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Wednesday, March 03, 2021

Elgaar Parishad case: Accused have questioned authenticity of ‘evidence’ seized from electronic devices since 2019

The accused had alleged before the trial court that while there were computer experts accompanying the investigators at the time of seizures of these electronic devices, they did not note the hash value or provide them with it.

Written by Sadaf Modak | Mumbai |
Updated: February 12, 2021 7:50:09 am
Elgaar Parishad caseIn applications filed before a Pune court in 2019, the accused had claimed that the Pune police had not provided them with hash values of the devices seized from them and hence it has no evidentiary value. (Express File Photo)

The report of an American digital forensics company questioning the authenticity of the “incriminating evidence” that the Pune police claim to have found in Rona Wilson’s computer is not the first time that any of the accused in the Elgaar Parishad case have said that their computers and other electronic devices had been tampered by investigators to plant evidence.

In applications filed before a Pune court in 2019, the accused had claimed that the Pune police had not provided them with hash values of the devices seized from them and hence it has no evidentiary value.

A hash value is a numeric value which uniquely identifies data, a sort of fingerprint for files. The investigating agency would be required to provide the hash value at the time of a seizure of an electronic device to ensure that there is no tampering done to it subsequently. In case of any changes made to a device, its hash value changes.

The accused had said that they were not provided the hash values at the time of the seizure. Advocate Surendra Gadling, one of the accused, had argued before the Pune court during a hearing on his bail application in 2019 that the investigating officer had “conveniently deviated from the practice of taking hash value of a seized electronic record to fabricate evidence”.

Wilson’s petition also underlines this. “There was intrinsic evidence to show that the search and seizure was not in accordance with the law as the hash value of the device of the petitioner (accused Rona Wilson) was neither taken nor provided to the petitioner… leaving open the possibility of tampering and/or not ruling out tampering of the electronic devices,” it says.

Wilson has sought quashing of the FIR and chargesheet filed against him, citing the report of a US-based digital consultant which says that “incriminating evidence” found by investigators in his laptop were “planted”. The Ministry of Home Affairs has denied the claim, stating that there is nothing to suggest that any evidence was planted and digital devices were compromised.

The accused had alleged before the trial court that while there were computer experts accompanying the investigators at the time of seizures of these electronic devices, they did not note the hash value or provide them with it. The first mention of the hash values of these devices was in the chargesheets filed before the trial court in Pune.

Since a few months had passed since the seizures, however, the accused sought cloned copies of the devices under Section 207 of the Criminal Procedure Code, which requires an accused to be provided copies of all documents forwarded to the magistrate with the police report.

The prosecution then had opposed this, stating that there was a possibility of misuse of these copies and data. The court, however, granted them permission in 2019. The copies were made in the presence of accused and their lawyers with the help of forensic experts, with the process being videographed. The report annexed to Arsenal Consulting, the US-based digital consultant, is the analysis of the cloned copy of Wilson’s laptop.

The accused’s arguments regarding this claim, however, was not considered by the trial court then. “The arguments of accused about fabrication of evidence by prosecution has no sound basis. It is hardly possible for an investigating officer to manipulate the facts or forged the documents as noted above,” the court had said while rejecting the bail applications of Wilson, Gadling, Sudhir Dhawale, Shoma Sen, Mahesh Raut and Varavara Rao in November 2019.

Their subsequent bail applications were rejected by the Bombay High Court as well.

Currently, similar applications have been made before the special court in Mumbai where the case was transferred after the National Investigation Agency (NIA) took over the probe last year. The accused, including Rao, who is still to get copies of his devices, Anand Teltumbde and Father Stan Swamy, have similarly sought cloned copies of their seized devices. “We have sought mirror copies of the seized electronic devices as were submitted by the forensic science laboratories,” said Swamy’s lawyer, Sharif Shaikh.

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