Delhi Muslim Student Twice Arrested & Jailed. Not Enough Incriminating Material: Judge

07 Dec 2022 15 min read  Share

Muslim student Mohd Shoeb, accused of PFI-linked unlawful activities, was arrested twice in nine days and jailed for two months before a judge ruled the Delhi police did not have sufficient ‘incriminating material’ and granted him bail. Even though a magistrate ordered his release eight days after he was taken into custody, Shoeb told the court that he was never released from Tihar jail and that his subsequent rearrest violated Supreme Court guidelines.

Delhi University student Mohd Shoeb/SPECIAL ARRANGEMENT

NEW DELHI— In submissions before a Delhi court last month, Mohd Shoeb, a 22-year-old college student, said he was taken into “illegal custody” at 3 am from his house in Shaheen Bagh on 27 September and at no point did the Delhi police tell his family members the reasons for bringing him into custody and where he would be held.

On 28 November, additional sessions judge Sanjay Khanagwal granted bail to Shoeb and seven other Muslim men accused by the Delhi police of being members of the recently banned Popular Front of India (PFI) and advocating, abetting and assisting unlawful activities of banned organisations—the Rehab India Foundation, All India Imams Council and the PFI. 

The Delhi police accused Shoeb, Sheikh Gulfam Hussain, Abdullah, Mohsin Khan, Habeeb Asghar Jamali, Abdul Rab, Mohd Waris Khan and Mohd Shoaib s/o Mahmood Ahmed for raising PFI slogans in Shaheen Bagh and they claim to have recovered PFI flags and pamphlets of ‘PFI zindabad’ from them. 

While granting bail to the eight men, Khanagwal said the Delhi police had provided no “incriminating material”, bank details or call records to support their allegations that the accused were aiding and assisting any unlawful organisation, given that they were in custody from before the ban was made public on 28 September 2022. 

Khanagwal made the following observations: 

“The record shows at the time of the ban on PFI, the accused persons were already in custody.”

“The IO has not been able to show sufficient incriminating material against the accused persons collected during the investigative that as to when accused persons were in custody from 27.09.2022 and remained in Tihar jail till 4 October 2022 or 3 October 2022 then how the accused persons have carried out such activities which are aimed at advocating, abetting or inciting/assisting any unlawful activity of the unlawful organisation.”

“IO has submitted that the bank details of the PFI have been recovered and investigation in this regard is going on to establish the link of the accused persons with the funding in the bank account of PFI. The material collected during the investigation is silent as to the role of the accused persons in financial activities or in advocating the activities of unlawful organisation after its ban being its member.”

“So far as analysing the call detail records of the accused persons is concerned, they are already in the possession of the IO and even from that also, nothing could be shown to prove that the accused persons were involved in the unlawful activity from the date of declaring PFI as unlawful organisation till their arrest in the present.”

The first information report (FIR) 355/2022, registered on 29 September against unknown persons at the Shaheen Bagh police station, based on a complaint by a police inspector, invoked India’s anti-terror law, the Unlawful Activities Prevention Act, 1967 — section 10—penalty for being a member of an unlawful association, and section 13—punishment for unlawful activities.

Khanagwal noted these sections are not part of the strict restriction on bail under Chapters IV and VI (related to terrorist activities and terrorist organisations) as provided under 43-D UAPA. 

“There is no allegation of involvement of accused persons in any terrorist activities, and offence alleged against that accused persons is not punishable for more than seven years,” said Khanagwal in the bail order. 

Arresting Muslim Men 

The jailing of Shoeb and his seven co-accused mirrors other instances where the Delhi police have proceeded overwhelmingly against Muslim men: of the 18 people charged in the Delhi riots conspiracy case, 16 are Muslim even though two-thirds of the 53 people killed in the communal violence were Muslim. 

While granting bail to student activists Asif Iqbal Tanha, Devangana Kalita and Natasha Narwal, accused in the conspiracy case, the Delhi High Court said police had not made out a prima facie case of a terrorist act, and the use of “superfluous verbiage, hyperbole and stretched inferences”, did not make it one.  

Two years after the Delhi riots, the police said 2,456 people had been arrested—798 Hindus and 812 Muslims. In a series of cases granting bail,  Delhi courts said the police were responsible for “vague evidence and general allegations,” a “shoddy probe”, “absolutely evasive”, and a “lackadaisical” attitude. The police have been accused of investigations that are “callous”, “casual”, “farcical”, “poor”, or “painful to see”.

Indian Muslims make up 18.7% of India’s prison population, down from 20.3% in 2020, but still consistently higher than the Muslim population in India, 14.2% of 1.2 billion people. 

In September 2001, 12 Muslim men aged 30 to 51 were arrested by the Mumbai police and charged under sections 10 and 13 of the UAPA for “being workers of members of the then recently banned organisation SIMI”—Students’ Islamic Movement of India—were acquitted after 13 years by a metropolitan magistrate in Kurla, Maharashtra due to lack of evidence. 

Cancelling their bail bonds (they received bail a month in October 2001) and setting them free, the metropolitan magistrate, Ashish Ayachit, wrote, “The accused who are Muslims, will not, by itself, make a person members of SIMI, unless the prosecution has brought contemporaneous and trustworthy evidence, to show the active participation in the SIMI.”

The two FIRs registered in the case were for giving provocative speeches and distributing pamphlets outside the mosque in suburban Mumbai, according to media reports

Colin Gonzalves, senior advocate and founder of the Human Rights Law Network, said, “provocative speech is a fundamental right”. 

“UAPA must have a link to violence. It cannot just be provocative speech which is constitutionally protected," he said. "You can’t stifle freedom of speech. What is the government saying; you must be very polite while speaking about corruption and state terrorism in the country.”  

A report by the People’s Union for Civil Liberties published in September 2022, UAPA: Criminalising Dissent and State Terror, found that 69 UAPA cases were registered by the National Investigation Agency (NIA) when former prime minister Manmohan Singh and the Congress Party were in power from May 2009 to May 2014 (an average of 13 per year), and 288 UAPA cases were registered under Prime Minister Narendra Modi and the BJP from May 2014 till date (an average of 34 per year).

The home ministry in March 2021 told parliament 5,128 cases were registered under the UAPA in five years from 2015, with the highest numbers in Manipur and Assam. In December 2021, the ministry told the Lok Sabha that 57% of those arrested under the UAPA between 2018 and 2020 were below 30. 

Three days after Khanagwal granted bail to the eight Muslim men, additional sessions judge Pulastaya Pramchala discharged Muslim activists Umar Khalid and Khalid Saifi in a Delhi riots case noting the allegations against them were unrelated to this particular incident but the larger conspiracy case in which they remain incarcerated.

‘Taken Into ‘Illegal Custody’

Shoeb, who is pursuing the final year of the BA programme at Zakir Hussain college, told the court that he was taken into “illegal custody” at three in the morning on September 27 by 20 to 25 men, some in uniform and others in plain clothes.

Shoeb’s mother, Mumtaz Jahan, said the police searched Shoeb’s room, removing mattresses and checking his table. 

Shoeb and the seven other Muslim men were taken into custody under 107/151 of the Criminal Procedure Code, 1973, which allows for preventive detention if a person is likely to violate the peace or disturb public tranquillity. 

The notification banning PFI dated 27 September was made public on 28 September, 24 hours after Shoeb and the other accused were taken into custody. 

FIR 355/2022 was registered on 29 September, two days after they were taken into custody. 

The FIR says, “... even after the above proscription and notification, reliable information has been received that certain leaders, members and associates of the above referred unlawful associations in continuation of their unlawful activities are secretly conspiring to disrupt public order with the ultimate objective of targeting sovereignty and territorial integrity of India.” 

In addition to sections 10 and 13 of the UAPA, the FIR invoked section 120B–the punishment of criminal conspiracy, 153A–promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony of the Indian Penal Code, 1860.

“The leaders, members and associates of the proscribed unlawful association/s are, in continuation of their unlawful activities conspiring further to cause massive disruption of public order by promoting communal enmity and, for the purpose, are mobilising supporters for spreading incitement at various places including the declared and notified premises mentioned above and certain places of worship,” the FIR said. 

“In order to unearth conspiracy to lever by any deterioration of public orders and to curb the intended unlawful activities by the leaders, members and associates of the said proscribed organisations that an FIR be lodged and formal investigation be taken up,” it said. 

Shoeb’s bail application said that the FIR was registered on 29 September without disclosing the names of the accused persons, without disclosing the commission of the offence, but only on apprehension. 

“Activities alleged against the accused persons are primarily prior to the ban of the organisation and no incriminating material as such has even been shown against the accused person after the ban and notification in this regard,” his bail application said. 

A defence lawyer, speaking on anonymity as the bail applications were pending at the time of the interview, said, “The police cannot possibly make out a conspiracy against them because they have no material on record as all eight were in custody at the time.” 

Were They Released? 

As per his bail application, Shoeb was presented before the special executive magistrate, district south east, police station Amar Colony, on 27 September and held in Tihar jail even after the magistrate released him on a personal bond and surety on 4 October. 

Shoeb’s family, who say they were told that he would be released by nine in the night on 4 October, alleged the police never released him. 

“He was never released from Tihar jail,” said Mumtaz Jahan, his mother. “We were told he was released, but we never saw him come out of the gate.”

Hasman Jahan, wife of Mohsin Khan, a 40-year-old auto driver with three children, who the special executive magistrate also ordered the release of on 4 October, said she did not see her husband leave Tihar.

“I was waiting at Gate number 1 while my brothers were waiting at gate number 4," she said. "Even after waiting for my husband for two hours, he was not released.”

In an 18 point-submission opposing bail for Shoeb, dated 20 October, the Delhi police said they received information through a motor police vehicle at the police station Shaheen Bagh about some suspicious persons near Thokar No. 5, near a tempo stand, following which four people, including Shoeb and Mohsin Khan, were arrested. 

Two people escaped. During their search, the police say they recovered 22 flags of the PFI, pamphlets of “PFI Zindabad”, and the accused raised slogans in favour of the PFI and “Gajwa-e-Hind”. 

They were brought to the police station and handed over to Joginder Singh Joon, additional commissioner of police (ACP) Badarpur and the investigating officer of FIR 355/2022. 

The police said the accused persons were interrogated and arrested in the case after following due process of law. Their family members/relatives were informed about their arrest as per respective arrest memos. 

While the families of Shoeb and Khan say they were never released from Tihar jail on 4 October, if the police are to be believed, after being released from Tihar jail, Shoeb and Khan slipped past their families. They made their way to a tempo stand in Shaheen Bagh, where they raised slogans in favour of the PFI and “Gajwa-e-Hind” at 5:19 in the morning. 

The defence lawyers have said the accused persons were falsely implicated in the present case, and they were never present at the spot alleged against them.

Via orders dated 27 October and 31 October, Khanagwal asked for the CCTV footage of gates of jail number 1, 2, 3 and 4 and the main exit gate of Tihar jail for 2 October, 3 October, 4 October and 5 October, and the CCTV from the place of the arrest or the accused person, to be preserved. 

While the defence lawyers said the CCTV from 2 and 4 October showed the accused being picked up by police officials from the exit gate of the jail itself and taken to the police station for their false implication in the present case, Khanagwal said neither the people nor the registration numbers of the vehicles in which they were being forcibly taken is clear enough to decide. He left the matter for trial. 

During a remand hearing on 6 October, in response to a question by judge Khanagwal, the police said they have no independent witnesses to corroborate their allegations.

Police Oppose Bail

In their submissions opposing bail, the Delhi police said that Shoeb was a member of two banned organisations. They had recovered a visiting card where he was identified as the secretary of the National Confederation of Human Rights Organization (NCHRO), a banned PFI affiliate.

The police said the investigation was at the initial stage, the bank accounts details are yet to be examined and corroborated, and because Shoeb did not provide his bank account details in police custody. They had written to different banks and agencies to obtain details about his accounts. 

The police said Shoeb might require further custodial interrogation and, if released, may create a law and order problem.

“The accused is involved in this heinous case, and this involves spreading hatred between people on the basis of religion,” they said. 

No Information From The Police 

After various inquiries made by the family members after Shoeb was taken into custody, as per his bail application, the family discovered that he would be produced before the special executive magistrate, south east district, at 4:30 pm on 27 September 2022. 

His family were present with a personal bond and surety,  as per his bail application, but they were not allowed to communicate with him. They were not given the reasons for the police taking him into custody.

When they returned the next day to the office of the special executive magistrate, Shoeb was orally informed that he had been taken into custody under 107/151 and was remanded to judicial custody.

After the magistrate ordered his release on 4 October at around 5:45 pm and his family was informed that he would be released at around 9:00 pm on the same day, the application said, “The applicant was never released from Tihar jail. Upon enquiring again, the applicant’s family was incorrectly informed that he had been released from custody.”  

The family lodged a missing person report on 5 October at 10:13 am through an online portal and sent physical copies of complaints to various police authorities, including the station house officer of the Shaheen Bagh police station. They were informed on 6 October that he had been arrested on 5 October at five in the evening at the police station in Badarpur.  

The police said they received a call on 5 October to the police control room saying the accused was missing. This was made by Mohd Abuzar Choudhary—a reporter on this story who has known the accused since the protests against the Citizenship Amendment Act 2019, which started in Shaheen Bagh in December 2019. 

The police said they told Abuzar that Shoeb had been apprehended along with his associates and was found involved in activities related to the banned organisation. After the interrogation, the police said they informed the PCR caller, and Abuzar signed the arrest memo. 

In Violation Of Supreme Court Guidelines 

Defense lawyers say the manner of arrest and detention in this case violate Supreme Court guidelines. 

For instance, in D.K Basu vs State of West Bengal (1996), the Supreme Court said, “any person who has been arrested or detained or being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or known person as practicable that he has been arrested and is being detained at the particular place.”

As per his family members, following his arrest at three in the morning, they did not know his whereabouts or the ground for his arrest until 4:30 pm later that day. 

Khan’s wife, Hasmat Jahan, said she was unaware of her husband’s whereabouts for several days after he was taken into custody on 27 September. She did not receive an arrest memo after he was arrested on 6 October.

“None of the rules and orders under the Supreme Court were followed in this case,” Mujeeb Ur Rehman, Khan’s lawyer, said. “Even when he was arrested, the family was not told where and why he was being taken away.” 

Defense lawyers argued that in light of directions passed by the Supreme Court in Arnesh Kumar versus State of Bihar (2014) and Satender Kumar Antil versus Central Bureau of Investigation (2022), the investigating officer had violated guidelines of arrest; arrest should be the exception where the offence is punishable with less than seven years imprisonment. 

In granting bail, Khanagwal said he relied on both these judgments.  

 Toll on families 

Khan’s wife, Hasmat Jahan, who lives in a small rented room with her children and 80-year-old father, said that Khan was the family's sole earning member. He had taken a loan to buy the auto, and they had almost nothing in the bank. 

“After his arrest, we had to shift rooms due to various reasons, including the fact that we are not able to give rent,” she said. 

A mother to two daughters, aged 13 and 12, and a nine-year-old son, Jahan said that running to court was something she never imagined doing. 

“It was difficult for my father when we had to climb stairs because he can't walk without a stick,” she said. “My husband’s family is financially weak and lives in Uttar Pradesh, so we don't have any support from them.”

Shoeb’s mother, who stitches borders on dupattas for a factory,  said he was the eldest of three children and the first to attend college in their family.

“My husband and I did not study, but my son was always studious and had big dreams," she said. "Now, look at what they have done. They took an innocent child to jail and ruined his career.” 

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(Mohd Abuzar Choudhary is a Delhi-based independent journalist. Nikita Jain is a Delhi-based independent journalist.)