Books not ground for arrest, weren’t banned, says Mihir Desai

MUMBAI: Mihir Desai, counsel for arrested activist in the Pune Elgar Parishad case Vernon Gonsalves, asked by the Bombay high court on Wednesday to explain the recovery of various books from his house by the Pune police, submitted. “I have three problems with this panchanama.” He said it was never the prosecution case that it was because of the books recovered that Gonsalves had been arrested a year ago.He relied on the affidavit filed by the state government in the HC, the Supreme Court and sessions court to back his submission.
But before arguments began on Thursday in Gonsalves’ bail plea, advocate Yug Chaudhary, for a co-accused Sudha Bharadwaj submitted that the bench of Justice Sarang Kotwal had on Wednesday “at no time mentioned Leo Tolstoy” in reference to ‘War and Peace’. Attributed by a section of media as having asked Gonsalves to explain being in possession of the classic, Justice Kotwal on Thursday said he found Wednesday’s reporting “disturbing for the institution.”

“You had asked what was seized from the house of Vernon Gonsalves. A panchanama was shown. On Page 10, War and Peace in Jungle Mahal was mentioned,” said Chaudhary to the Judge. The panchanama is a statement signed by independent witnesses at time of arrest, search and seizure.
Desai and additional public prosecutor Aruna Pai supported what Chaudhary submitted. Gonsalves and co-accused Arun Ferriera, the Pune police have alleged, were members of a “radical study group” and were engaged in recruiting cadres for banned terror organization CPI (Maoist).
Desai said, “None of these books are banned under Section 95 of Criminal Procedure Code.” The section empowers the state to forfeit any seditious or inflammatory book or document. He added the searches were carried out a year ago and if the books were found so inflammatory, at least subsequently the state could have banned them, but hadn’t. The search was on August 28, 2018. Besides, said Desai, about half these books “are available freely” on an online portal.
The counsel cited several SC judgments on two issues. One was to submit that being a “mere member of banned organisation is not enough” to secure custody. He has to be an active member and to have actually instigated violence, he argued. The other judgment he cited was the constitutional bench verdict on privacy to argue on sanctity of “freedom of thought and conscience” and submit that what a person reads in his own house is something the state should never interfere with.