(As Defence Lawyer)
NEW DELHI, Sep 27, 2015: An army hawaldar, sentenced to 10 years in jail by a General Court Martial for allegedly handing over a CD containing classified data to a DRI agent in Kerala while serving in the controversial TSD unit, has moved the Armed Forces Tribunal over denial of a copy of the judgement.
Hawaldar Sham Das has sought quashing of the ‘certificate’ sent to his counsel by the Defence Ministry which said the “findings” of the General Court Martial (GCM) and its proceedings, necessary for challenging the order, cannot be provided as it would compromise national security.
Das was posted as a clerk with the Technical Services Division (TSD) and was arrested by the Military Intelligence when he was allegedly handing over a CD containing classified data.
TSD was a secret unit set up by the Army’s Directorate General of Military Intelligence (DGMI) in May 2010 which directly reported to the then Army Chief, General V K Singh. It was disbanded in August 2012 after he retired on March 30 that year. It was in news recently following media reports that several documents related to the unit were destroyed days before Singh retired.
After Das was sentenced to 10 years’ imprisonment on May 9 this year and sent to Tihar Jail, his counsel moved the GCM asking for a copy of the judgement to ascertain the grounds on which he had been sentenced so a review petition could be filed before the Armed Forces Tribunal (AFT). He was already under “close arrest” since April 2012.
However, the counsel was sent a ‘certificate’ in June this year by the Defence Ministry which said he could not be provided with the copy of the findings as it was against national security.
The counsel was, however, provided with an option of inspecting the files but not make copies. He was also told he would be prosecuted under Official Secrets Act if the information contained in the files got leaked.
In his petition to the AFT for quashing the certificate, Das has said in absence of the proceedings of the GCM his right to file an effective appeal or to take recourse to any other statutory remedy shall be “greatly prejudiced” and violate Article 21 (Right to Life) guaranteed by the Constitution.
Das said he had been provided with all documents during his Court of Inquiry and Summary of Evidence despite the fact that they were classified.
The petition said an application was made by the counsel of Das to Adjutant of Integrated Headquarter of Ministry of Defence Lt Col Triraj Subba in July this year with a request for a copy of the confirmation order and copy of the warrant for his committal to civil jail.
Ignoring all pleas made by Das through his counsel, the Hawaldar was sent to Tihar jail on August 3 this year “in a haste without any information to his counsel and without affording him any opportunity to approach this tribunal”, the petition said.
“The applicant was not provided copy of the GCM proceedings before confirmation of the sentence denying him an opportunity to make a representation to the confirming authority against the findings and sentence of GCM as well as the illegalities committed in the pre-trial Inquiry,” the petition, which has been listed for October 12, said.
It alleged the certificate issued by the Army was aimed at curtailing the rights of the applicant.
The certificate, which has been issued under Rule 147A of the Army Act, Das alleged, was an attempt to cover up the “misdeeds” of the Army.
Rule 147A says “if the Central Government certifies that it is against the interests of the security of the State or friendly relations with foreign States to supply a copy of the proceedings or any part thereof under the said rule, he shall not be furnished with such copy”.
“The applicant submits that army authorities are taking shelter of section 147A to cover their misdeeds and the illegalities committed by them in the court martial as well as during the pre-trial inquiry and investigation,” Das has said in his petition.
He alleged the decision of the army was “arbitrary, irrational and strike at the very foundation of the judicial system”.
Das also wondered how could he or his counsel give an undertaking that the material inspected by them is not leaked as after filing a document in the court it is always available for public scrutiny. (PTI)
Read more at: https://www.dailyexcelsior.com/tsd-clerk-moves-armed-forces-tribunal-over-denial-of-documents/
You may also read: https://www.thehindu.com/news/national/General-V.K.-Singh-operation-cover-up-The-TSD-documents-—-But-soldier-was-sent-to-prison-for-10-years/article60402648.ece