But asked by the 13 men to produce the CDRs that were being used against them, the ATS, it has now come to light, has said it does not have these records. And the agency has argued that it need not produce them as they were not a part of the chargesheet filed in the case, whose trial is yet to conclude.
The suspects had first made the demand for the records in the MCOCA court earlier this year. After the ATS told the court in July that it did not have CDRs going back to 2006, the 13 men took their case to Bombay High Court last month. The high court is due to hear their case on Tuesday.
Documents in the possession of The Indian Express show that the ATS repeatedly cited the analysis of CDRs and seized mobile phones to seek the custody of the suspects in the months after their arrest in 2006. Some of the instances when the ATS referred to the CDRs include:
* Remand Application (RA) filed before the Mazgaon court on 17/8/2006 by chief investigating officer B B Rathod seeking the custody of Kamal Ahmed Ansari (accused No.1), Khalid Aziz Shaikh (accused No.2) and Mumtaz Ahmed Choudhary (accused No.3) says: “Accused numbers 2 and 3 have also been found in possession of cell phones. Their call records are also obtained for the purpose of comparison with other arrested including accused No. 1. (sic)”
* RA filed before the Mazgaon court on 17/8/2006 by inspector R R Joshi seeking the custody of Dr Tanvir Ahmed Ansari says: “The seizure of mobile phone from his brother Ishtiyaq Ahmed Mohd. Ansari as late as on 16/8/2006 requires further sustained interrogation and the recovery of data from this mobile phone will require the physical presence of this accused when he can be corroborated with retrieved data in order to make further progress in the investigation. (sic)”
* RA filed before the Mazgaon court on 22/8/2006 by inspector R R Joshi seeking the custody of Faisal Shaikh and his brother Muzammil Shaikh says: “Acc. No. 8 Muzammil happens to be a real brother of acc. No. 7. He has also been an active member of SIMI which is banned by Indian Government for its links with the terrorist organizations outside India. Acc. no. 8 used to give his Mobile Phone no. 9869190302 for contacting the other members of LeT outside India on behalf of acc. No. 7. (sic)”
* RA filed in the Mazgaon court on 25/9/2006 by inspector Vijay M Kadam seeking custody of seven suspects says: “Investigation done shows that accused have misused the mobile phones registered in the name of other persons and different address than their own to carry out the nefarious activities. The mobile phones seized from the accused have been sent to the Forensic Science Lab, Hyderabad for examining and extracting information in it. (sic)”
* RA filed in the Mazgaon court on 25/9/2006 by investigating officer B B Rathod seeking custody of the suspects says: “During the course of interrogation of accused no. 1 (Kamal Ansari), it has been disclosed that he had been to Pakistan where he underwent training in the handling of sophisticated arms and explosive devices. He has used his mobile phones and E-Mail addresses for communicating with these persons and passing on messages. The call records of his mobile phones are being analyzed similarly, records of his e-mail ID’s are being analyzed. (sic)”
* RA filed in the Special MCOCA court on 3/11/2006 by ACP Sadashiv L Patil seeking an extension of the judicial custody of accused numbers 1 to 7 says: “The CDRs of the mobile phones used by the accused and others are under scrutiny.”
* RA filed in the Special MCOCA court on 9/11/2006 by ACP Sadashiv L Patil seeking an extension of the judicial custody of all 13 suspects says: “The CDRs of the mobile phones used by the accused and others are under scrutiny.”
ATS chief Rakesh Maria said the agency had “not lost” the call data records. “We have stated that we do not have CDRs dating back to 2006. The CDRs were not a part of the chargesheet filed in the case at all, and therefore we were not in possession of them,” he said when reached for his comment.
On July 25 this year, in response to the summons issued to him for production of documents, Maria had informed the MCOCA court that he was not with the ATS in 2006, and the documents, if at all, would be with the case investigating officer. He had also told the court that he did not have any of the remand applications as they remain with the court after being filed.
However, defence lawyer Yug Chaudhary said his clients have a right to ask for the CDRs. “Although the prosecution has not relied on the call data records in their chargesheet...the Criminal Procedure Code has provisions under which the accused can ask the records to be produced,” he said. The judge has to ask for the document to be produced unless it is seen as a delaying tactic or an attempt to defeat the ends of justice. Chaudhary also said a document can be denied under the Evidence Act only if it is not relevant under sections of the act, is barred or inadmissible or covered by a privilege.