The prosecution had said that the sanction was valid and while the court had previously ruled that MCOCA and Unlawful Activities (Prevention) Act cannot be invoked together, the order was set aside by the Bombay High Court subsequently.In a recent order, a special court rejected the plea of two accused arrested in 2008 in connection with a ‘terror email’ case, seeking that charges under the Maharashtra Control of Organised Crime Act (MCOCA) be dropped against them. The case pertains to emails allegedly sent to TV channels on August 23, 2008, in which it was stated that terrorist organisation Indian Mujahideen was taking responsibility for the serial blasts in Ahmedabad in July 2008.
It was alleged that the emails were sent by misusing the IP address of a college in Mumbai. The police also claimed to have recovered arms and other incriminating articles from the accused. The accused have been behind bars in the case since 2008 and the trial is yet to start. Two of the accused, Asif Shaikh and Mubin Shaikh, approached the court recently, stating that the sanction under MCOCA was not properly accorded and hence charges under the Act should be dropped against them. The accused argued that the prosecution is required to show ‘continuous unlawful activities’ and two previous chargesheets to invoke MCOCA. The accused submitted that the prosecution at the time of seeking sanction was unable to fulfill these conditions. It was claimed that there were no previous chargesheets against Indian Mujahideen at the time and no reference of an organised crime syndicate in 2008.
The prosecution had said that the sanction was valid and while the court had previously ruled that MCOCA and Unlawful Activities (Prevention) Act cannot be invoked together, the order was set aside by the Bombay High Court subsequently. The prosecution also relied on confessional statements of the accused claiming that they were involved in terrorist activities. The Mumbai Police Crime Branch also referred to previous cases filed against co-accused Afsar Usmani.
“It is not the requirement of the law that the name of the organisation should be mentioned in the chargesheet. The previous chargesheet shows that the accused no.1 along with other accused is chargesheeted for various offences. There is no material on record to substantiate the contention made by the learned advocate for accused. There is ample material against the accused to show prima facie case against them,” said the court.
It added that the accused’s contention – that the previous chargesheets were not filed against Indian Mujahideen but against the organisation FazalUrRehman – “is a disputed question of fact and could be decided only after leading of evidence during trial.”