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PETITIONER:

R.K.KRISHNA KUMAR ETC. ETC., SAYEED KIDWAI, K. SRIDHAR

Vs.

RESPONDENT:

STATE OF ASSAM & ORS.

DATE OF JUDGMENT: 03/12/1997

BENCH:

M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:

THE 3RD DAY OF DECEMBER, 1997

Present:

Hon'ble Mr.Justice M.K.Mukherjee

Hon'ble Mr.Justice K.T.Thomas

Soli J.Sorabjee, Shanti Bhushan, Arun Jaitley, Sr. Advs.,

Mahesh Jethmalani, Arvind Kumar, Upamanyu Hazarika,

R.N.Karanjawala, Ms.Nandini Gore, Ms. Karanjawala, Advs.

with them for the appellants.

K.T.S.Tulsi, Sr.Adv., Sunil Jain, Vijay Hansaria, Vikas

Pawha, Advs. for M/s. Jain hansaria & Co., Advs. with him

for the Respondents.

J U D G M E N T

The following Judgment of the Court was delivered:

WITH

CRIMINAL APPEAL NO. 1158 OF 1997.

(Arising out of SLP (Crl.) No. 3500 of 1997)

WITH

CRIMINAL APPEAL NO. 1159 OF 1997

(Arising out of SLP (Crl.) No. 3502 of 1997)

WITH

CRIMINAL APPEAL NO. 1160 OF 1997

(Arising out of SLP (Crl.) No. 3508 of 1997)

J U D G M E N T

M.K. MUKHERJEE, J.

Leave granted in all these petitions Heard the learned

counsel for the parties.

2. On a First Information Report (F.I.R.) lodged by the

Superintendent of Police, Special Operation Unit (SOU),

Assam, a case under Sections 120 B, 121, 121A and 122 of the

Indian Penal Code and 10 and 13 of the Unlawful Activities

(Prevention) Act, 1967 (`Act' for short) was registered by

the SOU Police Station. The F.I.R. was based the State of

Assam regarding secessional activities of some militant

organisations including United Liberation Front of Assam

(ULFA). In connection with that case three ULFA activists

were arrested by the police at Mumbai Airport on August 23,

1997. It is alleged that their interrogation revealed that

their hotel bills and the medical bill of one of them,

namely Mrs. Pranati Deka, who was admitted in a hospital for

child birth, were borne by TATA Tea Company Ltd. (`Company'

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for short) under instructions from, amongst others, Shamsher

Singh Dogra, the General Manager of the Company. A few days

later, a report appeared in various newspaper circulating

throughout the country of a Press Conference held by the

Director General of Police, Assam to the effect that the

Company had not only paid the personal bills of top ULFA

militants but had also paid money, which ran to several

lakhs, to ULFA on various occasion. On perusal of the report

Shri R.K. Krishna Kumar, Shri S. Kidwai and Shri K. Sridhar,

the Managing Director, Executive Director and a Consultant

of the company respectively, (the three appellants before

us) apprehended that they might be arrested in connection

with the above case. They then filed separate applications

before the Bombay High Court under Section 438 of the Code

of Criminal Procedure praying that they might be directed to

be released for with in the event of their, arrest at the

instance of the Director General of Police of Assam in

connection with the above case, or any other case that may

be filed concerning the allegations of funding of ULFA

militants. Their prayer was allowed by the Bombay High

Court; and aggrieved thereby the State of Assam preferred

appeal in this Court after obtaining special leave. This

Court set aside the order of the Bombay High Court as it was

passed ex parte and transferred the anticipatory bail

applications filed by the appellants to the Gauhati High

Court for disposal by a Division Bench. This Court, however,

permitted the appellants to continue on the anticipatory

bail granted by the Bombay Court till November 7, 1997.

Pursuant to the said direction the applications for

anticipatory bail were heard on November 7, 1997 by a

Division Bench of the Gauhati High Court and the prayer of

the appellants was rejected. Hence these appeal at their

instance.

3. Briefly stated, the case of the appellants, as can be

culled out from the affidavits (and the annexures thereto)

filed before this Court, is as under:

(a) The Company owns 21 tea gardens in the State of Assam

and has 21,000 employees in its roll. The company have had

been the targets of extortion, killing and kidnapping by the

militant organisations, including ULFA. In the post several

attempts had been made to intimidate the employees of the

Company and make ransom demands on it. In the year 1993, Mr.

B Bordoloi, a Senior Executive of the Company stationed at

Gauhati, was captured by one of those militant organisations

and kept in detention for a period of eleven months. Though

the Company was pressurized by the public, and the family of

Mr. Bordoloi in particular, to pay the ransom demanded by

the militant organisation for securing his release it

refused to do so. Later on ULFA repeatedly made several

demands on the Company in the forms of a tax for each of the

tea estates owned by it, walkie talkie sets etc.. On each of

such occasions the Company brought the demands to the notice

of the appropriate authorities of the Central Government

either personally through their officers or by letters and

the Central Government had put the Company in touch with its

Intelligence Bureau.

(b) According to the Company it was the Central

Intelligence Agency which advised it to continue

negotiations with the militants but not to pay

ransom/protection money to them. Though the Company insisted

that it would not make any payment of unlawful money to the

militants it formulated several social and community welfare

schemes for the people of Assam. The Company assets that all

negotiation with militant organisations took place with the

knowledge and guidance of Central Government agencies.

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(c) While admitting that the Company negotiated with the

ULFA, that some of its officers met some leaders of that

organisation in Bangkok in connection with their demands,

and that it paid the hospital bill and hotel bills of their

members in Mumbai it has submitted that to protect the

larger interest of the employees of the Company and its tea

gardens, it was compelled to yield to some of the demands of

the organisations. The Company, however, categorically

denied to have paid any ransom to the ULFA or any other

militant organisation.

4. On the basis of the above facts and circumstances Mr.

Shanti Bhushan who appeared for the Company, contended that

it could not be said that any officer of the Company and

committed any offence, far less the offences alleged against

them.

5. Mr. Tulsi appearing for the respondent-State of Assam,

however, refuted the contentions of the Company and

submitted that investigation has revealed the involvement of

a number of officers of the Company, including the

appellants, in the illegal and unlawful activities of ULFA

and other militant organisations and, therefore, the

appellants should not be granted anticipatory bail. Mr.

Tulsi further submitted that denial of an opportunity to

have Investigating Agency to interrogate the appellants in

custody, confronting them with the information available

with the Investigating Agency, obtaining their version

pursuant to the leads gained through interrogation by

conducting raids and searches of the hide-outs of the

militants has put the Investigating Agency at serious

handicap in being able to discover the extent and manner of

the involvement of the employees of the Tata Tea Company in

`unlawful activities' within the meaning of the Act. To

bring home his contentions Mr. Tulsi handed over to us the

case diary prepared and maintained under Section 172 Cr.P.C.

6. On a careful perusal of the case diary we find that the

investigation has revealed that some of the officers of the

Company did meet top leaders of ULFA within and outside

India in which negotiations were held between them over the

various demands made by the latter and that the Company has

expressed its willingness to accede to some of those

demands. The investigation has further reveled that the

Company has funded the organisation and the appellants had a

role to play in it.

7. On the basis of the above materials collected during

investigation, it is now to be seen whether the appellants

have committed the offences for which they are sought to be

made liable. Coming first to the offences under the Indian

Penal Code Section 120 B related to criminal conspiracy to

commit any offence and Sections 121, 121 A and 122

specifically relate to offences against the State. While

Section 121 provides for punishment of those engaged in

waging war against the Government of India, the other two

Sections relate to conspiracy and preparation to commit such

offence by collecting arms etc., respectively.

8. To ascertain the nature of offence envisaged under

Sections 10 and 13 of the Act, it wold be necessary to first

refer to the definition of `unlawful activity' in Section 2

(f) of the Act which reads as under:

"`Unlawful activity', in relation

to an individual or association,

means any action taken by such

individual or association (whether

by committing an act or by words,

either spoken or written, or by

signs or by visible representation

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or otherwise), -

(i) Which is intended, or supports

any claim, to bring about, or any

ground whatsoever, the cession of a

part of the territory of India or

the secession of a part of the

territory of India from the Union,

or which incites any individual or

group of individuals to bring about

such cession or secession;

(ii) which disclaims, questions,

disrupts or is intended to disrupt

the sovereignty and territorial

integrity of India;"

'Unlawful association' has been defined in Section 2(g)

to mean any association :

"(i) which has for its object any

unlawful activity, or which

encourages or aids, persons to

undertake any unlawful activity, or

of which the members undertake such

activity; or of which the members

undertake such activity; or

(ii) which has for its object any

activity which is punishable under

Section 153-A of Section 153-B of

the Indian Penal Code, 1860 (45 of

1860), or which encourages or aids

persons to undertake any such

activity, or of which the members

undertake any such activity:

Provided that nothing contained in

sub-clause (ii) shall apply to the

State of Jammu & Kashmir."

9. Section 10 provides that whoever is and continues to be

a member of an association declared unlawful by a

notification issued under Section 3 which has become

effective under sub-section (3) of that Section, or takes

part in meetings of any such unlawful association, or

contributes to, or receives or solicits any contribution for

the purpose of any such unlawful association or in any way

assists the operation of any such unlawful association shall

be punishable with imprisonment for a term may extend to two

years and shall also be liable to fine.

10. Section 13 speaks of punishment for `unlawful

activities' and it reads as follows: material allegations

levelled against the appellants are considered vis-a-vis the

`unlawful activities' envisaged under the Act it cannot be

said that they are liable for an offence under Section 13 of

the Act, much less under the aforesaid offences under the

Indian Penal Code. Resultantly, the question of granting

anticipatory bail to the appellants under Section 438 of the

Code of Criminal Procedure cannot and does not arise for an

offence under Section 10 of the Act is bailable; and a

direction under the former can be issued only in respect of

a non-bailable offence. Viewed in that context the merits of

the appellants' contention that they have not committed any

offence alleged against them need not be gone into.

10. With the above observations we dispose of these

appeals.