Tuesday, February 27, 2024

A breach of trust?

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Yakub’s death sentence has raised questions about the way probe agencies have made fugitives surrender after giving promises. With agencies having washed their hands off him, will new informants hesitate to come forward?

By Ajith Pillai

THE death sentence awarded to Yakub Memon raises a pertinent question. Sho-uld a deal brokered by the police or intelligence agencies that precedes the informal surrender by an accused be honored following his or her arrest? And, in good measure, though not directly related, it also puts a question mark on the manner in which the system allows witnesses to be coerced by vested interests to derail a case. In several such instances, the state, the police and the prosecution are guilty of hiding certain truths and backing the side they favor to subvert justice. This is the reason why several judicial experts, including judges and lawyers, have been strongly recommending the enactment of a law that provides for comprehensive witness protection. 

Also Read Ajith Pillai’s article on Anand Grover, civil rights lawyer on showing haste in Yakub’s execution. 

As for Yakub Menon, the prosecution’s charge, upheld by the TADA court in Mumbai, was that he conspired, aided and abetted in the planting of 13 bombs across Mumbai in 1993, which killed 257 and injured 713. He is said to have worked in tandem with his brother, Tiger Memon, one of the principal accused in the 1993 Bombay blasts case, who, along with Dawood Ibrahim, another key conspirator, are still absconding. The court sentenced Yakub to death in 2007. He is the only accused in the case to be handed the death penalty.
The date of his execution was slotted for July 30 when he approached the Supreme Court for one last time.


Under normal circumstances, Yakub’s case would not have attracted the public attention it has or courted controversy. But it did because of the publication of a column written by the late B Raman, who headed the counter-terrorism division of the Research and Analysis Wing (RAW), India’s external intelligence agency, when Yakub Memon had been persuaded to surrender in 1994. Raman had penned his revelations in 2007 and submitted it to news portal rediff.com after the TADA court had pronounced Yakub’s death sentence. However, Raman requested the website to withhold publishing his views since others “might escape as a result of this article if the higher court holds that the entire case has been vitiated as a result of the prosecution concealing a material fact from the sentencing court”. On July 24, rediff.com printed Raman’s column posthumously and it kicked up a storm.
What comes through from Raman’s column was a rumor that did the rounds among crime reporters in Mumbai when the police dramatically announced that Yakub had been arrested at Old Delhi Railway Station in January 1994. It was then said that the police had worked out a deal and that Yakub was promised a lenient punishment if he cooperated with the investigations. Raman’s revelations more or less confirm this.

Dawood Ibrahim-100291-BS

According to him, Yakub, who had fled with other members of the Memon family to Pakistan at the insistence of his brother, Tiger, was “informally picked up in Kathmandu… driven across Nepal to a town in Indian territory, flown to Delhi by an aircraft of the Aviation Research Centre (RAW’s air support wing) and formally ‘arrested’ in Old Delhi by the investigating authorities and taken into custody for interrogation.” The RAW officer, who enjoys an impeccable reputation, confirms that “the entire operation was coordinated by me”. According to him, the then prime minister, Narasimha Rao, was also kept in the loop.

Crucially, Raman goes on to say: “The cooperation of Yakub with the investigating agencies after he was picked up informally in Kathmandu and his role in persuading some other members of the family to come out of Pakistan and surrender constitute, in my view, a strong mitigating circumstance to be taken into consideration while considering whether the death penalty should be implemented.” In short, Raman’s plea was that Yakub should have been given a lesser penalty than what he was awarded.


Ever since the column became public, politicians, from BJPs Shatrughan Sinha to Congress’ Mani Shankar Aiyar and CPM’s Sitaram Yechury, have pleaded for a re-look at Yakub’s sentence. Former Supreme Court judge HS Bedi has suggested that the court should take suo moto cognizance of Raman’s column, while another former justice of the apex court, Markandey Katju, has said that there was “gross travesty of justice” in Yakub Memon’s case. Several eminent lawyers, politicians, former judges, actors, writers and human rights activists have signed a mercy petition and submitted it to President Pranab Mukherjee, urging him to stay Yakub’s execution.

From within the intelligence community, several former officials vouch for Raman’s credibility and say that what he has revealed must be taken seriously. AS Dulat, former RAW chief and National Security Advisor in the Vajpayee government, says: “It is brave of B Raman to speak the truth, I admire his courage…I totally believe what Raman says, I have no reason not to believe him.”

Dulat should know. In his book Kashmir: The Vajpayee Years, he talks of how he had opened back channel negotiations with separatists in Kashmir, befriended those who had taken to the gun and persuaded them to give up militancy and return to the mainstream. They were given concessions, sops and were even rehabilitated. All this was done informally and was based purely on trust. The big question that Raman’s column raises is, whether there was a breach of trust in Yakub Memon’s case.


This becomes pertinent when we factor in several cases where intelligence agencies may be employing the informal route to bring back those wanted by the law like, for instance, Lalit Modi. In fact, every now and then, one hears demands being raised to bring back Dawood Ibrahim and other criminals lodged in Pakistan. Since extradition from that country is virtually impossible, the only options are to capture them through a commando operation and run the risk of triggering a war with our neighbor or to work the back channels and make them surrender. But after Yakub’s experience, any informal assurances made by negotiators—including that of a fair trial—may lack credibility.
Why, even those brought back from PoK under a formal arrangement approved by the government, are arrested on trumped-up charges after they have crossed the border. Manisha Sethi’s book, Kafkaland—Prejudice, Law and Counter Terrorism, cites the illustrative example of 45-year-old Sayed Liyaqat Shah. His ordeal began in March 2013 when he was arrested at the Indo-Nepalese border and charged with plotting attacks on targets in Delhi during the Holi festival.

Shah was accompanied by his wife and daughter and was returning to India from PoK under the Rehabilitation and Surrender Policy of the J&K government, instituted three years ago. Under it, Indian citizens who had turned to militancy and had crossed the LoC could return to Kashmir once they declared their intent to lay down arms and return home.

Those opting to surrender and return are subjected to detailed checks by RAW, IB and the J&K police before their names are cleared. Shah was given the green signal after several months of scrutiny. But despite that, he was arrested by the Special Force of the Delhi police at the Sannauli check post, an entry point on the Indo-Nepal border. It was alleged that he was on the way to Delhi to pick up guns, ammunition, including hand grenades, and maps (indicating his targets) from a guest house in Old Delhi. The police charge was that he was being directed by his handler in Pakistan, who was coordinating the entire operation.

After the National Investigating Agency (NIA), which looks at terrorism-related cases, took over the investigation, it concluded that the police charge had no substance and had been cooked up. The guns and ammunitions were planted in the guest house by a police informer who was absconding. Shah was declared innocent in January 2015, almost two years after his arrest.


To come back to the Yakub Memon case, the-re are several imponderables. Was the informal understanding arrived at between him and Raman at the time of his surrender never communicated to the investigating agencies which took charge of him after he was “arrested” in Delhi? Or was this conveniently kept under wraps? Raman’s column suggests that the prosecution may have done so. To quote: “In their eagerness to obtain the death penalty, the fact that there were mitigating circumstances do not appear to have been highlighted.”

Justice PD Kode of the Mumbai TADA court, who pronounced Yakub’s death sentence, says that he was never informed of any “so-called surrender” or any agreement arrived at. This brings up the other question —why did the defense lawyers refrain from bringing up this aspect in court? Some legal experts point out that they may not have because there was no evidence to prove that anything was agreed upon.

Does Raman’s posthumously published column constitute any evidence? Perhaps it doesn’t, but it provides proof, in a manner of speaking, of a certain factor that mysteriously didn’t figure in the quantum of punishment that Yakub Memon was given.

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