Activist Rona Wilson, arrested in the Elgar Parishad case, urged the Bombay High Court Wednesday that an expert should be asked to probe if any malware had been planted and installed on his computer before it was seized by the Pune Police in 2018.
In his plea in the case, Wilson cited a report of US-based digital consultant ‘Arsenal Consulting’ that stated the “incriminating evidence” found by investigators in his laptop were allegedly “planted” through an email on June 13, 2016, two years prior to his arrest on June 6, 2018.
The court is also hearing a plea by co-accused Shoma Sen challenging her prosecution under the Unlawful Activities Prevention Act (UAPA) filed on similar grounds.
Wilson questioned the authenticity of the electronic evidence cited by NIA which was allegedly recovered from electronic devices of the accused in the case and sought a probe into “tampering of evidence”.
His counsel and senior advocate Indira Jaising, calling it a ‘sui generis’ (unique) case, had sought from court to decide what was “legal electronic evidence” and state the evidence relied upon by the probing agency was illegal as per law as it had been “planted”.
Jaising told a division bench of Justice S S Shinde and Justice N J Jamadar that tampering with electronic devices was an offence under the Information Technology Act and said that crimes under the said law have been committed against Wilson. “Therefore, an expert should be appointed to ascertain if Wilson’s computer had malware when it was seized by the probing agency. The expert can tell how the malware was planted,” she said.
However, Additional Solicitor General Anil Singh representing NIA submitted that the Arsenal Consultancy report referred to by the petitioner came from an organisation called American Bar Association, which is not a statutory body and does not have any standing in India.
NIA, which took over the case from Pune Police in January 2020, said the report of the US-based consultancy as referred to by the petitioner, was not a part of the chargesheet filed against the accused and therefore, it can only be raised during trial and cannot be relied upon by the petitioners while submitting a petition before the high court.
“What is the reliability of such a report? Much water has flown in this case, a number of bail applications and other proceedings have been filed. There is no prima facie case. Now it is at the stage of framing charges. Now they are saying stay the trial. Why? If you are right and something is planted in your device and if what NIA has said is not credible then it can be settled at the stage of trial,” Singh said and sought the plea to be dismissed calling it “non-maintainable”.
The HC will hear the pleas again on August 27.