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A special National Investigation Agency (NIA) court at Patiala House, New Delhi has discharged four accused, booked under Unlawful Activities (Prevention) Act, for terrorist funding through hawala.

The special judge (NIA) Parveen Singh announced the judgment in open court on October 21 stating that the material placed before it was not sufficient to raise grave suspicion of commission of offences punishable under section 17, 20 and 21 of UA(P) Act and section 120B of Indian Penal Code by the accused persons.

There were allegations against Mohd. Salman, Arif Gulam Bashir Dharampuria, Mohd. Saleem and Mohd. Hussain Molani for being involved in a case pertaining to the "funds sent by Falah-e-Insaniat Foundation to India in the garb of charity and religious work but the real purpose was to create sleeper cells for Lashkar-e-Taiba". Both FIF and LeT are internationally banned terrorist organisations. 

Purportedly, confessions by Mohd Salman had led to the NIA raiding the mosque, that was allegedly run by funds from Lashkar-e-Taiba. 

Court said that although the activities of Mohd. Salman were "suspicious" in nature and he along with other co-accused were engaged in illegal activities of Hawala transactions, however, the prosecution had failed to bring forth any evidence which would raise a grave suspicion that either the funds that were being sent to or received from Dubai were actually terror funds.

Court added that the prosecution failed to prove that the money transacted was actually a fund originated from terrorist organization or that these funds were intended to be used for terror activities i.e. creation of sleeper cells/ sympathizers / hideouts/ logistic support for the terrorists of Lashkar-e-Taiba/ Jamaat-ud-Dawah and Falah-e-Insaniat Foundation.

Matter in Brief 

As per the chargesheet, the Central Government received an information that Delhi based Mohammad Salman was in regular touch with a Dubai based Pakistani National Mohammad Kamran who in turn was connected with Shahid Mahmood a Pakistani National and Dy. Chief of Falah-I-Insaniat Foundation.

The information revealed that Salman was receiving funds sent by FIF operative Mohammad Kamran and his associates, through Hawala operators as FIF had been trying to attract group of sympathizers and sleeper cells to create unrest in India by sending funds for anti-Indian and terrorist activities.

On this information, Ministry of Home Affairs directed NIA on June 27, 2018 to take up the investigation of the case. Accordingly, the present case was registered.

NIA's allegations

NIA had said that a conspiracy was hatched by FIF Chief Hafeez Mohammad Saeed, Deputy Chief Shahid Mahmood and Dubai based Pakistani National Mohd. Kamran andpursuant to that conspiracy, Mohd Kamran found an Indian National Mohd. Salman and took him into confidence for this purpose.

NIA had added that the money was sent for creating base and sympathizers for FIF operatives in garb of charity/religious work i.e. construction of mosques and marriage of Muslim girls.

It was further contended that despite the fact that Salman had bank accounts, he received this money in cash to avoid detection and to keep involvement of Kamran secret from the government agencies for many years.

NIA submitted before court that at the time of raids at the premises of Salman, huge amount of cash was recovered for which he failed to give any explanation.

NIA had also accused Md. Arif Gulambashir Dharampuriawas for being close confidant and accountant of Kamran and monitoring the distribution and usage of the Hawala funds in India., Mohd. Hussain Molani @ Babloo for transferring funds from Dubai to Delhi through his maternal uncle Mohd. Salim for Mohd. Salman and Mohd. Salim for being the main person acting as a conduit of the funds from Kamran through his nephew Babloo and delivering them to Md. Salman.

Contentions raised by Accused

Salman’s counsel had contended that though it was claimed by NIA that Salman was a member and representative of FIF, however, this fact was not even mentioned in the entire charge sheet and there was no evidence to show that he was a member of FIF.

Also, though Salman’s counsel had candidly accepted that the money was transferred through Hawala channels from Dubai to India but at the same time, she had contended that this fact had to be seen in its singularity in absence of any evidence of this money having been originated from Pakistan, or of Mohd. Kamran transferring this money.

Tanveer Ahmed Mir & Prabhav Ralli, Advocates appearing for Mohd. Hussain Molani and Mohd. Salim had argued that there was no prima facie evidence of the alleged money coming from a terrorist source.

Salim’s counsel had argued that the knowledge is a prerequisite for offences u/s 17 and 21 UA(P) Act, showing which there was nothing on record.

“Thus, he may have been charged for carrying out illegal activities but there is nothing on record to show that he was a part of the conspiracy,” Salim’s counsel had said.

Court's observations

Court noted that NIA had relied upon a CD that was recovered from Arif Gulam on which a conversation regarding the fund transfer was written to prove the guilt of the accused.

However, discussing the admissibility of this CD as electronic evidence, court reiterated the Supreme Court's ruling that for an electronic record produced before the court as evidence, if the primary source is not produced, it is only admissible on production of a certificate u/s 65- B Evidence Act and the admissibility of such document is completely governed by the provisions of section 65-B of Evidence Act.

Therefore, noting that NIA had not obtained any such certificate, Court held that in absence of that certificate u/s 65-B of Evidence act, the CD was not admissible in evidence and the contents of it could be considered.

Though, for the sake of argument, court agreed to evaluate the the contentions of prosecution on facts which emerge through this CD, but it noted, 

“I find that the contention reproduced above itself shows that there are many ‘ifs’ involved before this contention can be accepted and this contention is not based on facts but on presumptions which leads to a final presumption that Mohd. Kamran was a member of FIF.”

Therefore, finding that the conclusion raised on behalf of NIA failed the test of applying logical, deductive or inductive reasoning to reach at a conclusion that Kamran was a member of FIF, the court discharged all four accused for the offences charged.

Advocates Tanvir Mir Ahmed and Prabhav Ralli appeared for the appellants.

Case Title: NIA v. Mohd. Salman & Ors.