IF THEY ARE HANGED TO DEATH…

If Jamiluddin Nasir and Aftab Ansari are hanged, the diabolical question will remain hanging inside the conscience of Indian democracy and the justice system: Who were those who were behind the American Centre attack in Kolkata, on a foggy, winter morning, in 2002? 

Sharib Ali Mumbai

“Inshallah kaam ho gaya (God is willing, work is done)” is what Gilbert Gomes and Shahid Iqbal heard the pillion rider of the bike say just before he got into a waiting blue Maruti car. The pillion rider, according to the deposition of Shahid Iqbal, Police Witness 62, was carrying a cricket bat cover with something inside it. And the blue car, with two people inside, was waiting for more than 10 minutes before they were joined by the two on a black motorcycle. After the pillion rider got into the car, both the car and the bike sped away.

It was 6.30 am on a perfectly ordinary morning on January 22, 2002, in Beniapukur—a suburb of a city which had just become Kolkata—and the two friends, Iqbal and Gomes, were having an early morning cup of tea when they witnessed the scene. Two hours later, Iqbal heard the news of the ride-by shooting in front of the American Centre which resulted in several deaths. He then went to the homicide squad of the Kolkata police in Lal Bazaar—located 10 kilometres away from the police station in Beniapukur—and informed a policeman known to him, apprehending, as the Kolkata High Court judgment points out, “that the morning incident witnessed by him might have some co-relation” with the attack. According to the deposition, he also gave the police officer the number of both the bike and the blue Maruti car—WB 01 P-2144 and BRK 4907, respectively. A few years later in court, Iqbal also identified Jamiluddin Nasir, the man alleged by the police as the organizer of the attack, as the person who was driving the car that day when he was drinking tea by the side of the road.

Shahid Iqbal is one of the three star eyewitnesses in the Kolkata American Centre Attack case, which concerns a shooting that took place at 6.30 am on a foggy winter morning, when two people on a bike opened fire at the guards outside the American Centre (also known as the United States Information Service—USIS) just when they were about to change shifts. Five policemen were killed and another 12 injured in the shootout, which lasted exactly 40 seconds.

The judiciary remains the last resort for justice. When Aftab Ansari and Jamiluddin Nasir stand in the Supreme Court, it will not be them, as the legendary human rights lawyer (late) KG Kannabiran pointed out, but the judiciary itself and our beliefs that will be on trial

The American Centre attack took place when more than half a million soldiers of the Indian army, in the largest military exercise in the recent past, were stationed at the Pakistan border. Amid the tense atmosphere following the December 13 Parliament attacks, with India and Pakistan on the brink of a ‘nuclear’ war, the shooting was announced by the Union Home Minister of the ruling NDA government, Lal Krishna Advani, as the handiwork of “a group connected with the ISI”.

Advani was speaking at an India Today Conclave about how the final call in the “eyeball to eyeball situation between India and Pakistan” would depend on Pakistan’s response to a request from India for the infiltration status of known terrorists. Since then, the investigation and court proceedings over the last 11 years have assumed a fixed pattern: the police, the courts, and all outside it—the media, and the shadowy political world—thus far have only linked the dots to the violent contours of a political narrative of terror born in 2001. And this joining of the dots has encompassed all forms of violence—fake encounter killings, custodial violence and false and extremely contestable, if not planted, evidence. Meanwhile, condemned as terrorists to be hanged to death, Aftab Ansari and Jamiluddin Nasir enter their final appeal in the
Supreme Court.

In the months succeeding the attack, nine were arrested, including Aftab Ansari — the alleged mastermind, who was extradited from Dubai. In 2005, the trial court acquitted two and awarded the death penalty to seven of the accused, under Sec 27(3) of the Arms Act, and Sec 121-A, 122, and 120-B of the Indian Penal Code (IPC), for conspiracy, waging war against the State and murder with a prohibited weapon, among other offences. After the judgment was pronounced, the defence lawyer remarked that it was “an unprecedented judgment, where a judge has pronounced the death sentence on the basis of the provisions of the Arms Act without even looking at the weapon that was used”. The judgment was indeed unprecedented. After the Rajiv Gandhi assassination case, it was the only circumstance in independent India in which so many accused were sentenced to death by a court in a single case.

 ‘There were several officers with guns. They asked me to escape. They were all smiling — “We will kill you in an encounter like Asif.” I agreed to do whatever they said…’

The prosecution’s account of the attack is a curious one, and the judgment borders on the improbable. This was highlighted by the apparent veering of the verdict between two judicial extremities—death penalty and acquittal. There are a total of 15 accused in the case. The bulk of the crime, including the shooting itself, rests on the six who have been shown as absconding. The nine accused who have been charged and tried have been accused by the police on extremely tenuous threads—either knowing or aiding those who carried out the attack.

In an encounter a week after the American Centre shooting, Delhi Police claimed to have killed Zahid, one of the assailants, while another, Sadaqat, allegedly escaped. The nexus between the crime and the accused, and the link between those arrested, were Aftab Ansari and Jamiluddin Nasir. Aftab Ansari, who was in Dubai at the time of the attack, had been “…giving necessary instruction initially to Nasir and then to Sadaqat through emails and/or phone”. Jamiluddin Nasir was the ‘chief local organizer’ who took a flat on rent where the conspiracy was planned, and later helped one of the attackers escape.

The high court judgment briefly summarizes the police case under the heading:

Reason/Jehad: Asif (Reza Khan) was killed in an encounter with the police at Gujarat. According to his associates it was a fake encounter and they wanted to take revenge. According to Nasir, as per his confessional statement, in December 2001, he went to his flat at Khan Road, Khirgaon, Hazaribagh, where he met Zahid, Sadaqat, Salim and Imam Hosain. Zahid and Sadaqat told that police had killed Asif and they would take revenge and they would not spare the Kolkata Police either as Asif was in police remand in Kolkata. They decided to blow off government buildings and carry out killing of cops. They would teach the police a lesson…

In the above assertion by the prosecution, apart from Nasir and Aftab, the roles of the other five sentenced to death by the trial court are difficult to discern. Three of them, accused in 2000 of printing fake tax tokens for Asif Reza Khan when he was alive, were convicted, on that evidence, for conspiring in the American Centre attack to avenge the killing of the same Asif. The other two, Monti and Adil, were convicted purely on the basis of passing references in the confession of the ‘chief organizer of the attack’, Jamiluddin Nasir.

The prosecution’s case against the five accused was so weak that the public prosecutor admitted the same in the High Court and left it to the court’s discretion. The court acquitted Monti and Adil, and reduced the punishment of the other three to five years of imprisonment based on Sec 467, 468, 471, for forgery etc., read with Sec 120(b), waging war against the State (though, strangely, not conspiring in the attack). By the time the High court judgment came, all five had spent more than eight years in jail.

There is something in the difference between the two judgments of the trial and High Court that bodes ill for Indian democracy. If the two judgments, based on the same evidence, could be so dissimilar that the accused veer from being threats to the State to be put to death, to free men against whom there is no charge, the very efficacy and legitimacy of courts to dispense justice comes under question.

Both Aftab Ansari and Jamiluddin Nasir’s death penalties have been upheld.

Their conviction is a strange story, for there is no direct evidence from the scene. In fact, a look at the case reveals that what direct evidence there is exists in police custody and is perhaps deliberately withheld. The evidence that has been tendered in court is circumstantial and has little to do with the attack itself. This problem of lack of any evidence that either Nasir or Aftab actually took part in the crime for which they have been sentenced to death was resolved by the judiciary by quoting earlier judgments.

The High Court judge points out in bold: ‘According to the Apex Court… Essential ingredient of a criminal conspiracy is the agreement to commit an offence. Such an agreement can be proved by direct evidence or circumstantial evidence. Once the agreement was proved, proof of overt act was not essential.’

Let’s look at the circumstantial evidence, the whole of which against Jamiluddin Nasir and Aftab Ansari is limited to a retracted confession, some emails and a letter. Their complicity in the attacks is based entirely on accounts by eyewitnesses who were nowhere near the scene of the crime—the majority of whom, like Iqbal, were drinking tea by the side of the road. These witnesses claim to have noted, and remembered, numbers of a car and a bike on different days in different places, which match those allegedly recovered from Nasir.

An examination of the circumstantial evidence reveals that it is not only contestable, but shows signs of
possible fabrication.

‘My wife was crying on the phone saying what is happening with so many strange men around her in the hospital. Tell me, what could I have done then? I told them, I will sign, wherever you want, and on any piece of paper’

Let’s take the example of the key witness, Iqbal. In his testimony, Iqbal says he saw a car and a bike 10 minutes after the incident, 10 kilometres away, and then went to inform a police officer and provided the numbers for both. There is no record that the police sent out an alert or search for the vehicles, the response one expects when police receive such information. The Kolkata Police were completely clueless about the perpetrators of the attack for an entire week after. Not once that week was there any mention of a car, nor the number of a bike, in the many press conferences, statements, and assorted media coverage. Moreover, the testimony of Iqbal arrived only after the police attempted to link Nasir and the car to the crime.

That Iqbal is a planted witness is possible where an entire institutional machinery—down to false and selective reporting, police violence for confessions, planted evidence—has worked to produce the accused as ‘terrorist’. It is as possible as a sentence of death by hanging based on circumstantial evidence to “satisfy the collective conscience of the people”.

What makes the Kolkata American Centre attack case dangerous for the nation is the collapsing wall between politics and justice in the courts. The contested testimonies of people having tea in a tea stall in the morning would be discarded by the judge as unbelievable in any ordinary trial; in the Kolkata case, where human lives depend on it, those very testimonies have been used to sentence Aftab Ansari and Jamiluddin Nasir to death. In many ways, which have nothing to do with the court hearings, the death penalty becomes necessary for the trial; finding the truth or meting out justice becomes a casualty, reduced to the theatre of the absurd in which someone must be found guilty to show that a job was done and done well, turning the doctrine of Res Ipsa Loquitur on its head: conviction proves guilt.

The investigation: Immediately after the January 22 attack, several newspapers claimed to have received calls from outfits like HUJI and Asif Reza Commando, claiming responsibility. One caller also identified himself as Aftab Ansari. (Aftab Ansari was then in Dubai, where he owned an electrical shop. He and others were also accused in the 2001 kidnapping of the Khadim shoe baron, Partha Roy Burman.)

Even before the calls to the press, the state BJP office received two, threatening to blow up the building. The caller, however, refused to identify himself to Salien Majumdar, the BJP state secretary, who picked up
the phone.

A few hours after the incident, when the Bengal Police was still collecting details, Advani made his announcement: “A group connected with the ISI of Pakistan was responsible for the attacks.” He pointed out that “a senior member of the group which had recently kidnapped a Kolkata businessman” had taken responsibility. The person, he added, “claimed to be calling from Dubai”. Advani refused to
elaborate further.

This assertion by the then Union Home Minister in Delhi raised several eyebrows within the Bengal Police, who, even by the next day, were still announcing, “We have not been able to confirm the claims made by certain terrorist outfits for the Kolkata killings.” On the same day, even the visiting FBI official announced “that it was too early to speculate who was responsible for the attacks”.

On January 28, a week later, the first breakthrough in the investigation came in the form of an encounter between the police and two alleged Pakistani militants, Zahid and Saleem, in Hazaribagh, Jharkhand. According to the police, Zahid made a dying declaration that he had fired on the police outside the American Centre in Kolkata. This encounter with two alleged ISI militants—the only proof of which is that their neighbour heard them say that they were from Pakistan—is significant to the case. It is a major piece of the prosecution’s case linking Jamiluddin Nasir and Aftab Ansari to the shooting outside the American Centre.

That morning, the Delhi Police, working on an Intelligence Bureau (IB) input not connected to the Kolkata attack, surrounded a house in the densely populated Muslim locality of Khirgaon in Hazaribagh, and shot both Zahid and Saleem. Police claimed they fired at them only when the two opened fire on the police with an AK-47. They were forced to retaliate. They also claimed to have recovered an AK-47, and a rent agreement in the name of Jamiluddin Nasir.

The incident has all the markings of fake encounters that accompany most ‘terror cases’ today—none of the policemen were hurt, and eyewitness accounts of local residents who gathered there reported that the police shot them when they were trying to escape. Residents also pointed out that they were not allowed to go near the injured terrorists and that they hadn’t heard the terrorists say anything.

According to the deposition of Kausalya Nand Chowdhury, Police Witness 113 and SI of Hazaribagh who accompanied the Delhi Police in the encounter, he heard Zahid make a dying oral declaration, wherein he “said that he executed the incident in front of the American Information Centre, Kolkata, on 22.1.2002, in which ‘Sadaqat was driving the motorcycle and I was sitting on the motorcycle with Sadaqat and I fired from this AK-47’.”

These last words, of which there is no evidence apart from Kausalya Nand Chowdhury’s own statement, curiously, comes from the Delhi Police. The Bengal Police expressed surprise, albeit ironically: “A dying man with such a severe wound could hardly be in a position to speak. A living Zahid or Salim could have been a valuable source of information to the police.”

The next day, Nasir was arrested from Kolkata. According to a disclosure allegedly made by him, the police raided an apartment at 1, Tiljala Lane from which they recovered a blue Maruti 800 car and a black motorcycle—each bearing the numbers Police Witness Iqbal later stated he had given to a police officer on the day of the attack.

Between the initial shooting and the raid, with the arrest of Nasir, Aftab Ansari had captured the imagination of the press. Raised to India’s Most Wanted list, the government sought his extradition from Dubai. Deported on February 8, Ansari was arrested on March 22. Around the same time, the police arrested eight others, and filed the chargesheet on April 26, 2002.

In 2008, when the trial in the High Court was underway, the Mumbai Police arrested, among others, Sadiq Sheikh—alleged to be the founding member of Indian Mujahideen. Police identified Sadiq Sheikh as the same Sadaqat who was absconding. For the last five years, while a chargesheet has been filed, Sadiq Sheikh remains untried. Police are attempting to dispense with the trials of the rest of the accused before they try Sadaqat, the ‘prime accused’. Another of the curiosities, like withholding primary evidence, that characterize this case.

Asif Reza Khan: A resident of Kolkata, he was 22 when he was first arrested under TADA, in 1994. A student at Aligarh Muslim University (AMU), Asif had just graduated from the well-known Maulana Azad College in Kolkata. He had Kashmiri friends at AMU with whom he lived in the hostel. The arrest was among the hundreds of incarcerations of Muslims across the country for alleged ‘jihadi’ links and disruptive activities pertaining to Kashmir. Also arrested under TADA then was Shahid Azmi—the lawyer who was later killed, defending those falsely accused in terror cases.

Asif Reza and Shahid Azmi spent five years in Delhi’s Tihar Jail, where they both met Aftab Ansari, who was arrested for abduction charges. Released in 1999, both Asif and Shahid, like most others released from prison, were rearrested in several cases, especially in the many high-profile cases of kidnappings of businessmen. After their release, all three of them—Shahid, Asif and Aftab—were accused in the kidnapping of Burman, the Khadim shoe baron from Kolkata.

By then, Aftab was in Dubai on a work permit after having been released on bail in 1998. Shahid and Asif were taken into custody and interrogated. Asif was also accused in the kidnapping of a Gujarat diamond merchant, Bhaskar Parekh. In 2001, immediately after SIMI was banned, the Gujarat Police took Asif into custody and brought him to Rajkot where they shot him on December 7—one-and-a-half months before the American Centre attack. The official police statement says that Asif, a member of SIMI, snatched the AK-47 from an officer and fired on the police in an attempt to escape; they shot him in retaliation. No policemen were hurt.

The entire case of the Kolkata attack is built on the assertion that Asif was a terrorist with links to “jihadi organizations”. If Asif’s friends and family are to be believed, he was murdered in cold blood. This is not an impossible charge in a decade of multiple fake encounters.

Asif’s case will remain another unknown, violent page in official files. Now, his alleged friends—most of whom didn’t know each other before being communed by the court—are accused of coming together to avenge his death as the ‘Asif Reza Commando Force’.  Let us again look at the evidence.

The official police statement says that Asif, a member of SIMI, snatched the AK-47 from an officer and fired on the police in an attempt to escape; they shot him in retaliation. No policemen were hurt 

Zahid’s dying declaration: Zahid’s extrajudicial dying declaration is in many ways ideal for the prosecution. For one, a police officer happened to witness it. Even more fortuitously, a rent agreement was recovered that lends support to the witness testimony. Also, a dead witness cannot contest the words put in his mouth or challenge the recovery allegedly made from him.

Kausalya Nand Chowdhury recorded that Zahid admitted firing on the American Centre by saying “…and I was sitting on the motorcycle with Sadaqat and I fired from this AK-47”. However, when the recovered weapon—the weapon to which Zahid referred, according to Chowdhury—was sent for forensic examination, the Forensic Science Laboratory (FSL) found that none of the 55 empty cartridges recovered from the attack site were fired from that gun.

The FSL‘s findings not only render Chowdhury’s statement—which even the Bengal Police found difficult to believe—unreliable, but suggests that the statement was a fabrication. When the defence cross examined Anil Kar, Investigative Officer, and Police Witness 123, he admitted: “I did not examine any of the doctors, staff, or nurse of the hospital at Hazaribagh where the injured were taken. I did not collect any injury report in respect of the persons died… I did not examine any of the persons of the locality to ascertain the activity of the persons died in the encounter…”

The investigating officer had done nothing to ascertain whether the statement of Chowdhury was credible or not, even when there are strong indications against its veracity.

In order to further support its claim that Zahid was involved, the prosecution produced a railway ticket and reservation chart record (January 23) in his name, from Kolkata to Hazaribagh. This exhibit, of which the High Court takes cognizance, is fraught with signs of tampering—Zahid’s entry was written with a pen, while the rest of the reservation chart is printed.

In January 2003, an AK-47 rifle with two loaded magazines and two 9 millimetre pistols were found under a drain in Kolkata, barely 10 metres from the American Centre. This discovery made headlines; the weapons were widely reported to have been used in the American Centre attacks. The Bengal Police officer-in-charge of the investigation said, “We will send the weapons to the Forensic Science Laboratory within a day or two to have the guns analyzed… This time, we will examine the rifle in detail—when it was last fired and whether the bullets match it or not.”

The weapons were never mentioned again; neither in the case, nor in a single report or statement by police. Their discovery is just there, hung somewhere in time—a real figment of a case that does not exist.

CCTV recording: (‘Faces of attackers on CCTV footage’: The Telegraph, January 25, 2002.)  ‘…Top police officials viewed the footage at a special screening arranged by the American Centre today…the footage accomplished three vital tasks, a top police official said. The camera not only briefly focused on the faces of the attackers, but the frame by frame sequence—lasting for about 40 seconds—also showed the motorcycle used and its number plate as well as the reaction of the policemen.’

Two CCTV cameras had been installed post-9/11 outside the American Centre. Recorded by those cameras, the attack received wide press coverage until the Hazaribagh encounter took place. In one of the newspaper reports, Soumen Mitra—then deputy commissioner in-charge of the investigation—even described the killers as “slim, clean-shaven and wearing crash helmets”.  After the Hazaribagh incident and the arrest of Nasir, when the bike and car allegedly used in the attacks were recovered, opinion on the CCTV footage suddenly flipped: Police denied that the footage captured anything at all.

The film—direct evidence from the scene of the crime—was never produced in court. When the defence cross examined the investigative officer, Anil Kar, he said, “ …nothing could be found out except movement of some points in a hazy manner. I asked for a clear version which they were unable to provide. I did not seize those video cassette clippings.”

Q: Did you make any plea in writing to the American Centre authorities to part with the photographs…for the purpose of investigation?
A: I did not make any writing to the American Centre authorities for obtaining these cassettes.
Q: Have you got any document to show that the American Centre authorities declined to part with the said video cassettes…?
A: I do not have any document. I did not record any statement of any officials of the American Centre for the purpose of investigation. I did not inform the superior officers in writing as to the refusal of the American Centre authorities to part with the said video cassettes…

Given that the footage could seal the fate of the accused—be they guilty or innocent—there is little doubt about the prosecution’s lack of interest. And there is still more direct evidence that the prosecution was being deliberately kept out of the trial.

There were 44 policemen at the scene of the attack. Of the 11 policemen who were examined in court, none admitted to having noted the number of the bike. According to the original FIR, a Kolkata Police Mobile Squad jeep—‘Tiger’—was within shooting range of the attackers and had sent a wireless to the police headquarters at Lal Bazaar at 6.36 am, reporting firing. ’Tiger’, however, did not pursue the attackers. In the court, police officers claimed to have noted faces and colours of clothes, so much so that they identified the photograph of Zahid one year after the incident—the High Court allowed these attestations. The same officers admitted that the “incident was so shocking” that they neither saw nor remembered the number of the bike.

While a total of 123 witnesses were examined, the two pedestrians who saw the attack—the only independent ocular witnesses—were never examined by the prosecution. Whatever evidence that could easily prove the guilt or innocence of the accused has been deliberately kept out of trial— something that the court did not take cognizance of. This begs the obvious question: Why was all this independent evidence suppressed? Could it be because it contradicts the prosecution’s version of the involvement of the accused in the crime?

The only possible explanation is offered by Justice AM Thipsey of Bombay High Court in another case related to this one. Sadaqat, or Sadiq Sheikh, after being arrested by the Mumbai Crime Branch, allegedly confessed to having executed the 7/11 train blast. By 2008, the Maharashtra ATS had arrested 13 persons accused in the blast, and the trial was underway.

In the improbable situation where two investigative agencies were holding two sets of people for the same crime, the trial court accepted the prosecution’s attempt to block the entry of the confession of Sadiq Sheikh as evidence, saying that it was not permissible for a variety of flimsy legal reasons—all of which the High Court judge later quashed. Ruling against the order, the judge also pointed out something extremely relevant in the American Centre case: “…The vehemence with which the reception of the evidence collected by its own agency is opposed by the state is difficult to understand…  Surely, it is not that the state thinks that its investigative machinery has fabricated the said evidence—at least that is
not suggested…”

So how does the prosecution link the car and the bike recovered from Nasir to the vehicles used in the attack? And how was Nasir put in the driver’s seat at the getaway?

The eyewitnesses: Apart from  Iqbal, whose unreliable deposition has been earlier mentioned, there is another star eyewitness in the case: Dilip Singh. The Kolkata High Court judgment states: ‘Dilip Singh (Police Witness 47), a promoter in Tiljala area, handed over flat at 1, Tiljala Lane to Niaz Hossain and Faiz Hossain. Nasir introduced Niaz to Dilip. Niaz converted one room in the flat as garage. Dilip identified the motorcar as well as the motorbike kept inside the said flat in question… On Janurary  21, 2002, early morning, Dilip saw Nasir taking out a Maruti 800 car from the garage at Tiljala Lane. While he was driving, Abdulla was sitting by his side. Two other unknown persons were following them on the black colour motorbike.’

Would it be, then, beyond the pale of reason to suggest that those who seem to benefit so much from it might just be the ones behind it, as evidence in many cases supposes?

Dilip Singh: The story of Dilip Singh is now well-known—not his story in the court, but as one of the many people who have been coerced, with false cases slapped on them, to deliver a false deposition. Dilip’s testimony was officially recorded on January 30, 2002: Police detained me falsely for 7 days in Tiljala P.S. (Police Station). I was detained from 30th Jan, 2002 to 7th Feb. I cannot remember how many cases were lodged against me by the police… the complaint against me was that I proceeded in dacoity. Police lodged that case against me. That case was disposed of on 7th Feb, 2002… Tiljala police took me to Bhawani Bhawan. I cannot remember the exact date when I visited Bhawani Bhawan, but that must be within the period of my detention, from 30thJan to 7thFeb. In Bhawani Bhawan, I was shown only Nasir and not several other persons…

Dilip and a neighbour, Police Witness 48, each with a similar deposition, are also listed as Police Witnesses 142 and 143 in Khadim’s abduction case. There, Singh stated that “he was unaware of what was done in Tiljala flat after it was taken on rent”. Police Witness 48, three years after his testimony identifying Nasir’s blue Maruti in the American Centre case, claimed the car was white in Khadim’s case. (The vehicles were identified only on the basis of their colour.)

Dilip and Police Witness 48’s conflicting depositions—as well as the miraculous disposal of the case against Dilip a week after his testimony was taken—point to the violent reality of their experience in police custody and so on. When the car and the bike were examined by the FSL, there was no gunshot residue found.

Every witness testimony revolves around facts derived from Nasir’s confession. There are two central pieces of circumstantial evidence that depend on it—the letter and the emails. Witness the entire case against Aftab Ansari:

Aftab Ansari: His story unfolds over phone calls from jail—precious time taken from the 200 minutes he gets a month. Speaking in the flourishing mix of Urdu and Hindi characteristic of those from Benaras, he narrates: “Tell me, how do I explain?... I was second year student of law from Benaras Hindu University (BHU) when I was arrested on charges of rioting and dacoity. It was a trumped-up case, I was later acquitted. However, I couldn’t continue law. In 1996, I was again arrested in the abduction case of Dinesh Thakur. I spent two years in Tihar Jail in Delhi, after which I was released on bail. I had to report every week to the police station. I was sick and tired. I went back home to Benaras, and was declared wanted in Delhi. I realized the only way I could escape was to go abroad. I got a passport done in a different name from Bihar, and then went to Dubai in 2000 where I worked in a shop. Then, I went to Pakistan, and got married. My wife and her family are all from India; they had migrated to Pakistan. I have a house there in Rawalpindi. I used to work in Dubai and visit my family in Pakistan. In 2002, they named me in the Khadim abduction case, along with a number of other cases. After the attack in Kolkata, they couldn’t find anyone, so they raised a hue and cry about me and got me deported. They were fooling the people—arresting me after the public anger over the Kolkata attack, while actually arresting me in the Khadim case…”

Is it possible that Ansari, “the mastermind giving necessary instructions initially to Nasir and then to Zahid and Sadaqat through emails and/or phone”, is telling the truth?

The letter: According to the prosecution, when Ansari was interrogated on April 2, 2002, he made a disclosure based on which there was a raid on the house of Asif Reza Khan, where they found a letter written by Aftab to the widow of Asif, expressing condolences for the sad demise of Asif. He informed the widow that the police had killed Asif in custody and Amir (brother of Asif, now absconding) was making preparation to take revenge.

The American Centre attack took place when more than half a million soldiers of the Indian army, in the largest military exercise in the recent past, were stationed at the Pakistan border

According to the police, the letter, written in Hindi, was sent by Ansari from Dubai and delivered by hand. The prosecution cannot produce any evidence of this episode apart from the letter. Neither is there a disclosure memo, nor Aftab’s signature on the seizure list—both practices brought in place to maintain accountability so that the police can’t attribute just anything to anyone. Surprisingly, the police did not call Asif’s widow as a witness—the addressee of the letter in question. Instead, the police examined Ali Reza Khan, Police Witness 39, who was also in the house when the raid took place. Nitya Ramakrishnan, defence counsel in the Supreme Court, writes of Ali Reza’s deposition in the special leave petition: Police Witness 39, brother of Asif Reza Khan, categorically deposed that the wife of Asif did not read or write Hindi…  Police Witness 39 further states that no letter or diary was recovered from the house of Asif Reza Khan, and, in fact, the police made him sign on the seizure list later with a back date on it.

Ali Reza Khan is a police witness, not a defence witness. From the police raid to the court was a difficult journey. Ali was called ‘hostile’ after his deposition, but there is nothing to support the prosecution’s claim that the letter or diary—which contains a few names and details of money transactions, all written by hand—actually belonged to Ansari. The police, not surprisingly, are also clueless as to how the letter
was produced.

The emails: Emails were exchanged on November 27 and 28, December 5 and 17, 2001, and January 8 and 9, 2002. After a combined reading of the emails, it appears that they were planning to arrange a flat as well as a Maruti car… two emails dated January 29, 2002, corroborate the involvement of Nasir and Aftab. Emails were exchanged possibly just before Nasir was arrested. The emails show that Nasir informed Aftab that Zahid was killed by the police.

The emails are another story. According to the prosecution, Nasir made a disclosure on February 12 about the emails which were then retrieved by the police. This time there was a disclosure memo, but something was missing—the email IDs and passwords. The only reference to emails in the entire case is in Nasir’s confession which has been retracted due to torture allegations. In the confession, Nasir provides some email IDs: Zforzapzap, Bforbapu, Aaamere7, and so on. Even in the report, there is no reference to the passwords. Still, curiously, according to the police, Nasir confessed on February 21. Yet, the police claimed to have retrieved the emails, inexplicably, on February 12.

This raises an obvious question: How were the police in possession of the emails without IDs or passwords? Or, in other words, how did they attribute the emails in their possession to Aftab, Nasir and others, when the only reference to them is in Nasir’s confession, which comes over a week after the police acquired them? These two questions point to a third: Is it possible that the email references were introduced into Nasir’s confession?

Jamiluddin Nasir: As distinct from Aftab Ansari, Nasir’s Urdu is tinged with Bihari. For a man who has spent the last 10 years of his life as a death row prisoner in a high security prison, Nasir sounds commonplace. In the first of our many conversations over the last three months, Nasir pointed out that he wasn’t even in Kolkata on the day of the attack; he had gone to his village in Bihar on January 21 to give some money to his father’s brother. He returned on January 27—a fact corroborated in court by both his father and his father’s brother, the person he had gone to visit. His story:

“…Asif and I were classmates, and good friends, in Beniapukur High Madrassa, where my father was a senior teacher of English. He used to come to our house for tuitions from my father. When he was arrested in 1994 we were all very surprised. Asif was a good student; you can ask anyone in the area where he lives, they will tell you that he was a good boy who was respected by others. By the time he came out in 1999 I had completed my BTech and was looking for a job… You know, after coming out from jail, he told me he just wants to settle down. He offered to start a small shoe business together in Kolkata. I agreed. Asif’s father was a promoter and he had some money. I introduced Nasir to Dilip Singh. Nasir rented the office. At that time there was no need to make a rent agreement. Tell me, if the plan was to attack the American Centre, would we rent a place which is three houses away from my own?...”

Nasir denies having any idea of Aftab Ansari, the emails, or of the attack on the American Centre. There is something brutally honest about the way he acknowledges his friendship with Asif, as well as the way he forcefully holds that he brokered the Tiljala flat for Asif, who took it on rent, and not Niaz and Faiz Hussain—information which could go against him. He points to a news report:

‘…Even though Interpol notice was served in the names of  Faiyaz and Neyaz Hussain, bearing number A 1287-12-2003 and 1288-12-2003 respectively, they are not traceable since the attack on the American Centre. Once the detectives had information that the duo were in Nepal… Now they are fairly confident that Faiyaz and Neyaz Hussain never existed. The fact, according to them, is that Nasir had accompanied Asif’s brother, Amir Reja Khan, and Khurrum Khaiyam. The landlord (flat/building owner) did not know them. He believed that Amir and Khurrum were Faiyaz and Neyaz Hussain and false signatures (false names) were recorded in the rent agreement.’

The doubtful existence of two of the absconders is not part of legal records of the case which relies on Nasir’s confession for most of its evidence and links. In the confession, Nasir brokered the flat for Niaz and Faiz, and a lot more—he provided an extensive plan of the attack, the way it was organized and executed.

The confession to a magistrate under Sec 164 of the Code of Criminal Procedure (CrPC) is one of the strongest pieces of evidence, primarily because of the safeguards put in place which make sure the accused is in no way accessible to the police or under any pressure from anyone to confess. A legal confession can only take place when a magistrate, after receiving a request to make a statement, sends the accused to be kept in seclusion for 24 hours for reflection. If the accused still expresses a wish to confess after that, the magistrate, after explaining the repercussions, will record the confession in the presence of no one but him and the accused.

On February 13, Nasir was taken into judicial custody. Nine days later, on February 21, the magistrate received a request from the investigative officer saying Nasir wanted to confess. The same day, without any record describing how the investigative officer and his constables had access to him, Nasir was produced before the magistrate with a request to confess. According to the magistrate’s official deposition in court, he sent Nasir to the Presidency Correction Home for reflection even though he maintained no record of what transpired between him and Nasir on February 21, and did not enquire where Nasir came from or where he was sent back to. On February 22, without asking where Nasir was coming from, the magistrate claimed to have recorded the confession in Hindi—Nasir does not know Hindi, but is fluent in Urdu, and even knows a bit of English. An official request sent to the Presidency Correctional Home corroborated the fact—Nasir was not there, according to their records, on February 21.

This joining of the dots has encompassed all forms of violence — fake encounter killings, custodial violence and false and extremely contestable, if not planted evidence

The other story of Nasir’s confession has to be heard in his own words: “…When I was arrested, the Kolkata Police announced it in a manner that was unbelievable: ‘Chief organizer captured alive, who was hiding at his in-laws place.’ It fitted well with the story they later concocted. But, actually, it was completely different. My brother, Saleem, opened the door to two plainclothes people, who very respectfully said salaam and asked, ‘Masterji, where is Nasir?’ They told my father, who was well known in the area as Masterji (teacher), that I had to come for some questioning regarding Asif. Both the officers were Muslims, and they assured my father that it was something minor. My father brought them to my in-laws’ place where I was staying with my wife who was eight months pregnant. When I went with them, my father wanted to come too. But, they said, ‘Masterji, he is our own kid. Don’t worry, we will bring him home ourselves.’ When we reached the Lal Bazaar Police Station, there were many officers. They all started jumping with joy. I couldn’t understand what was happening…Then began the torture. They asked me to sign on blank papers. I refused. On February 8, they took me to an open area next to the bypass. There were several officers with guns. They asked me to escape. They were all smiling—‘We will kill you in an encounter like Asif.’ I agreed to do whatever they said…

“…The next day they took me to a military camp. It’s a cantonment next to the new bridge, right opposite to a Kwality Walls ice-cream shop. There were several officers. They showed me Aftab Ansari on TV, saying we have caught your father. I was bewildered. They said you will get to know everything. Then they gave me blank papers to sign. I refused again, though fearing for my death…

“…You know how I finally relented? They told me if you won’t sign, we will get your wife here straight from the hospital. She can deliver her child here in this cantonment. I told them it’s not so easy, how can you do that? They immediately called someone and handed the phone to me. My wife was crying on the phone saying what is happening with so many strange men around her in the hospital. She was being disrespected. Tell me, what could I have done then? I told them, I will sign, wherever you want, and on any piece of paper. It was only later in court when I saw them testifying that I realized that the officers who met me that day were not just police officers, but the magistrate Uttam Kumar Singh himself, as well as the Solicitor General Alok Rai, and several others, were there…”

The prosecution’s case against the five accused was so weak that the public prosecutor admitted the same in the High Court and left it to the court’s discretion. The court acquitted Monti and Adil, and reduced the punishment of the other three to five years of imprisonment

This tragic tale of Nasir’s confession, now an almost common story of terror investigations and branding, exists beyond the legal and official boundaries of the case—unaccounted for, and unheeded. What does count, legally, is that there is no material corroboration.

The  contradictions: The prosecution, based on the confession, claims that emails were interchanged between Aftab and Nasir in August 2001. However, when the same email IDs—which are also part of the evidence in a POTA case in Delhi, No. 0013—were sent for examination, the executive from Hotmail replied that the emails were created only in November 2001. Same is the Tiljala apartment case in Kolkata. The prosecution contends that a conspiracy was hatched there between April-May 2001, while the rent agreement shows that the place was taken on rent two months later, July 1, 2001.

Given these contradictions and the magistrate’s glaring failure to adhere to procedural propriety in determining that Nasir’s confession was voluntary, along with Dilip Singh’s own fraught testimony, Nasir’s nightmarish version of how his statement was extracted seems true. It is not impossible that the same policemen, who tortured both Ali Reza Khan and Dilip Singh into giving false testimonies, could have used all possible means, including the magistrate’s willingness to overlook some logistical specifics, to retrieve a confession from Nasir.

Of course, the same policemen who would go to such lengths would know what they were doing. Fabrication is a word that cannot really be uttered, officially, unless by a judge.

Passing a judgment on a case that is still sub-judice is beyond the jurisdiction of research; the precedence of the Supreme Court’s judgment in the Parliament attack case, to sentence to death two people on circumstantial evidence, is worth remembering. 

Many institutions have taken recourse to subterfuge to prove the guilt of the accused. In the political hysteria that followed thesecond terror attacks in the country, Jamiluddin Nasir and Aftab Ansari’s every detail, down to things that don’t even belong to the confession, or are nowhere part of the case, were reported by the media. Aftab Ansari’s phone call—the backbone of the investigation as well as public discourse surrounding the attack—does not even find a mention in the official chargesheet. His arrest was announced by Atal Bihari Vajpayee, then prime minister of the BJP-led NDA, at an election rally in Meerut. Massive public opinion was drummed up after the attack—but the announcement skipped an important fact: Ansari was being extradited for an entirely different case.

Media was instrumental, and was used strategically, making people believe that Ansari and Nasir were guilty. Meanwhile, not one of the many serious and disturbing pieces of evidence that belied the prosecution’s case throughout the trial was allowed to reach the people—the trial was in-camera, with no journalists allowed to report. The silence that followed the police case and investigation was only broken by the trial court judgment, condemning seven to death. Justice seemed to have been done. If people believed that both were guilty, the collective conscience of the people had to be satisfied. And so, the High Court judgment followed suit. A complete reading of the over 80-page judgment will not inform the reader of a single contestation. None of the points raised in defence of Aftab Ansari and Jamiluddin Nasir were recorded by the judge; they were summarized in a single page.

The American Centre case calls for reflection because the stakes are high. It is not just about bullets fired at the police. The case was never about crime and justice. From the very start—in the way it was handled by the government—it was a spectacular political issue. Fervently commented upon in press conferences and statements issued by senior members of the political establishment, including  the Union home minister, the attack was immediately subsumed within a shrill war cry against Pakistan. In retrospect, the actual police killers continue to evade.

The attack was explicitly used by the then NDA government to drum up public opinion for war—without evidence. Political exigency was demanded from institutions of the State; this was nothing but a theatre of the absurd.

The state of exception—an extraordinary situation, propelled and sanctioned by the drumbeats of war, constituted by the twin discourses of ‘terrorism’ and the ‘security of the State’—has formed the ideological and legal framework for the suspension of fundamental rights of all those the government wanted to declare as ‘suspects’ (minorities, tribals, and the mutually inclusive category of political dissenters). This extraordinary process, whereby all politics of differences were criminalized, as the last decade testifies, was achieved not by the declaration of a general emergency, but by the slow and steady incorporation into the ordinary legal framework of processes and powers characteristic of a state of emergency—unlimited powers of arrest, detention, prosecution, torture, and immunity to police officials in the use of violence and State terror.

POTA, the most obvious manifestation of such processes, became a law two months after the Kolkata attack. But the politics of exception are certainly not limited to POTA. Over the last decade they have slowly eaten into the democratic fabric of fundamental institutions—police and the judiciary. Terror itself levies a state of exception. The Kolkata case is an example. Though the case is not under POTA, like many other cases, it reveals the powerful nature of the discourse of terror and security so loud  that the fundamental rights of the accused — not to be forcibly picked up from their homes, not to be produced as guilty until proven guilty and, most importantly, to be heard, to have the evidence be put on trial and not be spoken for by police only—were suspended. And they remain so in contemporary India.

The words of a judge seem relevant: “Personal liberty is a precious right. So did the founding fathers believe, because, while their first object was to give unto the people a Constitution whereby a government was established, their second object, equally important, was to protect the people against the government. That is why, while conferring extensive powers on the government like the power to declare an emergency, the power to suspend the enforcement of fundamental rights or the power to issue ordinances, they assured the people a Bill of Rights by Part III of the Constitution… Our Constitution makers had lived through bitter years and seen an alien government trample upon human rights which the country had fought hard to preserve… And, therefore, while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers are not used to mutilate the liberties of the people.

The shooting of police outside the American Centre is a horrendous act and it is the State’s duty to its people to bring the assailants to justice. But why is it that in 2002 a hysterical drum beat was orchestrated that this was nothing but waging war against the BJP-led NDA government?

‘And, therefore, while arming the government with large powers to prevent anarchy from within and conquest from without, they took care to ensure that those powers are not used to mutilate the liberties of the people’ 

‘Not every public display of purpose, or even demonstratively violent acts, amounts to waging war. What is determinative is the intent behind the attack. Merely because public installations and armed personnel are attacked should not lead courts to jump to the conclusion that it is tantamount to waging war against the government of India.’

The above contention by senior lawyer Nitya Ramakrishnana in the Special Leave Petition for Ansari and Nasir in the Supreme Court is important. The government, demanding POTA, most baselessly announced ISI’s involvement hours after the attack. The NDA and others used this law to violate the rights of people with impunity, in a collective celebration of State power.

There is more. Within two weeks of the attack, the government, by an amendment in the Information Technology Act, directed “any agency of the government to intercept any information transmitted through any computer resource if he is satisfied that such a measure is necessary in the interest of national security”. Does the idea of terror grant collective sanction for the State to amass powers which would be unthinkable in ordinary situations, powers which are then used to further the interests of those in power—as in Gujarat—to bolster communal politics by condemning an entire community as suspect? Would it be, then, beyond the pale of reason to suggest that those who seem to benefit so much from it might just be the ones behind it, as evidence in many cases supposes?

The judiciary remains the last resort for justice. When Aftab Ansari and Jamiluddin Nasir stand in the Supreme Court in the coming days, it will not be them, as the legendary human rights lawyer (late) KG Kannabiran has pointed out, but the judiciary itself and our beliefs that will be on trial. If Jamiluddin Nasir and Aftab Ansari are hanged, they will be two more innocents sacrificed in the political chess game of
‘national insecurity’.

However, that one dreaded question will never again be raised: So who were those who actually fired on the police outside the American Centre in Kolkata, on a foggy winter morning in 2002?  

Sharib Ali is Research Fellow at the Tata Institute of Social Sciences (TISS), Mumbai. Acknowledgement: The study owes itself to the efforts of Monica Sakhrani, Assistant Professor, TISS.