'Ghee' is code word for 'explosives' on what basis? Delhi court discharges four in terror funding case

Four men accused of terror funding have been discharged by a Delhi Court, which observed although money had been received through hawala channels, there was no evidence to show that any sleeper cell or hide outs of banned organisations had come into existence by use of these funds (National Investigation Agency v. Mohd Salman & Ors)..Additional Sessions Judge Parveen Singh in a 67-page discharge order highlighted that on the face of it, an illegality had been committed where money was being received through hawala channels. However, there was no evidence on record to indicate that a “sleeper cell or hide outs or base” of Falah-I-Insaniyat Foundation (FIF) or Lashkar-e-Taiba (LeT) had come into existence by utilising these funds..“Thus far, even the accused have not disputed that an illegal act was being committed and have contended that the accused may be prosecuted for those acts but not for terrorism or under UA(P) Act as there is no evidence for those offences,” the order stated..Mohd Salman, Mohd Salim, Arif Gulam Bashir Dharampuria and Mohd Hussain Molani had been chargesheeted for criminally conspiring to raise funds for terrorist acts, being members of a terrorist gang or organisation and holding proceeds of terrorism..Salman was alleged to have been in regular touch with a Dubai-based Pakistani national Mohammad Kamran, who in turn was connected with another Pakistani national and deputy chief of FIF Shahid Mahmood.He was also alleged to have been in touch with Salim, through whom funds were being received from Dubai. The prosecution submitted that phone call interceptions established “close connectivity” and fund transfer from Kamran to Salman via Salim.Dharampuria was stated to be an employee of Kamran’s since 2012 and was allegedly monitoring the distribution and usage of the hawala funds in India. Molani, on the other hand, was stated to be a hawala conduit based in Dubai who would send details to Salim including the name of the person to whom cash had to be delivered or collected, besides giving directions..The claims were refuted by the defence counsel, who argued that there was no prima facie evidence of the alleged money coming from a terrorist source. Even otherwise, the allegation against the accused was only of being a mere conduit who had no active knowledge of the purpose for which money was being transferred, it was contended. Thus, there was no prima facie case against the accused for funding terrorism or acquiring terrorist fund, the lawyers argued..According to the prosecution’s case, the money sent by accused Kamran to India had originated from FIF and, therefore, it was the money from a terrorist organisation. Resultantly, this would fall within the definition of terror funding.“The second aspect is that the money which was sent in India was to be used for terrorist activities. The stand of the prosecution is, that apparently this money was to be used for erection of mosque and marriages of poor Muslim girls etc., i.e. for religious and charitable purposes. However, the clandestine and real purpose of this funding was to create sleeper cells for Lashkar-e-Toiba and Jamat-ud-Dawa (JuD) operators,” it was noted..The prosecution had also contended that Kamran had conspired with wanted and designated terrorists Hafeez Mohd Saeed and Mahmood to send money in India apparently for charitable purposes, but in reality, this money was to be used to create sleeper cells.A compact disc (CD) recovered from Dharampuria purportedly containing a conversation between Kamran and Mahmood. The defence counsel contested the reliance on the CD, saying it was inadmissible evidence and was not an original piece of electronic evidence. .The Court observed that there was no reference by any of the accused of any money being sent or to be sent to India or any charitable activities being carried out in India. “Therefore, even if the contents of the CD are taken in totality, the said CD cannot be used to link money sent by accused no. 3 (Kamran) to India with FIF or Shahid Mahmood,” it stated..“It is from a fact that we can move towards a presumption but if the starting point of journey which leads to final presumption is a presumption itself, then drawing the final presumption on the basis of initial presumption is a very dangerous proposition,” the Court said.“I accordingly find that CD in question and the transcripts thereof, even if read in evidence, fail to raise a grave suspicion that accused Mohd. Kamran was a member of FIF or that the money set by Mohd. Kamran belonged to FIF,” it added..In addition, the prosecution had contended that there were two incriminating messages found on the phone of Salman, in which he had allegedly used the words “ghee” (clarified butter) and “khidmat” (service). It was alleged that “ghee" was a code word that might have been used for explosives or other substances and “khidmat” reflected that he knows the terror links of Kamran and that “khidmat” referred to an act done by the terrorists who undergo terror training..On this submission, the Court stated, “It is correct that the alleged incriminating message found in the phone of Mohd. Salman which states that ghee ka intezam ho gaya hai is definitively using certain code where the word ‘ghee’ stands for something which is not the literal meaning of this word. However, on what basis the prosecution states that the word ‘ghee’ is a code for explosives has not been specified.”According to the Court, the cipher on the basis of which the code was deciphered had also not been disclosed..“Even the Special PP in his own submissions has stated that it could mean explosives or other substances. Therefore, the word ‘ghee’ even according to the prosecution could not be taken to only mean explosives. Other substances could be any other substances or things and thus, on the basis of this message, no grave suspicion can be raised linking accused Mohd Salman to any terror activities,” the Court said.As regards ‘khidmat,’ the Court was of the opinion that the word could have two interpretations and unless the prosecution can establish that the interpretation which it seeks to give to the word can be the sole one, such meaning/ interpretation given by the prosecution cannot be accepted..“Although the activities of accused Mohd. Salman were suspicious in nature and he along with other co-accused was engaged in illegal activities of hawala transactions, however, the prosecution has failed to bring forth any evidence which would raise a grave suspicion that either the funds that were being sent from Dubai and were being received by accused Mohd Salman through other accused were terror funds / funds originated from terrorist organisation or that these funds were intended to be used for terror activities i.e. creation of sleeper cells/ sympathisers/hideouts/logistic support for the terrorists of LeT/ JuD and FIF,” it held..Senior Advocate Rebecca John led the arguments on discharge for Salman, who was also represented by Advocates Bhavook Chauhaan and Soutik Banerjee. Molani and Salim were represented by Advocates Tanveer Ahmed Mir, Prabhav Ralli and Tushan Rawal..[Read Order]