IMPORTANT POINTS
Instead of considering prima facie case, High Court appreciating and weighing materials on record, virtually acting as an appellate court. Approach held illegal and erroneous.
Where material questions arise which require trial to decide, High Court should not exercise jurisdiction u/s 482 CrPC.
If the law laid down by Supreme Court is not applied properly, the resulting order has to be set aside.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 482 – Instead of considering prima facie case, High Court appreciating and weighing materials on record – Concluding that charge sheet could not have been filed against the accused persons and further, no charges could have been framed – Virtually acting as an appellate court – Approach illegal and erroneous. (Para 91, 92, 93)
       1992 supp (1) SCC 335; (2008) 2 SCC 57 – Relied upon
       (2013) 4 SCC 721 – Referred
       (b) Code of Criminal Procedure, 1973 – Section 482 and 397 – Material questions – Not capable of being answered without evidence – Could be done only in trial – Not u/s 482 or 397. (Para 98, 99, 103)
       (2008) 2 SCC 57 – Relied upon
       (c) Arms Act, 1959 – Section 45(a) r/w section 482, Code of Criminal Procedure, 1973 – High Court, exercising jurisdiction u/s 482, holding inapplicability of the Act – Could be decided either way only by trial – Not u/s 482 – Section 45(a) exempts only those arms forming part of the ordinary armament or equipment of the vessel – Section 45(a) does not enable every vessel to carry any number of arms/ammunition regardless of its purpose, necessity and requirement to carry such arms/ammunition on the vessel – Whether the arms form part of the ordinary armament or equipment of the vessel is a question of fact – Cannot be decided u/s 482. (Para 108, 110, 111)
       (d) Arms Act, 1959 – Section 45(a) – Accused persons not adducing any evidence to prove that huge quantity of arms and ammunition including prohibited category of arms which were seized from the vessel formed part of the ordinary armament or equipment of their vessel – High Court interfering before the stage of evidence being reached causing prejudice to prosecution – Without any finding on the issue of arms being ordinary armament or equipment, High Court quashing proceedings – Not sustainable. (Para 112)
       (e) Arms Act, 1959 – Section 25(a) r/w sections 397 and 482, Code of Criminal Procedure, 1973 – Possession – In view of large cache of arms, some of them prohibited, High Court should have permitted trial – High Court should have dismissed the revision petition u/s 397 and also the petition u/s 482 and remanded the case to the Trial Court. (Para 113, 115)
       (1972) 2 SCC 194 – Relied upon
       (f) Constitution of India – Article 141 – Law laid down by Supreme Court – If not applied properly – Resulting order has to be set aside. (Para 117)
       1992 supp (1) SCC 335; (2008) 2 SCC 57 – Relied upon
       Facts of the case:
       A ship owned by an American Company was seized within Indian waters carrying unauthorised arms and 200 liters of diesel brought illegally.
       A1 and A2 being the Company and its owner stationed in USA could not be apprehended.
       The High Court quashed the proceedings against all the accused under Arms Act. It however prima facie found A3 and A38 could be tried for offences under Essential Commodities Act and directed their trial.
       Finding of the Court:
       High Court should not have quashed the proceedings.
       Result: Appeal allowed.

JUDGMENT

Abhay Manohar Sapre, J.

(1) Leave granted.

(2) These appeals are filed by the State against the common final judgment and order dated 10.07.2014 passed by the Madurai Bench of the Madras High Court in Crl. R.C.(MD)No. 204 of 2014 and Crl. O.P. (MD) No. 6719 of 2014 whereby the High Court partly allowed the criminal revision case and the criminal original petition filed by the accused persons.

(3) The relevant facts giving rise to these appeals though have been set out in great detail in the impugned judgment of the High Court, have to be recapitulated in order to enable us to give our own reasons keeping in view the law laid down by this Court in the decisions referred to hereinbelow. The material facts mentioned herein are taken from impugned judgment, charge sheet/final report and the special leave petitions.

(4) The appellant is the State of Tamil Nadu represented through the Inspector of Police “Q” Branch of CID Tirunelveli Range and Thoothukudi, Tamil Nadu whereas the respondents are the accused persons.

(5) On 11.10.2013, the Indian Coast Guard Thoothukudi received an information that one Vessel named "M. V. Seaman Guard Ohio" was stationed at 10.8 Nautical miles from Vilangusuhi Island of India/Thoothukudi Port and 3.8 Nautical miles away from the baseline promulgated by the Ministry of External Affairs, Government of India vide Notification No. SO-1197 (E) 11.05.2009. The Vessel was located within the territorial seawaters of India. The information received also revealed that one unidentified boat from Thoothukudi coast was suspected to have sailed to the Vessel for doing some kind of illegal activities on the vessel with the connivance of crew members on the vessel.

(6) On the basis of information received, the Indian Coast Guard Station Ship "Naikidevi" intercepted the suspected vessel. On reaching there, the sleuths of the Coast Guard questioned the crew members and inquired as to whether they possessed any arms, ammunitions, guards etc. on the vessel? On being questioned, the crew members candidly admitted that they do possess and were carrying with them arms and ammunitions on the vessel.

(7) On such disclosure being made admitting therein that the vessel was carrying arms/ammunition, the Coast Guard Ship directed M.V. Seaman Guard Ohio to weigh anchor and proceed to Tuticorin Port for further investigation by the concerned agencies. The vessel was accordingly escorted under the supervision of Captain KPP Kumar along with 3 armed guards of Indian Coast Guard Station. The vessel reached the port around 13.25 hrs on 12.10.2013.

(8) The joint interrogation team was accordingly constituted comprising of representatives of Indian Coast guard, Customs Department and other agencies. The team members visited the vessel on the same day, i.e.,12.10.2013 at 14.00 hrs. and undertook thorough inspection of the vessel. The team members also interrogated the crew members staying on the vessel. It continued till the next day (13.10.2013), which inter alia revealed that the vessel was carrying huge quantity of arms/ammunition without any valid authorization and documentation by the crew members. It was further revealed that the vessel had received diesel in bulk quantity from one Indian fishing boat illegally few days back after the vessel entered in Indian Sea waters.

(9) The vessel was accordingly handed over to Coastal Security Group Thoothukudi on 13.10.2013. Mr. Narendran-Assistant Commandant Boarding Officer of Indian Coast Guard Ship, Naikidevi lodged a written complaint with the Tharuvaikulam Marine Police Station, Tuticorin stating the aforementioned facts with details, which had come to their knowledge while inspecting the vessel.

(10) On receipt of the report, immediately the Inspector of Police Marine PS Tharuvaikulam registered a First Information Report (in short “FIR”) in Cr.No. 18/2013 under Section 25 (1B) (a) and (f) of the Arms Act, 1959 read with Section 3(b) and Section 7 (1) (a) (ii) of the Essential

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2015 Supreme(SC) 703

Cases Referred (3)