Elgar Parishad: Report citing proof was planted can’t be considered now, says NIA

The National Investigation Agency (NIA) has opposed the petition filed by Elgar Parishad accused Rona Wilson, seeking the quashing of the case against him on the basis of a report by US-based digital forensic analyst Arsenal Consultancy, which had stated that a crucial piece of evidence was planted on his computer

The National Investigation Agency (NIA) has opposed the petition filed by Elgar Parishad accused Rona Wilson, seeking the quashing of the case against him on the basis of a report by US-based digital forensic analyst Arsenal Consultancy, which had stated that a crucial piece of evidence was planted on his computer. NIA contended that the report cannot be taken into consideration at this stage for quashing of the case against him.

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In an affidavit in reply to Wilson’s petition, the federal agency said that the report does not form part of the charge sheets which are filed by the respondent (NIA) and Pune Police.

“It is settled position of law that documents which are not part of the charge sheet cannot be relied by the petitioner, and as such, there is no question of looking into the report of M/s. Arsenal Consultancy, and as such, the entire contention of the petitioner deserves to be rejected as the same are based on the report which does not find place in the present charge sheet,” the affidavit stated.

NIA maintained that if at all the report can be considered, it can be done only during trial.

“If at all the petitioner wants to rely upon the same [Arsenal report], the only avenue available to him is at the time of leading evidence. The petitioner can very well lead evidence in respect of the same and then prove their case [without admitting that the said case is genuine],” the affidavit stated.

Wilson has moved HC in February for quashing of the case against him on the basis of the Arsenal report, which stated that the computer system of the accused was attacked with a malware and the attacker monitored the system for a period of about 22 months, starting from June 22, 2016. The attacker, according to the Arsenal report, had created a hidden folder on Wilson’s laptop on November 3, 2016, and last modified it on April 16, 2018. The pen-drive and other external devices connected to the laptop were also compromised and the malware had synchronised the same.

On the basis of the report, commissioned by the American Bar Association, Wilson claimed that the attacker had control over the computer and used virtual proxy server (VPS), making it difficult to identify the exact internet protocol and identity of the attacker who had allegedly planted a letter on the laptop, which was being relied by NIA to build a case under provisions of the Unlawful Activities (Prevention) Act.

Wilson has not only prayed that the FIR and charge sheet filed against him and other co-accused be quashed, but also sought an order to set up a special investigation team (SIT) headed by a retired Supreme Court or high court judge to conduct a forensic analysis of the of the electronic evidence, claimed to have been collected by police against them, and to compensate them for their wrongful detention in the case.

NIA has denied the allegation that Wilson was falsely implicated in the case “by planting of false evidence” on his laptop.

“There is no question of accepting the contention of the petitioner regarding planting of false evidence or fabricating of the evidence,” stated the affidavit.

“Going by the case of the petitioner himself that the alleged attack had taken place even before the FIR (first information report) was lodged, it is for the petitioner to explain as to how this attack has taken place when the device was in his control. As such, the petitioner cannot blame some other person, leave aside independent agencies like the present respondent,” it the affidavit added.

Wilson and others have been arrested in connection with the offence registered by Vishrambaug police station in Pune on January 8, 2018, on the basis of a complaint lodged by a local builder, Tushar Damgude.

The builder had alleged that members of banned outfit Communist Party of India (Maoist) and Kabir Kala Manch spread hatred through provocative songs, plays and speeches during the Elgar Parishad conclave held at Shaniwar Wada on December 31, 2017. The provocation led to the violence at Bhima Koregaon in Pune district, Damgude had alleged.