A leaf from an earlier case

THE initial reaction of Reliance Industries Limited (RIL) to the “leakgate” scandal was that the information allegedly obtained by the accused on behalf of the company was of “no commercial consequence” to it and that it would order an internal probe into the alleged role of one of its staff members (Shailesh Saxena) in the information theft. Indeed, assessing the “commercial consequence” of the information, eagerly sought by the corporates, is not easy, and it requires serious effort on the part of the investigating agencies to unravel it. What appears to be innocuous information, on the face of it, plays a significant role in furthering the business prospects of a company, in order to gain an edge over its rivals.

In 1998, the Delhi Police recovered four apparently secret government documents from the possession of the then RIL Group president, V. Balasubramanian alias Balu, during a search of the company’s office premises in Delhi. Apart from Balasubramanian, RIL’s then vice-president, A.N. Sethuraman, and general manager, Shanker Adawal, were put on trial for offences under the Official Secrets Act. Unlike the ongoing investigation into leakgate, the Delhi Police handed over the 1998 case to the Central Bureau of Investigation (CBI) immediately in view of the sensitivity of the offences. (See Jiby Kattakayam, “Frame charges against Reliance, orders court”, The Hindu , April 4, 2012.)

The first document (D-7) was on the subject “Core Group on Economic Matters—Challenge of Economic Sanctions against India”. The second document (D-8) was a copy of a page of the first document, but was allegedly marked to some very important people within the RIL hierarchy. The third document (D-9) was on the subject “Minutes of the 37th meeting of the Core Group of Secretaries on Disinvestment” convened by the Cabinet Secretary on September 21, 1998, regarding disinvestment in public sector undertakings (PSUs). The fourth document (D-10) was a letter from the Secretary, Petroleum and Natural Gas Ministry, on proposals for “Rationalisation of Customs and Excise Tariff Rates for Hydrocarbon sector”, but the court of the Additional Sessions Judge, Delhi, Narinder Kumar, concluded then that this was not a “secret” document.

Paving the way for trial, Judge Narinder Kumar said: “From the material available on record, prima facie it can be said that accused No.4, Reliance Industries Limited, had vested interest in having the information contained in the three documents (D-7, D-8, and D-9) to know what was going on at the level of the government on the subjects to which they pertain, and to take appropriate steps for the benefit of the company, which is an association of persons and having a juristic personality in the eyes of the law”.

A handwriting expert opined that Adawal endorsed D-7 to Sethuraman and D-8 to the then Managing Director of RIL, Anil Ambani. The expert also felt that it was Sethuraman’s handwriting, marking D-7 to Balu after receiving it from Adawal. Thus Balu, Sethuraman and Adawal were indicted for receiving/communicating the secret document, which is an offence under the Official Secrets Act (OSA).

As the prosecution was silent on who communicated the document to RIL, it was left to the judge to interpret. Judge Narinder Kumar said: “There is nothing to suggest that any of these accused lodged any protest with each other, or with the person who communicated the same, as to why this official secret information contained in the document had been collected or communicated to each of them, and this attributes the requisite essentials of voluntariness, knowledge, and connivance to each of them.”

The judge continued: “It also appears that on receipt of entire D-7, Anil Ambani sent relevant portion thereof (D-8) to four officers concerned of the company. Anil Dhirubhai Ambani is not one of the accused before this court.” The charge order names the four officers to whom D-8 appeared to be sent as Mukesh Ambani, then the managing director and vice-chairman of RIL, accused No.1 (Balu), accused No.2 (Sethuraman) and one MM (abbreviation nowhere explained).

Judge Narinder Kumar said that R. Rajendran, Documentation Officer at RIL, had faxed D-9 to Mukesh Ambani and Anil Ambani. “However, there is no material to suggest that this document reached Mukesh and Anil Ambani on having been faxed by Rajendran. Prosecution appears to have not made any effort to investigate whether this document, on being faxed, actually reached the two managing directors. There is also no evidence as to what was written, said or done by these two managing directors, in case the document actually reached them, so as to attribute [to] them requisite voluntariness, knowledge and connivance. Therefore, in respect of D-9, prima facie case is certainly made out only against Accused No.1 (Balu).” The judge’s order is an indictment of the CBI, which was hesitant to probe the role of Anil and Mukesh Ambani. RIL soon challenged this order in the Delhi High Court, where it is currently pending, again because of the CBI’s lethargy in pursuing the case. During the third hearing of the case in the High Court on November 18, 2013, when the arguments were supposed to begin, the case was adjourned without the next date of hearing being fixed because the CBI’s counsel was not present in court.

It may be stretching the argument to suggest that the Delhi Police is perhaps reluctant to hand over the latest leakgate to the CBI, in view of the way the latter handled RIL’s attempts to frustrate the 1998 case. But one may be tempted to draw such an inference from the facts of these two cases. As the 1998 case slips from public memory, the CBI appears to be no longer keen on expediting the hearing of RIL’s appeal in the High Court, which would enable the trial of the three RIL officials to begin.

In this case, RIL and the three lobbyists were charged under Section 5(2), read with Section 15(1), of the OSA. The three lobbyists are also to face trial for criminal conspiracy in wrongfully receiving/communicating the secret documents.

Under Section 5(2), if any person voluntarily receives any secret official code or password or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe, at the time when he receives it, that it is communicated in contravention of the OSA, he shall be guilty of the offence.

Section 15(1) says that if the person committing an offence under this Act is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. A proviso to this section, however, adds that if the accused proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, he will not be liable to be punished.

V. Venkatesan