Antrix-Devas Agreement, national security and CBI

Lalit Shastri

antrix-devas newsThe CBI has taken a long time in completing the entire round of investigations into the Antrix-Devas scam and has registered a case against the accused only under Section 120-B, besides Section 420 of IPC and Section 13(2) read with 13(1)(d) of PC Act, 1988.

Section 120-B of the I.P.C. prescribes punishment for criminal conspiracy. It is not necessary that each conspirator must know all the details of the scheme nor be a participant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements:

(1)   agreement

(2)   between two or more persons by whom the agreement is effected; and

(3)   a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished.

Question arises why Sections 34, 120 and 120-A, and 149 of IPC have been left out by the CBI while registeringa case against the accused.

Halsbury’s Laws of England  describes Criminal Conspiracy as follows: “Conspiracy consists in the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is an inevitable offence of common law, the punishment for which is imprisonment or fine or both at the discretion of the Court.

Section 34 of IPC also applies in this case as the ANTRIX-Devas Agreement was an act done by several persons in furtherance of common intention . Under this Section, When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons, is liable for that act in the same manner as if it were done by him alone. The section is framed to meet a case in which it may be difficult to distinguish between the act of individual members of a party or to prove exactly what part was played by each of them. The reason why all are deemed guilty in such cases is, that the presence of accomplices gives encouragement, support and protection to the person actually committing the act.

Section 120 is for concealing design to commit offence punishable with impris­onment.—Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an of­fence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the exist­ence of a design to commit such offence, or makes any representa­tion which he knows to be false respecting such design, If offence be committed—if offence be not committed.—shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.

According to Section 120-A of the Indian Penal Code, 1860, “when two or more persons agree to do, or cause to be done: 1) An illegal act, or 2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Even Section 149 of IPC should have been applied by the CBI in this case. This particular Section says: If an offence is committed by any member of unlawful assembly in prosecution of common object of that assembly, or such as the members of that assembly knew to be likely to committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
ANTRIX-Devas Agreement and National Security
Even though the conspiracy leading to the agreement betwen Antrixc and Devas was jeopardising and threatening national security, CBI has booked the accused only under Section 120-B which prescribes punishment for criminal conspiracy, besides 420 and relevant sections of the Prevention of Corruption Act.
The then Additional Solicitor-General Mohan Parasaran had given his views on annulment of the agreement of January 28, 2005 between Antrix and Devas Multi Media Private Limited. In his reply to a query by the Department of Stace, he stated:
“Antrix Corporation Limited is a Public Sector Undertaking and is an arm of the Department of Space, Government of India. It entered into a commercial contract, after nearly two years of negotiation, on January 28, 2005 with M/s. Devas Multi Media Private Limited (hereinafter referred to as ‘DEVAS’), for lifetime lease of 90 per cent capacity of S Band Transponder of 2 satellites, built by the Indian Space Research Organisation (ISRO) [GSAT – 6 and 6A]. However, after the signing of the said agreement, it has been realised by the Government of India that the Antrix–Devas lease agreement on GSAT-6 and 6A would take away most of the total S band spectrum available. The S band spectrum is crucial for several strategic and societal services. The Integrated Space Cell of IDS, Ministry of Defence has projected a need for 17.5 MHz in S band for meeting the immediate requirements of Armed Forces, another 40 MHz during the Twelfth Plan period and an additional 50 MHz during the Thirteenth Plan period. Armed Forces have also projected the need to build S band satellite capacity through GSAT-7S, for national security related mobile communications. There are further demands for S band transponders from international security agencies viz., BSF, CISF, CRPF, Coast Guard and Police for meeting their secured communication needs. Indian Railways have also projected S band requirements for train tracking.
In view of these emerging requirements, there is an imminent need to preserve the S band spectrum for vital strategic and societal applications. Besides this, there were also certain concerns on the technical, commercial, managerial and financial aspects of Antix-Devas contract, such as severe penalty clauses for delayed delivery of the spacecraft and for performance failure/service interruptions, violation of ICC guideline of ‘ non-exclusiveness’ in leasing the capacity, the contract enabling Devas to sub-lease the capacity without any approvals which could even given rise to security concerns etc.
It is evident that the two satellites together, if launched, would require about 70 MHZ of the S band spectrum of 150 MHz allocated to ISRO for satellite in the orbit. This will result in serious consequences strategically affecting the needs of the Defence and other departments concerned with national security, including para-military departments, Indian Railways etc.”
CBI statement after registering a case

 

The CBI press statement of March 18, 2015, after the case was registered against the accused in the ANTRIX – Devas scam, is as follows:

The Central Bureau of Investigation has registered a case U/s 120-B, 420 of IPC and Section 13(2) r/w 13(1)(d) of PC Act, 1988 against the then Executive Director, Antrix Corporation Limited, Bengaluru; two officials of USA-based company; Bengaluru based private multi media company and other unknown officials of Antrix Corporation Limited /ISRO/Department of Space. It is alleged that then Executive Director of Antrix Corporation Ltd in conspiracy with other unknown officials of Antrix Corporation Limited /ISRO/Department of Space and Bengaluru based company had cheated the Government of India & caused favours to said company. The accused public servants had allegedly given the rights to an ineligible company of Bengaluru for delivery of video, multimedia and information services to mobile receivers in vehicle and mobile phones via S-Band through GSAT-6 and GSAT-6A satellites and terrestrial systems in India. An alleged loss of Rs.578 crores (approx) was caused

It is further alleged that an agreement between Antrix Corporation Limited and Bengaluru based private company was signed on January 28, 2005 for the lease of 10 S-band Transponders for the said services. On behalf of Antrix Corporation Limited, the then ED signed the said agreement. After the agreement, the two Advisors of said USA based company were appointed as Directors of Bengaluru based company. There was also change in the Board of Directors of Bengaluru based company and both the Advisors, through USA based company, took over the charge & control of Bengaluru based company which was against the spirit of Shankara Committee that recommended for agreement to be executed with an Indian company. This change was never checked and verified by officials of Antrix Corporation Limited. Further, when a proposal seeking budgetary support of Rs. 269 crores (approx) for approving design, manufacture and launch of GSAT-6/ INSAT-4E (PS1) was placed in the 104th meeting of the Space Commission on May 26, 2005, it was not informed that the agreement had already taken place with Bengaluru based company for leasing out the S-Band.

It is also alleged that a note for the Cabinet was submitted for building the GSAT 6 satellite as earlier approved by the Space Commission. Information regarding the agreement between Antrix Corporation Limited and Bengaluru based company was suppressed from the Cabinet and the wrong information regarding utilization of satellite capacity was given to the Cabinet with respect to multiple expressions of interest, though the agreement was signed with Bengaluru based company without any multiple expressions of interest. The proposal was approved by the Cabinet in December 2005. After coming to know the omissions and commissions on the part of the accused persons, the agreement dated 28.01.2005 was annulled by Antrix Corporation Limited in accordance with the decision dated 17.02.2011 of Cabinet Committee on Security (CCS).

It is also alleged that Bengaluru based company had submitted false, wrong and incorrect information claiming that it had the technology and was fully capable of delivering the S-DMB services to get the rights of delivering same in India through PS1 and PS2 and consequently, Bengaluru based company allegedly got wrongful gain of more than Rs.578 crores(approx) from various investors from USA, Mauritius, Singapore etc. The two Advisors were allegedly beneficiaries of above said transactions, besides others. The Bengaluru based private company with the intent to siphon off the amount from its bank accounts in India, got a subsidiary in another name incorporated in USA and a substantial part of wrongful gain was remitted to this new company of USA on the pretext of services, salaries, etc. The illegal gratification was allegedly paid to the accused public servants.

Searches are being conducted at certain places in Bengaluru.

antrix-devas-news-lalit-shastri← CLICK thumbnail for independent inquiry conducted by me as a journalist and the revelations Published on February 6, 2012