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Madurai Bench of Madras High Court
P.N. PRAKASH, J.
Mariya Anton Vijay & Others
Versus
The State represented by The Inspector of Police
Crl. R.C.(MD) No. 204 of 2014 & M.P.(MD) Nos. 1 & 2 of 2014, Crl. O.P.(MD) No. 6719 of 2014 & M.P.(MD) Nos. 1,2,3 & 4 of 2014
Decided on: 10-07-2014
Essential Commodities Act, 1955 - Section 3(b) r/w.7(1)(a)(ii) - Arms Act, 1959 - Section 25(1B)(a) and (f) - Indian Penal Code, 1860 - Section 120(B) - Possession of firearms in ship – Quash of order – Anticipatory bail - Indian Coast Guard Station Ship sensed presence of a vessel in Indian waters of Bay of Bengal and established communication links with said vessel - Name of said vessel was disclosed - When Indian Coast Guards questioned them admitted that they were in possession of firearms in ship - Indian Coast Guard Station Ship ultimately located which was anchored at Latitude North and Longitude East - Said location is about Nautical Miles from Island, District and Miles from baseline promulgated by Ministry of External Affairs Notification - According to prosecution place where was anchored was very much within territorial waters of India - Coast Guard Ship directed to weigh anchor and proceed to Port for further investigation by Indian authorities - Vessel was piloted by Captain a member of Indian Coast Guard along with three armed guards of Indian Coast Guard Station and was taken into Port at October - Various investigating agencies were alerted and a Joint Interrogation Team was constituted for interrogating Captain and Crew of ship – Held, Similarly Captain of Ship will also be liable for obtaining fuel in such a manner - As a Captain of ship it was his duty not to have entertained such transactions however innocent it may appear to be - Other crew members and guards in ship cannot be prosecuted for this offence as they have to abide by directions of Captain - Counsel for defense submitted that Captain had been sending communication to his Principals for fuel and in that circumstance when a fishing boat came and delivered drums of fuel mere acceptance of it cannot lead to prosecution of Captain for an offence under Essential Commodities Act - At first blush this argument did sound attractive but under Section 10(C) of Essential Commodities Act there is a presumption of culpable mental state - This presumption can be dislodged only during course of trial by proving beyond reasonable doubt that he did not have guilty mind - In light of this statutory presumption court unable to concur with this argument of counsel for defense - Therefore court hold Captain will be liable for offence under Control Order read with Section 7(1)(a)(ii) of Essential Commodities Act - This Court is aware of legal position that offences disclosed in Final Report by police is not on all and end all of case because Final Report is merely opinion arrived at by Investigating Officer based on materials collected by him – Therefore Court can go through materials in order to find out if they disclose commission of grave offences prejudicial to peace order and interest of India like offences under Unlawful Activities Act, 1967 etc - On plodding through evidence collected by Police court do not find any material in this regard - Though police confessions are inadmissible in evidence in order to satisfy court conscience court went through police confessions also and found no materials to even vaguely suggest that this Ship had come into territorial waters of this Country for ulterior purpose - Criminal Revision Case stand partly allowed
1. Crl.O.P.(MD)No.6719 of 2014 has been filed by A3 to A37 to quash the final report in P.R.C.No.1 of 2014 on the file of the Judicial Magistrate No.I, Tuticorin and Crl.R.C.(MD) No.204 of 2014 has been filed by A38 challenging the cognizance taken by the Judicial Magistrate No.I, Tuticorin, in P.R.C.No.1 of 2014 on the final report filed by the respondent police.
2. The factual matrix in this case as disclosed in the final report filed by the police is as follows:
2.1. On 12.10.2013, the Indian Coast Guard Station Ship "Naikidevi" sensed the presence of a vessel in the Indian waters of the Bay of Bengal and established communication links with the said vessel. The name of the said vessel was disclosed as "M.V. Seaman Guard Ohio". When the Indian Coast Guards questioned them, M.V. Seaman Guard Ohio admitted that they were in possession of firearms in the ship. The Indian Coast Guard Station Ship Naikidevi ultimately located "M.V. Seaman Guard Ohio" which was anchored at Latitude 08 52' North and Longitude 078 26.7' East. The said location is about 10.8 Nautical Miles from "Vilangusulli Island, Thoothukudi District" and 3.8 Nautical Miles from the baseline promulgated by the Ministry of External Affairs Notification SO.1197(E), dated 11.05.2009. Therefore, according to the prosecution (which is disputed by the accused) the place where "M.V. Seaman Guard Ohio" was anchored was very much within the territorial waters of India.
2.2. The Coast Guard Ship directed M.V. Seaman Guard Ohio to weigh anchor (which means to lift the anchor) and proceed to Tuticorin Port for further investigation by the Indian authorities. The vessel was piloted by Captain K.P.P. Kumar, a member of the Indian Coast Guard along with three armed guards of the Indian Coast Guard Station and was taken into Tuticorin Port at about 13.25 hours on 12th October, 2013. Thereafter, various investigating agencies were alerted and a Joint Interrogation Team was constituted for interrogating the Captain and the Crew of the ship. The Joint Interrogation Team comprised officials from Indian Coast Guard, Customs, Intelligence Bureau, Superintendent of Police, Tuticorin, Q-Branch (a special unit of the State Police which deals with terrorists and extremists), Directorate of Revenue Intelligence and Marine Police. The Interrogation Team has recorded a Minutes dated 12th October, 2013 which forms part of the police report. It may be relevant to extract the minutes verbatim:
"MINUTES OF JOINT INTERROGATION ON MV SEAMAN GUARD OHIO 12 OCT 2013
1400 Officers/Representatives from various security agencies assembled onboard MV Seaman Guard Ohio for joint interrogation.
1410 Joint Interrogation started. The Master, Chief Officer and 2nd Officer of the ship, representatives of Indian Coast Guard, Customs, IB, Police including the SP of Tuticorin, Q Branch, DRI and Marine police attended the interrogation. Following points were ascertained.
(a) Master informed that the vessel had come to the position on instructions from the company to top up provisions. There was no agent in Tuticorin and the ship only received phone numbers of persons who were contacted.
(b) Master and crew informed that the ship has received approximately 1.5 KL fuel in 10 drums from a fishing boat. They also confirmed that the due to rough sea conditions, the boat did not come alongside and the fuel drums were tied to ropes, dumped in water and pulled collected by the vessel.
(c) Chief security guard explained the method of embarkation/disembarkation of sentries as well as arms/ammunition from ports and armories respectively. The company Advanfort owns 03 vessels. Ohio is positioned in the East, Arizona in the west and third vessel is in dock. The arms come from the UK. Sentries and arms are embarked/disembarked on client vessels as per the schedule given by the company. However the authorisation/license to hold arm and ammunition onboard was not held. The guard informed that efforts are being made to obt
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