Bhima Koregaon: Surendra Gadling seeks time to reply to ED’s notice to record his statement

ON July 28, the Enforcement Directorate ('ED') approached the special National Investigation ('NIA') court, presided by Special Judge Rajesh Kataria, seeking permission to record human rights lawyer and Dalit rights activist Surendra Gadling's statement for his alleged connection with money laundering.

Gadling is an accused in the Elgar Parishad-Bhima Koregaon case, and is lodged in Taloja jail. He has been in detention for over four years now, having been arrested in June 2018.

The interrogation is based on an enforcement case information report (ECIR) registered against Gadling under the Prevention of Money Laundering Act, 2002, in March last year. The ED alleges Gadling's involvement in the fundraising and disbursement of funds for "violent activities". It has linked its probe to the existing Bhima Koregaon case being investigated by the NIA.

Representing the ED, Special Public Prosecutor Sunil Gonsalves submitted that it would record Gadling's statement in jail, and hence, a notice was not required. Noting that the ED will not be prejudiced, the court issued directions for the issue of a formal notice to Gadling. Consequently, a notice was served to Gadling in jail on July 28.

On Friday, Gadling prayed for time to file his reply. Granting his request, the court posted the matter for Gadling's reply to the ED's formal notice on August 10.

On Friday, the special court heard Gadling's application, which was earlier filed, praying for letters addressed to him to be opened in his presence, and for action against the jail authorities for not following the protocol in delivering him his letters and money orders. According to Gadling, his wife and colleagues have written him letters that were opened in his absence and not accepted to be delivered to Gadling without citing any reason. He also claimed that money orders were not delivered to him, causing him a loss.

Lawyer and activist Arun Ferriera, a co-accused in the Bhima Koregoan case and in custody as an undertrial in the same since August 2018, had earlier sought directions to the prosecution to provide a copy of the formal order of the interception by which his emails (electronic evidence) were intercepted. On Friday, Ferreira argued that the seizure and analysis of the same by the NIA fall under the expansive definition of 'interception' under Section 69 of the Information Technology Act, 2000 ('IT Act'), which mandates a prior formal order.

Representing the NIA, Public Prosecutor Vishal Gautam argued that all due measures were complied with, namely conducting panchanama and recording its audio and video. Gautam claimed that since the communication and emails, as retrieved from activist and researcher Rona Wilson (co-accused in the Bhima Koregaon case), were going on for a long period and not at the time of the seizure, the provision of interception under the IT Act is not attracted. To this, Ferriera reiterated that the retrieved emails were seized on the same day, within a couple of hours of being sent.

The court posted the matter to be heard on August 10 for orders on Ferreira's application.

On Friday, the advocate for activist and journalist Gautam Navlakha, Harshwardhan Akolkar, gave a rejoinder to the reply by the Special Public Prosecutor for the NIA, Prakash Shetty, to Navlakha's bail application before the special NIA court. Navlakha, another co-accused in the Bhima Koregaon matter, was arrested for his alleged involvement in the case in August 2018. While he was initially kept under house arrest, he was subsequently sent to judicial custody in April 2020, and is currently lodged in Taloja jail.

Akolkar submitted that the entire case against Navlakha is based on communication, and such communication per se with alleged members of the banned Communist Party of India (Maoist) is not illegal. As guaranteed under Article 19(1) of the Constitution, advocacy and discussion of an idea are not offences within the law, Akolkar stated. Further, Akolkar reiterated that Navlakha has been lodged in custody for two and a half years, and is turning 70 years old.

The main contention of the bail application is that no offence against Navlakha was made under the Unlawful Activities (Prevention) Act, 1967. The application submitted that under the chargesheet, there was not a single mention of any terrorist act by Navlakha. Akolkar argued that since the entire case of the prosecution is based on documents, and with the prosecution having failed to provide Navlakha with cloned copies, the case against him was not substantiated.

The court is likely to take up Navlakha's bail application on August 10 for orders.

The prosecution in the Bhima-Koregaon has filed three chargesheets exceeding 5,000 pages, and intends to cross-examine at least 200 witnesses. Thirteen of the 16 accused persons have now spent between almost two to over four years in judicial custody without trial, with one of them, Fr. Stan Swamy, having passed away in judicial custody in July last year after contracting COVID in prison while awaiting bail on medical grounds.

An independent investigation by Arsenal Consulting, a leading and independent expert firm on digital forensics, has revealed that sophisticated malware were used to plant the digital evidence that forms the basis for the prosecution's case on the devices of Wilson and Gadling. Arsenal's findings were published in four reports last year.

Last year, it was also revealed by an investigation by a consortium of 17 media organisations across the world that eight of the accused persons in the case were targeted for snooping through the Pegasus spyware. Subsequently, the Supreme Court appointed a Technical Committee to investigate the allegations of surveillance by several civil society members; the Committee, at the insistence of seven of the accused persons and their counsel, took possession of the seven persons' mobile phones to inspect if they were infected with Pegasus, earlier this year.