Proceedings before the Chief Judicial Magistrate, Bhopal
on June 27-28, 2000 in Criminal Case No. RT- 8460/96
State versus Keshub Mahindra and other accused
Bhopal Gas Peedit Mahila Udyog Sangathan, Bhopal, Bhopal Gas Peedit Sangharsh Sahayog Samiti, New Delhi and Bhopal Group for Information and Action, Bhopal [Assisting the Prosecution]
Chief Judicial Magistrate: Mr. L. D. Borasi
Counsels for the prosecution: Mr. C. Sahay [Special Public Prosecutor]
Mr. R. B. Sharma [Public Prosecutor]
Counsel for the accused : Mr. Rajendra Singh, Mr. Dhakephalkar Prasad, Mr. Ajay Gupta, Ms. Neera Tiwari
Deposition of prosecution witness no. 71 Mr. S S Gupta (66) s/o Late J. S Gupta resident of 290, SFS, Hauz Khas, New Delhi 110 016 former Under Secretary in Ministry of Chemicals and Fertilizers, presently working as Officer on Special Duty with the Welfare Commissioner, Bhopal Gas Victims, Bhopal and posted at New Delhi.
I joined government service in October 1956 in the Ministry of Industries as an Assistant. Around 1960 the Ministry of Production was reorganized along with other departments and the Ministry of Chemicals and Fertilizers was created. I worked in the Ministry of Chemicals and Fertilizers till February 1993 when I retired as Under Secretary. I took the job of OSD under Welfare Commissioner, Bhopal Gas Victims on March 1, 1993.
In August '85 as Desk officer in the Ministry of Chemicals and Fertilizers I handed over the following files to the CBI :
The file containing letter dated July 12, 1982 and other papers, presented before the court was brought to the Ministry of Chemicals and Fertilizers in 1998 from the Directorate General of Technical Development (DGTD) and was handed over by me to the CBI.
I have also personally dealt with the two other files related to Union Carbide India Limited presented in court by the CBI.
Cross examination by Mr. Rajendra Singh:
Rajendra Singh (RS) : Have you personally signed any of the papers presented by the CBI in court?
S. S, Gupta (SSG) : No I have not personally signed these papers.
RS : Have you personally received any of the letters in the correspondence files.
SSG : No I have not personally received these letters.
Continuing with deposition and cross-examination of prosecution's witness Mr. S. Kumarswamy (62) years, s/o K S Subramaniam , D - 4098, Vasant Kunj, New Delhi. Retired from Eveready Industries India Limited / UCIL as Resident General Manager in 1995. Currently with PRAXAIR, [an alter image of Union Carbide Corporation, New Delhi]
The CBI filed the following application on May 5, 2000:
In the Court of the Chief Judicial Magistrate Case RT 8460 / 96
State vs. Keshub Mahindra and others
Most respectfully this humble petition under section 294 CrPC.
In order to expedite the trial, the accused persons may be asked to admit/deny the genuineness of documents, the details of which are as under :
[The CBI listed 89 documents including a few that were entire files but listed as documents. Of these the genuineness of documents was denied for 14 documents. Details of documents denied by the accused to be genuine are as follows:
Document No.5: UCIL file on Foreign Collaboration
Document No.16: UCIL letter dated 6/11/1982
Document No.18: Telex
Document No.20: Letter
Document No.38: Letter dated 20/7/'81 from W R Correa to UCC, New York
Document No.42: Memo containing note on foreign collaboration
Document No.74: UCIL file on industrial license 2 volumes
Document No.82: Comparative chart from 1981 to 1984 showing losses made by UCIL through manufacture of MIC based pesticides
Document No.83: Letter from UCE, HK to K S Kamdar
Document No 84: Telex message from Natrajan UCE to Mr. Nelson UCCP,USA.
Document No.85: Letter dated 29/11/'84 from K S Kamdar to R Natrajan UCE,HK.
Document No.86: Document related to leakage of MIC gas resulting in death of Md. Ashraf
Document No.87: Operational safety survey report of MIC and sevin Units of UCIL, Bhopal in May 1982
Document No.89: Information about the status of office bearers of UCIL
The CBI counsels took more than two hours to complete their paperwork and the hunt for papers/potential exhibits was happening right before the court. While Mr. Sharma busied himself in identifying specific documents Mr. Sahay engaged himself in a "friendly discussion" over the non-appearance of several accused [except for Mr Shetty and Mr Shakeel Quereshi none of the accused have ever been personally present during the hearings]. Mr. D.Prasad counsel for the accused stated that presence in court during proceedings was a matter of right of the accused. If the accused did not have any objection to proceedings in court to continue in their absence, they need not be present. The Criminal Procedure Code [CrPC] was consulted, Section 317 of CrPC states that if the judge is satisfied [and the grounds for satisfaction shall be recorded] that the personal appearance of the accused is not required, she/he may permit the accused to abstain from proceedings. Through this Mr. Sahay was able to convince Mr. Prasad that abstaining from court proceedings was not a matter of right of the accused. All agreed, including Mr. Borasi, that it was up to the judge to exercise his/her discretion in this matter.
Mr. Rajendra Singh cited a case in the Supreme Court of India in which the accused who had no objection to statements being recorded in his absence was allowed to abstain from proceedings.
He mentioned that the accused in this case [except Mr Shetty and Mr. Qureshi] have been granted permission to abstain from court proceedings by the High Court. He described accused Keshub Mahindra and others as highly respected public persons. He advised Mr. Sahay to seek a revision against the order of the High Court to ensure the appearance of Keshub Mahindra and others in the ongoing proceedings.
Deposition of Mr. S. Kumarswamy began with Mr. Sahay directing him to examine the veracity of the documents that the accused had accepted as genuine. Mr. Kumarswamy accepted to verify only those documents that he had signed or received himself. These included letters dated December 2, 1983 and others regarding renewal of license by the Ministry of Chemicals and Fertilizers, application dated December 12, 1982 for renewal of permission for foreign collaboration and an undertaking to the Ministry regarding grant of license for industrial production. He also recognized and testified the signature of Mr. V P Arya who was a director in UCIL and had signed on the "design transfer agreement between UCC and UCIL."
Cross examination by Mr. Rajendra Singh :
Rajendra Singh (RS): Many letters were exchanged for grant of permission for foreign collaboration, did the government in any of its letters ask you what was the treatment for MIC exposure and what were the ways of preventing injury from exposure ?
S. Kumarswamy (SK): No, never.
RS: Before granting license for production, many letters were exchanged, did the government ask what was to be done in case of an explosion or did it lay down any condition that the company has to provide information on prevention and treatment before it was granted license for production ?
RS : You are one of the oldest officers of UCIL, for the Bhopal plant all central government approvals were obtained by you, right?
RS: When the factory was being set up, there was no one living in the neighbourhood, right?
SK: Yes that is right.
RS: People settled in the neighbourhood after the factory was built, right?
RS: When the factory was built in the seventies it was thoroughly supervised by technical experts from Union Carbide Corporation, USA, right?
RS: [referring to a document whose genuineness had been denied by the accused earlier] From 1971 to 1984 there were seven American directors and eight directors from Hong Kong, right?
SK: [after consulting the document offered to him by RS] Yes.
RS: Keshub Mahindra was never an employee of UCC or UCIL, was he?
SK: Yes he was never an employee.
RS: Mr. Keshub Mahindra was made the Chairman of the Board of Directors on account of his high status in Indian Industry.
SK: Yes that is true.
RS: He was a non-executive chairman, right?
RS: He did not attend to the day to day working of UCIL, right?
SK: To the best of my knowledge, that is right.
RS: When did he become the chairman?
SK: I do not remember.
RS: Before making him the chairman, Keshub Mahindra was invited to sit in the Board for advice on policy matters, right?
RS: Mr. Keshub Mahindra had nothing to do with the day to day working of the Bhopal plant, right?
SK: Yes that is correct.
RS: Among the correspondence regarding granting of industrial license there were letters that were referred to Mrs. Indira Gandhi, the then Prime Minster, right?
SK: I have no knowledge of this.
RS: When did Mr. Vijay Gokhale become the Managing Director of UCIL?
SK: I can not answer that question without consulting records.
RS: How many facilities did UCIL have in India?
RS: Mr. Gokhale's job was to supervise over all policy matters with regard to all these facilities, right?
RS: Mr. Gokhale had nothing to do with the day to day running of the
Bhopal factory, right?
SK: Yes that is right.
RS : Mr. Gokhale's office was in Bombay, right?
RS: He used to supervise all the thirteen facilities in India from Bombay, right?
RS: Between 1980 and 1984, you visited the factory in Bhopal several times, right?
SK: Yes two or three times.
RS: During these visits you met with the officers in the factory,
RS: At no time did the officials express any fear that there may be an explosion or any danger in the factory, right?
SK: Yes that is right.
RS: Do you have any knowledge of a proposal by UCC to set up factories like that in Bhopal in Indonesia and Brazil?
SK: No I have no knowledge of this.
RS: While setting up the factory in Bhopal many things were imported after receiving permission from the government of India, right?
RS: These included plant machinery, pipe line fittings and these were supplied by UCC in USA, right?
SK: Yes majority of the machinery and equipment were supplied by UCC, USA.
RS: In 1984 if you had to export something you had to seek permission from the government of India, right?
SK: Yes, that is right.
RS: If any such application were made it would have gone through your office, right?
SK: Yes that is right.
RS: There was no proposal to close down the Bhopal plant, was there?
SK: No not to my knowledge.
RS: The demand for Sevin insecticide was for cotton crop, right?
SK: Yes, that is right.
RS: The demand for Sevin used to be most from January to April?
SK: I have no personal knowledge of this.
Mr. C. Sahay (CS) sought a re-examination of the witness and ws granted permission.
CS Could you state how many directors of UCIL were foreigners from memory?
SK: No from memory I could not have said.
CS: Did you have information regarding where Mr. Keshub Mahindra or Mr. Vijay Gokhale went during the course of their work?
SK: No I did not have that kind of information.
CS: As per exhibit 1401 on page 23 para 5 the government had laid down conditions regarding pollution caused by the factory, isn't it?
The question was disallowed by the judge.
The prosecution informed the judge that witness Mr. V.R.Ramachandran, former Instrument Engineer in UCIL, Bhopal was to depose during the current hearing. Mr. Rajendra Singh pointed out that Mr. Ramachandran had not received the summon issued in his name. Mr. Sahay contested that summons sent in his name had not been returned so he must have received it. The matter was not resolved and the hearing scheduled for 29th was cancelled on this account.
Next dates of hearing: August 2-3, 2000
Note: Transcript of the hearings are based on notes taken in the court room and is not verbatim.