While many would say that the probe against Tunda was a hurried one and the police were unable to substantiate any of the claims, one also needs to spare a thought for the police since terror cases especially when it involves a mastermind or planner are extremely difficult to fight in the court of law in the absence of stringent laws.
This is the second time in two months that the Delhi Police are facing an embarrassment. Only recently had the National Investigating Agency absolved Liaqat Shah of all charges after the Delhi Police had arrested him and slapped terror charges.
Tunda who is wanted in 33 different terror related cases was arrested in August 2013. Charges under TADA for cases which had occurred between 1994 and 1998 had been slapped against him. The Delhi Police had also charged him under the Explosives Substances Act (ESA).
In both the Liaqat Shah and Tunda cases, the problem for the Delhi Police was the manner in which the explosives were recovered. In both cases the police had claimed to have recovered a large cache of explosives which they were never able to substantiate and this led to the discharging of both these persons.
Explosive recovery theory falls flat
The Delhi Police had been repeatedly asked by the court in the past about the slapping of TADA charges against Tunda. In a hearing that took place in 2014 the court had disapproved the slapping of TADA charges. However the court had then observed that the charges under the Explosives Substances Act appeared to be substantial.
The Delhi Police had claimed that they had recovered 150 kilograms of explosives on January 17 1994 and had even arrested five persons in this regard. It was during the investigation that the name of Tunda had cropped up which led them to filing charges under the TADA, a provision that existed at that time.
In the case of Liaqat Shah the Delhi police had a similar theory in which they had spoken about the recovery of explosives. The arrest of Shah was an embarrassment as he was part of the militant reformation programme. He was in fact coming back to India from Pakistan to undergo a reformation programme, but the Delhi Police arrested him and declared him a terrorist.
Tunda is wanted in 33 different terror related cases
The NIA which had probed the case had found several loopholes in the manner in which the Delhi Police had probed this case. The recovery of explosives which the Delhi Police tried to link to Shah had become the bone of contention which led to the NIA discharging him.
Hurried probe is buried probe
It has been seen in several cases that the police are extremely over-enthusiastic when it comes to probing terror cases. Many believe that in terror cases a conviction could be sought on public perception.
When the court heard the Tunda case last year it had completely disapproved the manner in which the Delhi Police had probed the matter. There is no proper investigation the court had held. The court had even directed the prosecutor to file his written submissions.
Last year the court had also held that it would not prolong the proceedings anymore. Charges under stringent Terrorist and Disruptive Activities (Prevention) Act (TADA) may not be framed against Tunda. However there is a prima facie case under the Explosive Substance Act against Tunda, the court had held.
The Delhi Police however were unable to sustain the charges under the Explosive Substances Act too. The police had claimed that there was evidence to substantiate their claims, but at the end of it never managed to convince the court.
Confessions never help
Several officers have seen to be taking a short cut route to substantiate their claims before the court. They rely very heavily on either narco analysis or confessional statements which never stand the test of judicial scrutiny.
Even in the case against Tunda the prosecution had relied heavily on the confessional statements and claimed that there was a major conspiracy to strike terror at the instructions of Tunda. However several judgments have clearly stated that a confessional statement can never be considered as solid evidence as most of the time they are extracted or given under duress.
Until recently the court had also relied heavily on narco analysis too. However narco analysis once again has not helped the investigations as it is not a fool proof method. One may recollect the mess in the Arushi murder case after the CBI had relied on a narco analysis. The names that were taken by the persons in the narco analysis were all wrong and this had led to courts telling the police not to rely on it.
All is not lost as yet
Tunda is said to be a major operative of the Lashkar. His name had figured in the list of most wanted following the 26/11 attack. India had in fact asked Pakistan to hand him over along with several other accused.
The police according to several officers should rely on circumstantial evidence. He may have been discharged by the court, but there are still several other cases pending against him and the Delhi Police would do well to ensure a conviction in those cases, officers state.
The confessional statements which the Delhi Police have should not become the main stay in the case. In fact they should be used as leads to get deeper into the conspiracy.
Spare a thought for the police
It may not be entirely right to blame the police in such cases. These cases are extremely difficult to crack. Ensuring the conviction of a foot soldier is very easy when compared to that of a master mind. People like Tunda have been away from India for over two decades now.
Such persons are never in the spot of action when an incident occurs. They never communicate over phone which leaves the police with very little material. The communications are very often direct with the conspirators and in several cases we have seen that the mastermind is not even directly in touch with the foot solider.
In such cases it is very difficult to bring forward direct evidence and satisfy the court. There is a lot of reliance on circumstantial evidence which is very difficult to substantiate.
An officer says that the task is no doubt herculean and there are stringent provisions under the law which are required to tackle such cases. However the problem is that in many cases stringent provisions such as TADA or POTA are misused which has led to them scrapped.