of an AK-56 rifle.
Besides, the courts failed to consider that the FSL report did not state whether the aforesaid parts of the weapon recovered established that the weapon that was allegedly in the possession of Nulwalla was a fully automatic firearm or a semi-automatic firearm. For conviction, it was essential to prove the acquisition, possession and carrying of “prohibited arms” and ammunitions by an accused. No evidence has been led to prove, beyond reasonable doubt, that the firearm in question is “prohibited arms” within the definition of Section 2(1) (i) of the Arms Act, 1959. The spring and rod recovered was not given a conclusive finding by any court whether they fall as a weapon which is a “prohibited weapon or arm”.
The case said that the arms were given to Nulwalla by Abu Salem. The Supreme Court had dropped eight charges against Abu Salem which were framed by the TADA court in the 1993 Bombay blasts case. Abu Salem had told the TADA court in August 2015 that he has not provided any AK-56 rifles to Nulwalla and Dutt. Salem was not charged under the Arms Act as the court accepted his plea that he never supplied the arms but Nullwalla was convicted as the police said that it was given to him by Abu Salem.
Even if the curative petition of Nulwalla reverses the final judgment and order of conviction and sentence of the TADA court and also the judgment passed by the Supreme Court, Dutt who is convicted in a similar case will not get any benefit as his term has almost come to an end. If the curative petition is allowed in favor of Nulwalla, he would be then seen by the court to have committed an offence punishable only under the Arms Act and not under TADA and the maximum sentence would be three years, which he has already completed and so can be let free.
Many are watching this case keenly and questioning whether there was a travesty of justice in the cases of Nulwalla and Dutt.