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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.