The Special Report

23rd April 2000

Judge in the dock

Japanese rise up against Eppawala mining

Judge in the dock

There are allegations that the judge allowed evidence to be tampered with
and that a Home Ministry bureaucrat was aware of the impending armsdrop

By Avirook Sen

"It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to false statements and fabricating false evidence in a court of law." -Chief Justice of India A.S. Anand, Dhananjay Sharma Vs the State of Haryana, 1995.

On the quiet afternoon of March 6, a division bench of the Calcutta High Court admitted a set of petitions that alleged that "the fountain of justice" had indeed been "poisoned". And one of the accused in this case is a judge. Sessions Judge P.K. Biswas, who sentenced Peter Bleach and five Latvians held in the Purulia arms drop case to life imprisonment, now finds himself in the dock. Legal activist Deepak Prahladka, the petitioner, has alleged that the judge made false statements in his verdict, did not follow mandatory legal procedure and interfered in the administration of justice. Also at the receiving end of Prahladka's allegations are a host of CBI officials connected with the case. They have been accused of fabricating the evidence that was used to convict the six foreign nationals to life imprisonment - and draw the curtains on the Purulia case.

More than four years after the sensational airdropping of assault rifles in Purulia district of West Bengal, the case has taken a new turn. The action has moved from the lower courts to the Calcutta High Court, and at issue isn't the guilt or otherwise of Bleach and the Latvians. The point in question is: was the legal process subverted to get a conviction in the case?

In his petition to the court, Prahladka has alleged that the judgement wasn't even written by Biswas. "This explains in part the numerous false statements made in the judgement. Anyone familiar with the case wouldn't have made such blunders just to give a semblance of legality to the proceedings." In a letter to Advocate-General of West Bengal N.N. Gooptu, Prahladka has alleged that Judge Biswas was influenced by Gooptu and key CBI investigators at a clandestine meeting held at the state guest house in Calcutta about a week before the judgement.

The points that Prahladka has raised include:

*The judge issued false statements about crucial evidence.

* Both judges — Biswas and his predecessor A.K. Bisi, who heard the testimony of 33 out of 144 witnesses — didn't follow mandatory procedure and issued false certificates. The original testimony of a witness was even reinstated by Biswas after the accused complained of tampering.

* The CBI fabricated the document that recorded the seizure of the aircraft.

* The CBI and police officials made false statements before the court. They said they were witnesses to the preparation of documents when they were not.

* Then joint secretary in the Union Home Ministry Shashi Prakash kept prior information about the arms drop under wraps and didn't file an fir though he was bound to do so.

Prahladka's petition alleges that one of the key pieces of evidence produced by the CBI is a briefcase that allegedly contained pictures of the Ananda Marg base in Purulia. This was used by the CBI to try and establish Purulia as the destination for the arms and link the armsdrop with the Ananda Margis. But how exactly the briefcase was recovered was never made clear.

Says Biswas in his judgement: "From the materials available on record it appears that the aforesaid materials, including the briefcase, was seized by virtue of ext (exhibit) 32, the seizure list made by D. Thakur, deputy superintendent of police on December 23, 1995 on being produced by Peter Bleach, one of the accused persons, along with other items."

However, the seizure list that Biswas apparently based his conclusion on contains seven items, but there is no mention of the briefcase. It is, therefore, still not clear who seized the crucial briefcase and where. Biswas' response: "I was sitting and dictating the judgement with a whole pile of papers. This is possibly an inadvertent error."

According to Section 278 of the Criminal Procedure Code, the testimonies of all witnesses must be "read over and explained to the witness in presence of the accused". This is a mandatory procedure of criminal law, and convictions based on testimonies that are in violation of this norm are nullified.

Biswas certified in each case that the testimony was "read over and explained to the witness in presence of the accused and admitted by him to be correct". Just one instance to show that this wasn't done: In March 1999, Bleach filed a petition before Biswas alleging that the testimony of British police officer Stephen Elcock had been tampered with, even though the judge had put his seal on it. Passing an order on the petition filed by Bleach, Biswas admitted the mistake, and ordered the original version to be reinstated.

Biswas' response: "The notes are taken in shorthand in the courtroom and then typed out. It is a very time-consuming process and would have meant detaining everybody for the procedure to be followed."

The CBI is also in the dock for irregularities. On the night of December 22, 1995 authorities at Mumbai's Santa Cruz airport detained the AN-26 aircraft carrying Bleach, Kim Davy and five Latvians for flying a route they didn't have clearance for. Davy walked off mysteriously into the night.

But as Bleach and the Latvians underwent questioning over the next two days, customs officials wrote out two panchnamas (seizure lists) that mentioned the seizure of the aircraft and the recoveries from it. The CBI placed the original panchnamas before the court. In his deposition on March 23, 1999, West Bengal dsp-cid D. Thakur stated before the judge that he was witness to the panchnamas.

But the document pertaining to the seizure of the aircraft was actually made out by officials at Santa Cruz airport. No policeman was a legal witness to its preparation, and Thakur's signature doesn't seem to figure anywhere on the document. It says that an AN-26 aircraft which was "parked" at the airport was seized "with its keys" on December 24, 1995 at 4 p.m. by customs and air intelligence officers in Mumbai.

The plot thickened when, at the time of framing charges, the CBI placed before the court another seizure list: exhibit 32. This was dated December 23, a day before the customs seizure. And the last item on this list is "one AN-26 aircraft". The question that has arisen is: how did the customs officials seize an aircraft that was already in the custody of the police? "The answer is that the aircraft wasn't seized. The backdated seizure list presented by the CBI is a fabricated document," charges Prahladka. Bleach was told to sign on this document but refused to do so.

The second panchnama prepared at Mumbai contained a list of items seized from the aircraft. The document was submitted in the original and bore Thakur's signature on all the pages. There was no argument about this, until Bleach received a show-cause notice from the Mumbai customs for a related customs violation case. The notice had copies of the panchnama submitted to the court by the CBI. But strangely — even though these were certified true copies — they did not have Thakur's signature. A closer examination of the documents submitted by the CBI in court also reveals that Thakur's signature bears the date December 25, 1995 — the day after the panchnama was completed.

"The fact is that Thakur was not a witness to the making of the panchnama," charges Prahladka. "He interpolated his signature on the original before submitting them to the court so that annexures could be fabricated to implicate Bleach and the Latvians."

Innocuous items like "coconut oil" and "Treat chocolate" take up most of the space in the first three annexures to the document. The next one, however, contains the alleged seizures of a global positioning device, night-vision telescopes and binoculars — all items that could be of use in a clandestine arms-dropping mission.

There is, however, an anomaly in that the first three annexures contain the signatures of S.K. Talpade and Rajesh, who prepared the documents. The next two don't have their signatures or of anyone else who prepared them. They are also clearly written in a different hand. The question, therefore, is: who wrote out the additional annexures? According to the petitioner, "It's a case of the CBI colluding with the cid to fabricate evidence."

Judge Biswas had issued show cause notices to the CBI and other police officers during the course of the trial, asking why they should not be prosecuted for giving false evidence. However, he decided to keep these petitions pending and passed his judgement of January 31, convicting Bleach and the Latvians.

The conviction has come and gone, but there are large pieces of the Purulia jigsaw still missing. There is a huge question mark against the role of Shashi Prakash. The Home Ministry bureaucrat had received prior information about the arms drop from British authorities on three separate occasions between November 10 and December 15, 1995. The petitioner claims that Prakash was bound by law to lodge an fir upon receiving the information. Not having done so, he becomes liable for prosecution - and for the same punishment as Bleach and the Latvians.

Judge Biswas had noted that while there was prima facie evidence against Prakash, "only the appropriate government can take action against him". However, till now no action has been initiated against the bureaucrat by any agency. Prahladka has launched another public-interest litigation in the Calcutta High Court on this. His petition comes up for hearing on the same day as the case against Biswas.

"The Shashi Prakash angle could change the whole thrust of the case," says Bleach. The questions that remain to be answered are what motivated a senior bureaucrat not to act on the information provided to him by the British authorities. And what motivated the country's premier investigating agency to submit evidence that may not stand up to scrutiny?

- India Today

Japanese rise up against Eppawala mining

By Jonathan Walters

There was a time not so long ago when even in Sri Lanka the mention of "Eppawala'' brought mostly blank stares. Now one merely need add, "you know, where they have the phosphate," and indeed everyone in Sri Lanka will know, at least everyone who reads the newspapers or watches television. At the end of March thousands of Sri Lankans took to the streets of Colombo and held well-publicized demonstrations as though to make sure that everyone now knows where Eppawala is, and knows that a determined, united front of farmers and workers, scientists and scholars, opposes its exploitation by American businessmen, standing poised to use whatever means necessary to prevent this crime against humanity.

Increasingly, this knowledge of Eppawala and of the explosive situation that has emerged around it, is not limited to the Island's shores. Eppawala has become a focus of international concern. Especially thanks to the internet, scholars, activists and others working to protect Eppawala worldwide are now linked up with each other and with overlapping networks of thousands of people fighting these particular companies (already notorious as among the worst polluters and violators of human rights on the planet today), or these particular practices (phosphate mining is one of the most harmful forms of mining known to man), or people who are interested in Sri Lanka for some other reason (whether tourists or scholars or business people).

Everywhere on the planet concerned citizens are rising up against harmful "Development" projects such as this scheme to exploit Eppawala, in Asia (e.g., the demonstrations in Bangkok in February and beside the Narmada River in India in March) and in the West (e.g., the Seattle anti-W.T.O. rallies last November, and the mass anti-l.M.F. demonstration held earlier this month in Washington, D.C.). The rallies to protect the Eppawala Phosphate Deposit are of a piece with these increasingly frequent demonstrations around the globe, heralding a changed attitude that will no longer tolerate "business as usual" exploitation of people and the planet by greedy multinational corporations. And all over the world concerned citizens have become aware of this very MIA that will destroy Eppawala, seeing it as a virtual paradigm of such harmful schemes.

Word of the impending disaster at Eppawala was spread in oral and written form beside the Narmada and in Seattle and Washington, D.C.; Bala Tampoe of the C.M.U. presented Freeport-McMoRan's role in the Eppawala "negotiations" as evidence in the general case against that notorious corporation at an international Tribunal on Global Corporations and Human Wrongs held in England in March; mass-mailings, environmentalist newsletters etc., appearing as far afield as the Philippines, Finland and Mexico in the last two months have created awareness of the Eppawala situation on a truly worldwide scale; my "Americans for Eppawala'' website has already been translated into Spanish, and a Japanese version is in the works. Friends of Eppawala from all over the world have alerted internationally famous scientists, activists and political leaders, and international human rights and environmentalist advocacies, about what is happening in Eppawala.

Japan enters the fray

Now, Japan has entered the fray full-force. Japanese scholars including specialists in Sri Lankan Studies, together with journalists, unionists, lawyers, Buddhist monks, environmentalists and other concerned citizens, have been petitioning the Japanese trading company Tomen to withdraw from this ''deal" since last year, when news of it was first released in Japan. They have recently organized themselves into a group called "Japanese Citizens for Eppawala" (JCE) in order to take their petition a step further.

IMC-Agrico is relying on Tomen Corporation for the vast capital required by this overblown plan, in exchange for a 25% stake in the profits (Sri Lanka is providing the entire resource itself, worth twenty times the total investment, for a mere 10% stake).

The first meeting of the JCE auspiciously coincided with the recent demonstrations in Colombo at the end of March 2000. Their second meeting is scheduled to be held later this month in Tokyo. These meetings are being held as part of a concerted campaign to further raise public awareness of the Eppawala situation in Japan, and organizers report that they are planning a whole series of events this June. Exposes of Tomen's participation in this harmful project have already appeared in the Japanese press, and the June meetings will further make Eppawala an issue and media event throughout this powerful Asian nation. Sayuri Miyazaki of the US-Japan Environmental Action Centre (UJEAC), who has helped to create the international links of which JCE is one important result, reports that "there will be a lot of events at the June meeting. According to an email from JCE's director Mr. Shinichi Sakuma, they are planning a Direct Request Action for Tomen, Press Conference, Report Meeting with members of Parliament, Report Meeting with the Citizens, and Friendship Gathering of Sri Lanka and Japan. The June meetings will be held just the same time as Tomen's general meeting of stockholders."

The Sunday Times has Iearned exclusively that Rev. M. Piyarathana Thera, outspoken chief incumbent of the ancient Galkanda Buddhist temple which would surely perish to this American appetite for apatite, and leader of the grassroots Committee for the Protection of the Eppawala Phosphate Deposit, is among the Sri Lankan luminaries who have been invited to attend the June meetings as the guest of the JCE. He has already met with various Japanese representatives, and has accepted the offer to address the crowds in Tokyo.

The world is watching too

The internet has played a major role in establishing the network now bearing fruit as the JCE, and in making up-to-date information available to the growing number of Japanese people who oppose Tomen's attempt to fund IMC-Agrico's destruction of Eppawala. Today there is a huge amount of information about Eppawala available on the internet, and with many Sri Lankan newspapers now "on line" it is simple for friends of Eppawala worldwide to follow the events there closely. I maintain regularly updated links to these articles on my website, "Americans for Eppawala", which makes following these events even simpler. Here the advocates' evasive silence and refusal to comment speaks volumes compared with the large body of newspaper articles and other reports that already exist on-line to demonstrate why IMC-Agrico and Tomen Corporation should NOT be allowed to commit this travesty against Sri Lanka's people and environment. Net searches for "Eppawala" "Eppawela" "Freeport-McMoRan" "IMC-Agrico" "Tomen" "phosphate" and/or "Sri Lanka" inevitably turn up scores of links to electronic sections of the overwhelming evidence already existing to prove from every possible angle that this is a foolish and evil scheme.

Whether through my links or their own "net surfing", an international audience thus also hears the disclosures: disclosures of the various rounds of secret negotiations themselves; of the ecological disaster this certainly portends for the whole of Sri Lanka; of the vast area euphemistically called ''buffer zone" which the MIA turns over free of charge to the companies that are involved; of the nefarious track-records of those very companies; of the corruption that has attended the "negotiation" process; of the fact that this will not only fail to profit the country, but will actually end up costing Sri Lanka hundreds of millions of dollars in debt to these very companies for the "privilege" of giving them a multi-billion-dollar resource! And that is to say nothing of the sale, no less, of Sri Lanka's cherished independence from militarily-enforced domination by foreign powers, after enjoying it for a mere five decades in five centuries.

Importance of listening

The advocates of this exploitation of Eppawala actively refuse to consider what the people of Eppawala are saying about their phosphate deposit, about their Jayaganga, their forests, their tanks, their villages, their fields and their lives. Negotiations have been strictly secret and it took a direct order from the Supreme Court before the advocates would even produce the relevant document. The Government of Sri Lanka and the U.S. Embassy have made no response whatsoever to the pleas of the people in their demonstrations, and in IMC ''advertorial space" these public demonstrations of the opposition of the people of Eppawala are dismissed as the work of agitators or treated as "biased" for one side in some pretended open discussion, as claimed by IMC-Agrico's Mr. Pigg in an email to me dated 7 March 2000. But like so many of his claims about the Eppawala "deal", this claim is mere subterfuge. The people have never refused to participate in discussions. Rather, on numerous specific occasions and in general, the people have been actively denied their right to participate in discussions by the advocates of this scheme. The people are therefore now shouting to be heard, and their voices are sounding loudly not only in Sri Lanka, but also throughout the world. The American, Japanese and Sri Lankan advocates of this scheme surely can hear those voices as well as the rest of us. What the promoters of this scheme on both sides of the world refuse to do, however, is to listen, to think, to comment, to care about the terrible thing they are about to do to beautiful Sri Lanka.

This refusal of the advocates to listen to what the people are saying, is in violation of globally accepted guidelines that projects such as this one should proceed in tandem with local consultation from the beginning. There still has been NO consultation with the people of Eppawala, though these negotiations have been on-going for more than ten years!

I asked Mr. Pigg point-blank whether he cares at all that the people of Eppawala are united in opposition to his scheme to exploit them, and that they intend to fight the scheme even to the death. Mr. Pigg made no response, demonstrating once again that brick wall of silence behind which the promoters of this DAP project have hidden themselves from the very beginning.

(Jonathan Walters is Chairperson ,Religion Dept., Whitman College, Walla Walla, Washington)

Inside the glass house

Editorial/ Opinion Contents