Defence says affidavit ‘shoddy’,asks how can calls be analysed without hard copy

The Maharashtra anti-terrorism squad (ATS) filed an affidavit in Bombay High Court on Monday stating it destroyed call data records (CDRs) in the 2006 train blasts case as it had “no material which was relevant or useful…”

The Indian Express had earlier reported that in at least eight remand applications filed before a magistrate between August and November 2006,ATS had,among other reasons to seek custody of the accused,stated that cell phones seized from the accused needed scrutiny. In more than one remand applications,it claimed the accused had made calls “for contacting other members of LeT (Lashkar-e-Toiba) outside India…”

In a five-page affidavit,Inspector Sunil Wadke,who is now attached to Bhayander police station but was with the technical unit cell (TUC) of ATS between 2004 and 2008,stated,“…whatever data was received from the service providers was received in the form of soft copies and after studying the same,I had informed IO (Investigating Officer) ACP Patil that there was absolutely no material that was relevant or useful for the purpose of the matter under investigation.”

Wadke’s affidavit further states that the data from cell phone service providers was always obtained in the form of soft copies and if,after analysis,it was found to be relevant and required as evidence,it was obtained in hard copies with proper certification under the law.

“Since in this case,at no point,any relevant information was noticed on analysis of soft copies,there was no occasion to obtain hard copies,” Wadke said.

Thirteen alleged SIMI members facing trial in the 7/11 blasts case had moved Bombay High Court in September challenging the order of a special MCOCA court that rejected their plea seeking examination of three police officers and production of CDRs that ATS was using against them.

As per the procedure followed by TUC,Wadke stated,“If the data was not relevant to the investigation of the said case or was not useful,then on instructions of the DCP,it was deleted after filing of the chargesheet.”

Wadke,“custodian of such data”,said none of the CDRs relating to the mobile phones was relied upon by the prosecution in the 7/11 terror attacks chargesheet. “Therefore,after about a year the information which was obtained in the form of soft copies was deleted by me from the record.”

Defence lawyers Yug Chaudhry and Khan Abdul Wahab told the court the affidavit was “shoddy” and Wadke had made no mention of whose permission he sought for deleting the records nor did he state the exact date on which the records were erased. Chaudhry argued that there were rules for destruction of evidence in the police manual but the affidavit did not state which rules were followed. “How can records be analysed without getting hard copies? Police have to match the columns for calls made from a number to another number. It requires colour coding,” he said.

Public Prosecutor Revati Dere said it was only in 2012 that the defence realised it needed the call records. “If they thought the evidence was so crucial,they should have sought a restraining order against the destruction by nodal officers,” she said.

Chaudhry countered that the defence had been seeking the CDRs since 2006 and it was only before HC that the prosecution had said the records were destroyed.

Citing an example,Justice A M Thipsay said the court will have to independently examine the recourse it must take if a party says that it does not have certain records. He said if somebody thinks that a document is adversary to him,he may say he does not have it. “The question needs independent consideration. This cannot be brushed aside. It is an important trial,” he said.

The arguments are likely to be concluded on Tuesday.