A Delhi court on Saturday denied bail to Alt-News co-founder Mohammed Zubair and remanded the journalist to 14 days in judicial custody, noting the probe was at “the initial stage”, considering the “overall facts and circumstances of the case” and given the “nature and gravity of offences”.
Chief Metropolitan Magistrate Snigdha Sarvaria of the Patiala House court here pronounced the order around 7 p.m., almost five hours after the Special Cell (IFSO) DCP K.P.S. Malhotra told the media in a “broadcast” message that Mr. Zubair’s bail had been rejected and that he had been remanded to 14 days in judicial custody.
The statement from the police had prompted Mr. Zubair’s counsel, Advocate Soutik Banerjee, to lash out at the police: “It is extremely scandalous and it speaks of the status of rule of law in our country today… How KPS Malhotra knows what the order is, is beyond me and this calls for serious introspection.”
Soon after Mr. Banerjee’s statement, Mr. Malhotra said he had “misheard the IO” and “inadvertently” sent the message to members of the press.
Mr. Zubair moved a bail application in the case after the Delhi Police produced him in court on Saturday upon the expiry of their police custody. Senior Public Prosecutor Atul Srivastava, for the police, submitted they do not need his custody for the time being and hence sought 14 days judicial custody, saying they may need his police remand at a later stage.
In their application, the police said they were now adding Section 201 (evidence destruction) of IPC because he had “deleted items” from his phone; 120B of the IPC (criminal conspiracy); and Section 35 of the FCRA because they had discovered alleged transactions from foreign countries. This came a day after the police seized a laptop and a hard disk drive from Mr. Zubair’s Bengaluru home.
Significantly, Advocate Vrinda Grover, appearing for Mr. Zubair, sought to put on record their “grave apprehension” that the devices may be tampered with by the police.
She submitted before the court that the Delhi Police Special Cell had travelled all the way to Bengaluru to seize his devices but did not take a technician with them, who could generate the hash value for the device.
“It is standard practice while seizing devices to generate this value so it can be known if there has been any tampering. Moreover, they have in the seizure memo also said that they have not sealed the seized devices as they need to analyse it. We are not disputing that analysis needed but sanctity and integrity of data has to be preserved,” Ms. Grover submitted.
SPP Srivastava opposed this, asking, “Why the apprehension? We have put on record that we are not sealing it because we need to analyse it. What is wrong with it?”
Rebutting this, Ms. Grover said, “I am putting on record a constitutional and legal objection to being asked such a question. I am saying you are abusing your power. Don’t ask me why am I apprehensive. I am asking why you are indulging in illegalities.”
Ms. Grover submitted, “There cannot be a more brazen case of mala fide. They have no prima facie case. Entire proceedings from this are illegal. It is malicious prosecution and they know it.”
In her order, Chief Metropolitan Magistrate (CMM) Sarvaria said, “The issue of sealing of electronic devices cannot be decided at this stage since the investigation qua the data and the electronic devices seized during execution of search warrants are still being looked into.” The court once again dismissed the argument that charges under 153A and 295A of the IPC were not made out as the tweet had an image from a CBFC-approved, widely available film - this time noting the argument did not assist the accused because the FCRA section had now been added.
Pravda Media Foundation
Countering the FCRA section, Ms. Grover had submitted that the police had regrettably leaked information about this to the media before making these submissions in court - once saying the money was received by Mr. Zubair and then saying it was received by Pravda Media Foundation, Alt-News’ parent company. She added, “Facts are being muddied up. This is why we need fact-checkers.”
Ms. Grover submitted, “The money has gone to a Section 8 company. A company taking funds is not FCRA violations. How Pravda and I (Mr. Zubair) have been merged, they have to explain.”
SPP Srivastava said funds came in “through RazorPay from Pakistan, Syria, Australia, Singapore, UAE and several other Gulf countries” and that these transactions needed to be investigated and that it came under the purview of their probe because Mr. Zubair was a director in the company.
On the criminal conspiracy section, Ms. Grover asked how the police could allege Mr. Zubair conspired with himself as he was the only accused in the case.
As for deletions from his phone, Ms. Grover submitted that the phone in question was not the one from which the tweet was made. “It is private property. I can do whatever I want with it. I was not told this phone is required for the case and neither was I asked to bring any phone to the questioning. 201 is for evidence. This is not evidence. This is not a police state.”
Moreover, Ms. Grover submitted that the phone that the police were looking for had been stolen in Bengaluru in March 2021 - a fact argued by her at the last remand hearing as well. In her order, the CMM said, “Nothing was found on record to show that any mobile phone of the accused was lost, although said plea has been taken now in the present application.”
The lost report for the phone was made on March 20, 2021. The Delhi Police had in a May, 2022 status report in a separate case, also acknowledged the phone being stolen. Both these documents were filed with written submissions before the CMM on Tuesday as well, Mr. Zubair’s lawyers said. These submissions were not recorded by the court in its three-page order of June 28 granting four days’ police custody.
The June 28 order has been challenged in the Delhi High Court, which has issued notice on it and will hear it next in four weeks.
