The electronic evidence recovered from activists Shoma Sen and Rona Wilson in the Bhima Koregaon investigation was improperly secured upon seizure, advocate Anand Grover alleged before the Bombay High Court yesterday, The Leaflet reported.
Charged under the Unlawful Activities (Prevention) Act, the two activists have remained incarcerated since June 2018 for their alleged links with the case. The High Court will hear the case, requesting quashing of the chargesheets filed against the activists, next on October 23rd.
Records not secured, cannot rule out possibilities of evidence tampering: Section 3 of the Information Technology (Security Procedure) Rules, 2004 observes that electronic records will be deemed secure if authenticated by a secure digital signature. Additionally, to authenticate the device, agencies are required to calculate its hash value upon seizing it, The Leaflet reported.
Grover argued that the Pune Police had failed to do so. Additionally, the possibility of the documents on the seized devices being tampered with still existed, as the Pune Police instead sent the devices to Pune’s Forensic Science Laboratory to determine the hash value
Grover also pointed out that simply sealing the devices upon seizure need not imply that the data within them has been secured. For example, electronic evidence can be tampered without indication because of its “volatile” nature. Notably, the Pune Forensic Lab’s report also did not answer the question of whether Wilson’s seized devices were tampered with, Grover added.
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Why it matters: The Bhima Koregaon case is shrouded with allegations of severe malpractice. In 2021, Arsenal Consulting claimed that traces of the NSO Group’s Pegasus spyware were found on Wilson’s phone, while he’d also received phishing emails from a “threat actor” from 2013 to 2014. Cybersecurity firm SentinelOne added that other hacking groups were used to target Wilson. Last year, Amnesty International claimed that they found evidence that the Pune Police had hacked the emails of various arrested activists—including Wilson.
Notwithstanding these case-specific concerns, the current arguments before the Bombay High Court also assume significance in light of heightened concerns over the search and seizure of digital evidence in India. Multiple pending petitions at the Supreme Court have argued that the wide search and seizure powers granted to investigating authorities violate the rights to privacy and self-incrimination of the accused. A newly-floated bill to replace the Code of Criminal Procedure further explicitly allows police officers to summon digital evidence, including messages, call recordings, as well as devices. Notably, it also allows police officers to search for a thing without written orders, if they have reasonable grounds to believe that it can’t be procured otherwise without undue delay.
Documents recovered amount to “digital hearsay”: Grover pointed out that Section 88 of the Indian Evidence Act, 1876, prohibits presuming the originator of a message (or digital evidence, here). In this case, the ten documents recovered from Wilson’s devices lacked “probative value”, as they were neither attachments nor signed, Grover argued. Additionally, neither Sen nor Wilson had written or transmitted the documents recovered.
Requests for cloned devices still pending: Wilson and Sen repeatedly requested the National Investigation Agency for cloned copies of their devices from June 2018. They did so under Section 207 of the Code of Criminal Procedure, which deals with providing the accused in an investigation with copies of the police’s report and other documents. Grover claimed that the matter is pending with a special court convened under 2008’s National Investigation Agency Act.
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