The Bombay High Court Wednesday said the special NIA court should not have accepted photocopies of the statements of witnesses and confessions of accused in the 2008 Malegaon blast case as secondary evidence.
But, the NIA had not been asked by the special court to prove that the photocopies were copies of original documents that the probe agency claims have been lost forever, the court said.
"The question is, who took these copies? Have you (NIA) examined the person who took these photocopies? How do you know these copies are that of the original documents? The special court should not have accepted the copies as secondary evidence when their authenticity is not confirmed," it said.
In January 2017, the special NIA court had permitted the use of photocopies after the probe agency submitted that some files containing original statements of witnesses and confessions of accused under Criminal Procedure Code (CrPC) Section 164 had gone missing and could not be traced.
The NIA had pleaded that since these statements were not traceable and the proceedings of the case were conducted on a regular basis, the secondary copies of the original statements be taken on record.
The court had then permitted the use of such photocopies as secondary evidence.
One of the accused in the case, Sameer Kulkarni, however, filed an appeal in the Bombay High Court saying that the special court should not have permitted the use of photocopies since there was no evidence to prove that these documents were authentic copies of the original statements.
The bench is likely to conduct a detailed final hearing on the appeal from February 5.
Six people were killed and over 100 injured when an explosive device strapped on a motorcycle went off near a mosque in Malegaon, a town about 200 km from here in North Maharashtra, on September 29, 2008.
In October last year, the special court had framed charges under the Unlawful Activities Prevention Act against Sadhvi Pragya Singh Thakur, Lt Col Prasad Purohit and some other accused in the case.