GN Saibaba: Bombay HC cites non-compliance with UAPA in arrest, search, seizure

Bombay High Court, in its order acquitting Professor G.N. Saibaba and five others, said there was "total non-compliance" of various provisions of the Unlawful Activities Prevention Act (UAPA) pertaining to arrest of the accused, and search and seizure operations. Saibaba, who is almost entirely disabled, has spent 11 years in prison.

A division bench of justices Vinay Joshi and Valmiki S.A. Menezes had acquitted all six accused because the sessions judge had framed charges against the appellants and examined the first witness without sanction.

In their order, the judges have noted that there was non-compliance with the provisions of sections 43-A and 43-B of the UAPA pertaining to arrest, search and seizure, and underscored that statutory presumption under section 43-E would not apply to the offences charged.

“We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice,” the judges stated.

Section 43-A of the UAPA deals with the power to search and arrest under the act, while 43-B states that any officer arresting a person under section 43-A shall, as soon as may be, inform him of the grounds for such arrest. Section 43-E is about the presumption as to offence under section 15, which defines what the punishment is for acts of terror.

The judges summarised that the entire prosecution is vitiated on account of invalid sanction to prosecute all the accused, included Prof. Saibaba, for want of valid sanction in terms of section 45(1) of the UAPA, which is about the cognizance of offences.

A sessions court had convicted the six accused in the case and cited them for having "links to Maoists", and for waging war against the state in March 2017 under sections 13, 18, 20, 38 and 39 of the UAPA and 120-B of the IPC.

First accused Mahesh Tirki was sentenced to 10 years, while third accused and former Jawaharlal Nehru University student Hem Keshwdatta Mishra, fourth accused Uttarakhand journalist Prashant Rahi, fifth accused Gadchiroli tribal Vijay Nan Tirki, and sixth accused Saibaba were sentenced to life. The second accused, Pandu Pora Narote, died of swine flu in August 2022.

The judges have noted that the prosecution failed to establish legal arrest and seizure from five of the accused, and failed to establish the seizure of incriminating material from Saibaba’s residence. “The prosecution has also failed to prove the electronic evidence in terms of the provisions of the Indian Evidence Act, and the Information Technology Act. As a result, the common judgment rendered by the Trial Court is not sustainable in the eyes of law,” the judges said in their order.

The judges have also held that the entire process of search and seizure from Saibaba's home is doubtful, and they reiterated that it was important because the whole prosecution depends on the said search and seizure.

“Though the entire process was videographed, the said material is not proved nor was the other panch examined. Panchnama does not bear reference to sealing and labelling of seized articles. We hold that prosecution has failed to prove seizure and search of incriminating material from the house search of Saibaba by leading credible evidence,” held the court.

The entire prosecution case is based upon three different seizures, on which a case of commission of offence under the UAPA has been built. The court has noted that even though no witness turned hostile, the several admissions given by these witnesses has created substantial doubt about the entire process of seizure. “We reiterate the importance of the seizure because the whole prosecution depends on the said search and seizure,” stated the judgement.

The court observed that though the raid was planned by high-ranking police officers aided by computer experts, electronic devices have not been secured at all. Apart from hash value, the unique identification numbers of the hard disk and electronic gadgets have not been recorded in the panchnama to vouch for its credibility.

“Though it was mentioned that the police sent requisition to the Maurice Nagar Police Station to provide the video recording done by their videographer, but, the Police avoided their request. Admittedly, no such written requisition was sent to the Maurice Nagar Police Station was produced in evidence. Besides that, video recording on mobile phone though allegedly done, was not tendered in the course of trial. It has been admitted that during the search that the panch and Saibaba were kept out of the house and that creates a doubt,” stated the order.

The judges said they had requested for the video as it had not been produced, yet it was still not produced. They have also noted that there was no evidence of the investigating officer about obtaining a search warrant under section 93 of the CrPC (Code of Criminal Procedure) as there is a marked distinction between a search warrant under sections 93 and 94 of the code.

A warrant under section 93 pertains to the production of documents or other material which are necessary for the purpose of investigation and which the court believes that a person, despite summons, would not produce. However, a warrant under section 94 relates to the search of a place suspected to contain stolen property or forged documents. The prosecution has not explained, the court said, if the warrant under section 93 of the code was obtained.

In October 2022, another bench of the Bombay HC comprising justices Rohit Deo and Anil Pansare had set aside the conviction, stating that the trial by the sessions court was void because there was no valid sanction under section 45(1) of the UAPA.

The court had underscored the importance of procedural compliance in cases involving terrorism, and emphasised that departures from due process could foster an environment conducive to terrorism.