advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, July 4, 2015

It is a settled principle of law that if a law laid down by this Court was not applied properly by the High Court then such order has to be set aside. In this case, we find that the law laid down by this Court in Bhajan Lal (supra) and S.B Johari's case (supra) was not applied In our considered opinion, therefore, this was a case where the High Court should have dismissed the revision filed by the accused under Section 397 and also the petition filed under Section 482 of the Code and remanded the case to the Trial Court to proceed in the case to enable the prosecution to adduce evidence on merits in support of the charge sheet after framing of the charges and also allow the defence to lead their evidence so as to bring the case to its logical conclusion in accordance with law. In other words, this was not a case falling in a category of rare case requiring interference of the High Court by invoking powers under Sections 397 or/and Section 482 of the Code as laid down in the case of Bhajan Lal (supra). Trial Court, which has seized of the case out of which these matters arise, is directed to proceed with the case and decide the same on merits in accordance with law. Let the trial be completed by the Court concerned within six months from the date of receipt of copy of this judgment. Copy of this judgment be filed in the Trial Court within two weeks.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No. 836 OF 2015
                (Arising out of S.L.P.(Crl.)No. 7082 of 2014)

The State rep. by the
Inspector of Police, ‘Q’
Branch C.I.D.,Tirunelveli
Range, Tamil Nadu                            Appellant(s)

                            VERSUS

Mariya Anton Vijay                           Respondent(s)
WITH
                       CRIMINAL APPEAL No. 837 OF 2015
                (Arising out of S.L.P.(Crl.)No. 7099 of 2014)

The State rep. by the
Inspector of Police, ‘Q’
Branch C.I.D.,
Thoothukudi                            Appellant(s)

                            VERSUS

Dudinik Valentyn
Captain of Vessel & Ors.                     Respondent(s)

                               J U D G M E N T
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
Commodities Act, 1955 read with Section 2(m) (5) of Motor  Spirit  and  High
Speed  Diesel  (Regulation  of  Supply,  Distribution  and   Prevention   of
Malpractices) Order 1990.
(11) The registration of FIR led to deeper investigation  into  the  matter.
However, looking to the seriousness of the matter, the DGP  Tamil  Nadu,  by
order dated 15.10.2013 in RC No 176936/crime/ IV  (2)/2013  transferred  the
case to “Q” Branch, CID for further  investigation.
(12)   The sleuths of CID Branch accordingly took up the  investigation  and
visited the vessel on 16.10.2013 (MV Seaman Guard Ohio  Vessel),  which  was
by that time brought to the V.O.C. Thoothukudi port.  After  inspecting  the
vessel, the team made necessary sketches and directed the vessel  to  remain
at the port under the custody of Port authorities to enable  them  to  carry
out thorough investigation. It was revealed  that  around  35  crew  members
were stationed on the vessel out of which 11 were  Indian  national  whereas
remaining were foreign nationals.
(13)   On 17.10.2013, the investigation team again  visited  the  vessel  to
collect more information. During this visit, it was found that 35  firearms,
5682 ammunition and 102 magazines  were  kept  in  the  vessel  without  any
documents and authorization certificates. These  arms  and  ammunition  were
accordingly seized after doing  physical  verification  on  18.10.2013.  The
investigating team also intimated to the Court  of  Judicial  Magistrate-II,
Thoothukudi about the factum of seizure of  arms/ammunition  made  by  them.
Independent witnesses attested the seizure of arms/ammunition  made  by  the
team members.
(14)   On 18.10.2013, three crew members on the vessel described as A-4  A-6
and A-37 were arrested whereas other two,  A-3  and  A-5,  were  allowed  to
remain in vessel for doing maintenance work on their request. These  arrests
were made after observing necessary legal formalities.
(15)   On 19.10.2013, the other two crew members, A-3  and  A-5,  were  also
arrested, as none of the crew members, namely, A-3 to  A-37,  including  the
Captain of the vessel, who was under legal obligation to carry with him  the
necessary documents during voyage, were able to produce  any  document  such
as licenses issued by the  statutory  authorities  or  authorization  orders
issued by any competent authority as required under the Arms Act or/and  any
other law akin to Arms  Act  of  any  country  in  relation  to  the  seized
arms/ammunition to show that they were duly authorized to possess and  carry
these arms/ammunition for their own use while on the vessel.
(16)   The seized firearms and ammunition were accordingly remanded  to  the
judicial custody on 18.10.2013 and kept at the armory  of  CISF  Thoothukudi
as ordered by the  Court.  On  19.10.2013,  Maria  Anton  Vijay  (A-38)  was
arrested whereas Vijay (A-39),  Ranjit  Kumar  (A-40),  Murgesh  (A-41)  and
Selvam (A-42), crew members, were arrested on  20.10.2013.   On  24.10.2013,
Paul David Dennish Towers (A-4), Lalit Kumar Gurung (A-6) and  Radhesh  Dhar
Dwivedi (A-7) crew members were taken to police  custody  for  interrogation
where their voluntary confessions were recorded. Later on,  they  were  also
arrested.
(17)    Pursuant to  the  disclosure  made,  the  investigating  team  again
visited  the  vessel  on  27.10.2013  and  recovered  certain  documents  in
relation to the seized weapons movement and  e-mail  transactions  exchanged
between the owner of the vessel- Advanfort Company USA and the crew  members
stationed at the vessel. The  investigating  team  also  seized  about  2000
liter diesel kept in 10 barrels on the deck,  which  was  purchased  by  the
crew members on 11.10.2013 when the vessel  was  in  territorial  waters  of
India and anchored therein.
(18)    It was further revealed that the owner of the  vessel  had  credited
40,476 US $ (around Rs.20 lakhs) from USA to  India  through  HDFC,  Chennai
account of A-43 bearing No. 50200000105782.  Thereafter, A-43  had  credited
Rs.10 lakhs in HDFC account of A-41 (A/c No. 11041050004770) who,  in  turn,
had withdrawn Rs.7 lakhs on 09.10.2013 and handed over the same to  A-38  to
enable him to purchase the bulk quantity diesel, which  was  transported  to
the vessel with the help of fishing boats successfully.
(19)    On 31.10.2013, the seized arms/ammunition were sent  to  Tamil  Nadu
Forensic Sciences Department,  Chennai  for  analysis   and  diesel  samples
collected from 10 barrels  were  sent  to  Hindustan  Petroleum  Corporation
Limited, Chennai for its analysis under the orders of the Court.
(20)    On 08.11.2013 the ballistics report  was  received  which  confirmed
that out of 49 items of arms/ammunition, item Nos. 16 to 21 were  prohibited
arms/ammunition as defined under Section 7 of  the  Arms  Act  whereas  rest
were ordinary firearms.
(21)   Investigation also revealed that the vessel in question belongs to A-
1, which is a company known as "Advanfort  Company”  having  its  office  at
1875 Eye Street, MW 5th floor Washington DC–2006,  USA  and  its  Operations
Director is A-2-Mr. Mohamed Frajallah. Both A-1  and  A-2  were  responsible
for all clandestine acts and deeds done by them with the connivance of  crew
members. Likewise, as mentioned above, A-3,  who  was  the  Captain  of  the
vessel, and A-4, who was Tactical Deployment  Officer  of  the  vessel  were
found in physical possession of 35 illegal  and  unauthorized  firearms  and
other ammunition without any valid documents and were  thus  found  directly
involved in the entire operation. Likewise,  A-5  to  A-37,  who  were  crew
members on the Board, were equally found involved in joint operation with A-
3 and A-4 and were accordingly found responsible for commission  of  various
offences registered against them so also    A-38 to  A-45,  who  were  found
involved in supply of bulk quantity of diesel and other items  to  the  crew
members for running vessel and, therefore, found responsible for  commission
of the offences registered against them under various Acts  as  detailed  in
the FIR.
(22)    After completion of  the  investigation  which  was  based  on  spot
inspection of the vessel and  other  places  as  disclosed  by  the  accused
persons during their interrogation, examination  of  witnesses,  seizure  of
documents, arms/ammunition, various  articles  from  the  vessel  and  other
places, opinion of statutory authorities on seized items, opinion of  public
prosecutor and  sanction  order  obtained  from  competent  authorities  for
filing prosecution case under the Arms Act, a detailed  charge  sheet  along
with several documents and other materials  collected  during  investigation
was filed by the investigation officer against the respondents  herein  (A-1
to  A-45)  on  30.12.2013  before  the  Judicial  Magistrate  Court  No.   1
Thoothukudi bearing PRC No. 1 of 2014  seeking  prosecution of  the  accused
persons (A-1 to A-45) for commission of  offences punishable under  Sections
33, 35 and 3 read with Section 25 (1B) (a), Section 7 read  with  25  (1-A),
Section 10 read with Section 25 (1-B) (f) of the Arms Act 1959 and  Rule  30
of the Arms Rules, 1962 , Section 36 (2) read with Section 30  of  the  Arms
Act and Section 3 (2) (d) read with Section  7(1)(a)(ii)  of  the  Essential
Commodities Act, 1955 and Order 2(e)(v)(vi) of the  Motor  Spirit  and  High
Speed  diesel(Regulation  of   Supply   Distribution   and   Prevention   of
Malpractices) Order 1998 and Section 120-B of IPC.
(23)    On perusal of charge sheet and enclosed materials,  the  Court  took
cognizance of the case and accordingly  on  20.01.2014  issued  non-bailable
warrants  against  A-1  (Advanfort  Company)  and  A-2  (Mohamed   Frajallah
Director Operations), who are the resident of  USA  (Washington)  for  their
arrest and appearance in the Court in  connection  with  the  commission  of
aforementioned offences along with other accused named above.  However,  two
accused (A-1 and A-2) are still not apprehended  despite  issuance  of  non-
bailable warrants against them, which remain unexecuted. Similarly, A-43, A-
44 and A-45 are also not yet apprehended and absconding.
(24)    So far as the other  accused,  i.e.,  A-3  to  A-41  are  concerned,
though they were arrested on different dates, some were enlarged on bail  by
the Trial  Court and remaining by the  High  Court  on  different  dates  on
terms imposed on them.
(25)     This led to filing of two criminal cases  by  the  accused  persons
before the Madurai Bench of Madras High Court. So far  as  accused  A-38  is
concerned, he filed Criminal Revision(MD) No. 204/2014 under Section 397  of
Criminal Procedure Code,  1973  (hereinafter  referred  to  as  “the  Code”)
wherein  the  challenge  was  to  the  cognizance  taken  by  the   Judicial
Magistrate of the charge sheet seeking to prosecute A-38 for  commission  of
several offences detailed therein. So far as  A-3  to  A-37  are  concerned,
they filed Crl.O.P. (MD) No. 6719 of 2014 under  Section  482  of  the  Code
wherein they also sought quashing of the  final  report/charge  sheet  filed
seeking to prosecute  them  for  commission  of  various  offences  detailed
therein.
(26)    By common impugned judgment/order, the learned Single Judge  of  the
High Court partly allowed both  the  cases.   The  High  Court  quashed  the
charge sheet/final report filed against all the accused persons  insofar  as
it related to offences punishable under the Arms Act are concerned.  It  was
held that no prima facie case has been made out on the facts set out in  the
charge sheet to prosecute any of the accused persons for commission  of  any
offence punishable under the Arms Act and hence  charge  sheet/final  report
filed by the State prosecuting agency for  commission  of  various  offences
punishable under the Arms Act  against  all  the  accused  persons  to  that
extent deserves to be quashed at the threshold. It was  accordingly  quashed
to that extent.
(27)    The High Court, however, upheld  the  filing  of  the  charge  sheet
against A-3 and A-38 for their  prosecution  in  relation  to  the  offences
punishable for violating the Control Order, 2005 punishable under Section  3
(ii) (d) read with Section 7 (1) (a) (ii) of the Essential Commodities  Act,
1955 (in short “the EC Act”), holding that prima facie  case  against  these
accused for commission of offences under the EC Act is made  out  and  hence
these accused persons have to face trial on merits insofar as  the  offences
punishable under the said Act are concerned.
(28)    It is apposite to reproduce the operative portion of  the  order  of
the High Court in paragraph 43 infra,
“In fine, I find that the prosecution of the accused for the offences  under
the Arms Act, 1959 is  not  maintainable.  Hence,  the  prosecution  of  the
petitioners in both petitions under the Arms Act, 1959  is  quashed.  Mariya
Anton [A38] will be liable for prosecution for violating the Control  Order,
2005 punishable under Section 3(ii)(d)  r/w  7(1)(a)(ii)  of  the  Essential
Commodities Act, 1955. Dudinik Valentyn [A3], the Captain of the  Ship  will
be liable for abetment of the offence committed by Mariya Anton [A38]  under
the Essential Commodities Act within the Indian territorial waters.
The cognizance taken by the learned Judicial Magistrate for  offences  under
the Arms Act is set aside.
      Accordingly, the Criminal Original Petition and the Criminal  Revision
Case stand partly allowed. Consequently, M.P.Nos.  1&2/2014  in  Crl.R.C(MD)
No.  204/2014  and  M.P.Nos.  1,2&4/2014  in  Crl.O.P.(MD)No.6719/2014   are
closed.”

(29)    The effect of the impugned order is that only two accused namely  A-
3 and A-38 will have  to  face  prosecution  in  relation  to  the  offences
punishable for allegedly violating the  conditions  of  the  Control  Order,
2005 issued under the Essential Commodities Act. In  other  words,  all  the
accused  persons  (A-3  to  A-45)  stand  discharged  insofar  as   offences
punishable under the Arms Act are concerned whereas the  charge  sheet/final
report filed against two accused, A-3 and  A-38,  in  relation  to  offences
punishable under the Essential Commodities Act  is  held  legal  and  proper
and, therefore, trial on merits would  be  held  against  A-3  and  A-38  in
relation to offences punishable under the Essential Commodities Act.
(30)    Aggrieved by the said judgment/order of the High  Court,  the  State
has filed these appeals by way of special leave before this Court.
(31)    This is how the controversy is brought before this Court to  examine
the legality and correctness of  the  impugned  order  passed  by  the  High
Court.
(32)    The question which arise  for  consideration  in  these  appeals  is
whether the High Court was justified in quashing the charge  sheet  in  part
in exercise of powers under Section 397 or/and Section 482 of  the  Code  at
the instance of accused persons  insofar  as  it  related  to  the  offences
punishable under the Arms Act?
(33)    Heard  Mr.  K.  Ramamoorthy,  Mr.   C.A.  Sundaran,  learned  senior
counsel Mr. Hari Narayan V.B and Mr. P.B. Suresh, learned  counsel  for  the
parties.
(34)    Mr. K. Ramamoorthy,  learned  senior  counsel  for  the  State,  the
appellant herein  while  assailing  the  legality  and  correctness  of  the
impugned order, urged several contentions. He contended that the High  Court
erred in quashing the charge sheet in relation to offences punishable  under
the Arms Act against all the accused. According to him, the entire  approach
of the High Court in entertaining the criminal revision and  petition  filed
under Section 482 of the Code  seeking  to  quash  the  charge  sheet  filed
against the accused persons was per se illegal and erroneous  being  against
the well settled principle of law laid down by this Court  in  a  catena  of
decisions.
(35)    Elaborating his submissions, learned senior counsel  contended  that
firstly,  there  was  no  basis  factually  or/and  legally  to  invoke  the
revisionary power under Section 397 or/and inherent power under Section  482
of the Code for quashing the charge sheet at the threshold.
(36)    Secondly, learned  counsel  contended  that  having  regard  to  the
nature of controversy  and  the  materials  collected  during  investigation
coupled  with  the  admitted  fact  that  huge   quantity   of   unlicensed,
unauthorized arms/ammunition including prohibited arms were  recovered  from
the vessel were sufficient to attract the provisions of  the  Arms  Act  for
prosecuting the accused persons as it was  enough  for  holding  that  prima
facie these accused persons have committed the offence punishable under  the
Arms Act rendering them liable to face the prosecution  in  accordance  with
law.
(37)    In any case, according to learned counsel, the  issues  involved  in
this case were such that it required full trial on merits and for  that  the
prosecution should have been afforded an opportunity  to  prove  their  case
set up in the charge sheet by adducing evidence in support of  the  contents
of the charge sheet.
(38)    Thirdly, learned counsel contended that this was not  a  case  where
the High Court could have formed any opinion or as a matter of fact  was  in
a position to form any opinion by simple reading the contents of the charge-
sheet and perusing the materials collected in support of  the  charge  sheet
for holding that no prima facie case under the Arms Act against any  of  the
accused was made out or that allegation made in the  charge  sheet  were  so
absurd that no trial on such facts  was  legally  possible  and  if  it  was
allowed to be held then it would have amounted to sheer abuse  of   exercise
of powers and harassment to all accused.
(39)    On the other hand, learned counsel contended that  mere  reading  of
the charge sheet running into  several  pages  coupled  with  the  materials
filed in support thereof  and  more  importantly,  the  admitted  fact  that
unlicensed and unauthorized arms/ammunition in huge quantity were  recovered
from the vessel which was in possession and control of crew  members(accused
persons) fully justified prima facie that prosecution  of  accused  for  the
offences punishable under the Arms Act was  called  for  requiring  them  to
face trial on merits in accordance with law.
(40)    Fourthly, learned counsel contended that the  High  Court  committed
yet another  jurisdictional  error  when  it  decided  the  matter  like  an
appellate court and in this  process  appreciated  the  factual  allegations
made in the charge  sheet  and  documents/materials  filed  along  with  the
charge sheet which were yet to be proved in evidence and  further  committed
an error in proceeding to draw inferences  therefrom  for  holding  that  no
prima facie case was made  out  against  any  of  the  accused  persons  for
commission of the offences punishable under the Arms Act. Such  approach  of
the High Court, according to the learned counsel,  being  against  the  well
settled principle of law laid down by  this  Court  in  many  decisions  has
rendered the impugned order bad in law.
(41)    Fifthly, learned counsel contended that the  High  Court  failed  to
keep in mind the subtle distinction between the powers which  are  exercised
by the High Court while deciding criminal appeal arising out of final  order
of conviction and the powers which are exercised by  the  High  Court  while
deciding petition under Section 482 of the Code.
(42)    In the former category of cases, according to learned  counsel,  the
High Court is fully empowered to probe into the issues of facts and the  law
as also empowered to appreciate the entire evidence for  recording  findings
whereas in the later category of cases,  the  High  Court  is  empowered  to
examine only jurisdictional issues arising in the  case  on  admitted  facts
without going into any appreciation of such facts and  evidence.  Since  the
High Court, according to learned counsel, failed to keep this  well  settled
distinction in mind and proceeded to decide the matters  like  an  appellate
court, it has rendered the impugned order wholly unsustainable.
(43)    Sixthly, learned counsel contended that the  High  Court  failed  to
see that once the charge sheet was filed and its cognizance  taken,  by  the
magistrate, the case was required to be committed to the Session  Court  for
trial on merits in accordance with law so that the issue is brought  to  its
logical conclusion one way or other, i.e., either  resulting  in  conviction
or acquittal of the accused.
(44)    In this case, according to learned counsel, before this stage  could
arrive, the High Court intervened without there being any  justification  by
invoking its inherent jurisdiction under Section 482 and quashed the  charge
sheet in part. Such exercise of jurisdiction by the High Court has  rendered
the impugned order bad in law.
(45)    Seventhly, learned counsel contended  that  the  High  Court  though
mentioned the law laid down by this Court in  State  of  Haryana  &  Ors  Vs
Bhajan Lal & Ors. (1992 supp (1) SCC 335) and State  of  Madhya  Pradesh  Vs
S.B. Johari & Ors. (2008) 2 SCC 57  but  unfortunately   failed  to  examine
the facts of the case in hand in the light of the law  laid  down  in  these
two cases much less in its proper perspective.
(46)    It was, therefore, his submission that if the facts of the  case  in
hand had been examined in the light of law laid down  in  the  case  of  S.B
Johari's case (supra) because the facts of the case  in  hand  and  the  one
involved in S.B. Johari's case (supra) were more or less  identical  on  all
material issues, then the High Court would have upheld the charge  sheet  in
its entirety.
(47)    Eighthly, learned counsel contended that the case in  hand  did  not
involve any  jurisdictional  issue  such  as   (1)  despite  there  being  a
requirement to obtain prior statutory sanction to file the charge sheet,  no
sanction was obtained or  (2) lack of an  authority  of  a  person  who  has
filed the  charge sheet or (3) the contents  of  the  charge-sheet  were  so
vague, inadequate or/and absurd that even after reading them as a  whole  it
did not constitute prima facie case against any accused under the  Arms  Act
etc. so as to enable the High Court to entertain the petition under  section
482 of the Code.
(48)     According to learned  counsel,  these  being  usually  the  grounds
raised by the accused to challenge the FIR/ charge sheet/final report  in  a
petition under Section 482 of the Code in the  High  Court  no  such  ground
really existed even prima facie in favour of any accused on facts/law so  as
to enable the High Court to quash the  charge  sheet  by  invoking  inherent
jurisdiction of the High Court treating this case to be the  rarest  of  the
rare.
(49)   Ninthly, learned counsel contended that in  this  case  there  should
have been a trial  which  would  have  enabled  the  prosecution  to  adduce
evidence in support of the charges and, in  turn,  would  have  enabled  the
accused to lead evidence in defence. This not having been done,  has  caused
prejudice to the prosecution because  despite  collecting  evidence  against
the accused, the prosecution was deprived of  their  right  to  prove  their
case against any accused on merits in trial.  This  has  also  rendered  the
impugned order bad in law.
(50)    Tenthly, learned counsel contented that  the  High  Court  erred  in
travelling into the factual matrix of the whole  controversy  without  there
being any evidence on record and, therefore,  erred  in  recording   factual
findings on several material factual issues arising  in  the  case  such  as
whether the vessel in question was  in  Indian  sea  water  and  if  so  its
effect, what was the nature of business in which  the  vessel  was  engaged,
vessel's registration to do business etc., the  effect  of  registration  on
the controversy in question, whether vessel  was  enjoying  the  benefit  of
innocent passage as provided in  (UNCLOS)  in  sea  waters  and  if  so  its
effect, whether vessel was in distress at any time and  if  so,  whether  it
ensured compliance of the relevant clauses of United Nations  Convention  on
the law of Sea (UNCLOS)  providing  remedial  measures  to  follow  in  such
eventuality and how these clauses were  complied  with,  whether  there  was
any conspiracy to commit any offence and if so, how?
(51)    It was his submission that in no case  the  High  Court  could  have
gone into any of the aforementioned material factual issues arising  in  the
case in a petition filed under Section 482 of the  Code  because  all  being
purely factual issues, could be gone into only in an  inquiry  made  by  the
Trial Court on evidence in accordance with law.
(52)    Eleventhly, learned Counsel contended that the  High  Court  further
erred in not examining the effect  of  recovery  of  unauthorized/unlicensed
arms/ammunition from the possession and control  of  the  accused  lying  in
vessel and also the accused persons not being able to produce any  documents
of  title  in  relation   to   the   seized   arms/ammunition   or/and   any
certificate/license issued by  the  competent  authorities  to  prove  their
right to possess and carry along  with  them  such  arms/ammunition  on  the
vessel.
(53)    Non-consideration of these material  issues  and  without  recording
any  finding  thereon  has,  according  to  learned  counsel,  rendered  the
impugned order bad in law.
(54)    Twelfthly, learned counsel contended that  the  High  Court  grossly
erred in holding that the Arms Act does not apply to the vessel in  question
and, in consequence, cannot be applied against the accused persons.  It  was
his submission that the interpretation made by the High Court of Section  45
(a) was not in conformity with the Object of the Act. According  to  learned
counsel, due to erroneous interpretation of Section 45 (a) made by the  High
Court, the accused person got the benefit  which  otherwise  they  were  not
entitled to get. The finding on this issue, therefore, deserves  to  be  set
aside.
(55)    Learned counsel further maintained that  Section  45  (a)  does  not
apply to the case in hand and in any event, according to him,  the  question
as to whether benefit of exemption as  provided  under  Section  45  (a)  is
available to the accused or  not  can  be  decided  only  when  the  accused
persons are able to prove in their defence  by  adducing  adequate  evidence
that the ingredients of Section 45 (a) are fully satisfied  by  them.  This,
according to learned counsel, was not proved by the accused persons  because
no documents were produced by them  during  investigation  and  before  they
could be called upon to adduce evidence in trial,  the  High  Court  invoked
the inherent powers and interfered in  the  investigation  by  quashing  it.
The finding on this issue  is,  therefore,  against  the  plain  reading  of
Section 45 (a) and renders the impugned order legally unsustainable.
(56)    Lastly, learned counsel placed reliance on  the  decisions  of  this
Court reported in Bhajan Lal case (supra),  S.B.  Johari  case  (supra)  and
Gunwantlal vs The State of Madhya Pradesh, (1972) 2 SCC 194 and prayed  that
applying the law laid down in these cases to the facts of the case in  hand,
these appeals deserve to be allowed by setting aside the impugned order  and
remanding the case to the concerned trial court for  conducting  full  trial
on merits in accordance with law.
(57)    In reply, learned senior counsel Mr. C.A.  Sundaram,  and  Mr.  Hari
Narayan V.B, and Mr.  P.B.  Suresh  appearing  for  the  respondents-accused
supported the impugned order and contended that  no  case  is  made  out  to
interfere  in  the  impugned  order.   Learned  counsel   elaborated   their
submissions in support  of  the  reasons  recorded  by  the  High  Court  by
referring to counter affidavits and various documents on record.
(58)    Having heard learned Counsel  for  the  parties  at  length  and  on
perusal of the  entire  record  of  the  case,  we  find  force  in  various
submissions urged by the learned senior counsel for the State.
(59)    Before we deal with aforementioned various submissions, we  consider
it apposite to take note as to  how  and  in  what  manner  the  High  Court
decided the issues in the impugned order. Indeed, it is  necessary  to  keep
this fact in mind in the light of the submissions of the learned counsel.
(60)    Out of 61 pages in which the impugned judgment was  rendered,  first
4 Paragraphs (pages 1 to 14) were devoted by the  learned  Single  Judge  in
mentioning factual matrix of the  case.  This  was  followed  by  mentioning
submissions of the parties in Paras 5 to 9 (15 to 30 pages) followed by  the
discussion, findings and conclusion in Paras 10 to 43 (pages 31 to 61).
(61)    After narrating the submissions, the Single Judge in Para  10  began
his discussion with following observations:-
      “………Initially, this Court did  not  want  to  even  admit  this  quash
petition and cross the Lakshman Rekha in view of the caution sounded by  the
Supreme  Court  in  the  aforesaid  judgment.  But,  the  following  aspects
prompted this Court to break away from the self imposed barrier and peep  to
see if there is any legitimacy in the prosecution.  Even  according  to  the
Police, M.V. Seaman Guard Ohio is a Flag Ship registered in Sierra Leone,  a
U.N. Member State.”

(62)    Immediately,  after  the  aforementioned  observations,  the  Single
Judge set out the  reasons  in  the  same  para  which,  according  to  him,
prompted him to break the “Laxman Rekha” (expression used  in  the  impugned
order) due to peculiar facts for  invoking  inherent  powers  to  interfere.
These reasons are reproduced in verbatim infra:
      “(1) Even according to the police, M.V.Seaman Guard  Ohio  is  a  flag
Ship registered in Sierra Leone, a U.N.Member State.
      (2) The majority in the ship's crew are Indian nationals  with  Indian
passports (8 names are mentioned i.e. A-6 to A-13).
      (3) The Chief cook, who hails from Uttaranchal State, has also  joined
in the conspiracy and made accused along with others.
       (4) As regards the security guards, four are Indians (A-31, A-33,  A-
34, and A-37).
      (5) The central  Agencies  like  Intelligence  Bureau,  DRI  etc.  got
involved on 12 & 13.10.2013 and thereafter they handed over  the  matter  to
the State  Police  to  be  investigated  as  any  other  ordinary  municipal
offence.
      (6) The  “Q”  branch  CID  of  the  Tamil  Nadu  Police  is  an  elite
investigating unit and has got a very good track  record  of  cracking  down
terrorists and extremists. After their  investigation,  they  were  able  to
file a final report only for possession simplicter  of  prohibited  firearms
and for violation of control order under the Essential Commodities  Act  and
nothing more. In other words, the  final  report  does  not  even  show  any
needle of suspicion about the involvement of the crew members and others  in
the ship in any crime that is prejudicial to the interest of this country.”

(63)    After setting out 6 reasons, the learned Single  Judge  in  para  10
observed as under:-
“Therefore, for the aforesaid reasons, this Court ventured to  go  into  the
final report and  the  accompanying  documents  to  find  out,  even  if  by
accepting the entire averments found  therein  as  gospel  truth,  would  it
attract a prosecution under the  Arms  Act  and  the  Essential  Commodities
Act?”

(64)    Then in Para 11 the Single Judge rejected the defence submission  on
the ground that the ship was not  within  the  Indian  territorial  Sea  and
holds that it being a question of fact cannot be looked into while  deciding
the petition  under  Section  482  of  the  Code,  which  reads  as  under:-

“The learned counsel for the defence submitted that the ship was not  within
the Indian territorial sea. In my considered opinion,  this  is  a  disputed
question of fact which cannot be looked into while dealing with  a  petition
under Section 482 Cr.P.C. Therefore, this Court will go  under  the  premise
that the ship was within 12 Nautical Miles and was in  the  territorial  sea
of India.”

(65)    Thereafter in para 12, the Single Judge formulated the question  for
decision which reads as under ;
      “Now the line of enquiry is, can the crew and the guards in  the  ship
be prosecuted for possession of prohibited arms under the Arms Act?”

(66)    Thereafter in  Para  13,  the  Single  Judge  observed  that  it  is
legitimate for the Court to take   “judicial  notice  of  certain  notorious
facts” and then set out facts relating to  piracy,  which  we  consider  has
nothing to do with the case in hand being general in nature. However, it  is
worth reproducing hereinbelow:
“13.  It will be legitimate for  this  Court  to  take  judicial  notice  of
certain notorious facts and those facts are as follows:

Merchant vessels all over the world are not permitted to carry arms.  Piracy
in and around Indian Ocean, especially by Somali Pirates, is  a  fact  which
has been taken note of by the Government of India, as  could  be  seen  from
the Preamble to  the  circular  dated  28.09.2011  issued  by  the  Director
General of Shipping, Ministry of Shipping, Government  of  India  [which  is
also a  document  relied  upon  by  the  prosecution  and  supplied  to  the
accused], which runs as under:
“The menace of  piracy  continues  unabated  in  spite  of  increased  naval
presence in the Gulf of Aden  region  and  merchant  ships  being  asked  to
comply with  best  management  practices  which  includes  establishment  of
“Citadel”.

The Hon’ble Supreme Court has also taken note of  this,  as  could  be  seen
from the judgment in Republic of Italy through  Ambassador  and  others  vs.
Union of India and others reported in (2013) 4 SCC 721:

“The past decade has witnessed a sharp increase in acts  of  piracy  on  the
high seas off the coast of Somalia and even in the vicinity of  the  Minicoy
islands forming part of the Lakshadweep archipelago.”

The Government of India has recognized  the  fact  that  there  are  private
maritime security companies  that  provide  security  for  merchant  vessels
while they traverse through pirate infested locations. This is evident  from
the circular dated 28.09.2011 issued by the Director  General  of  Shipping,
which is referred to  above  and  is  being  strongly  relied  upon  by  the
prosecution.
Apart from taking judicial notice of the  aforesaid  facts,  this  Court  is
constrained to bear in mind the following two facts  that  are  admitted  by
the prosecution. Even according to the prosecution, M.V. Seaman  Guard  Ohio
is a ship, registered with Sierra  Leone  and  Registration  Certificate  is
part of the final report and is one of the documents that is relied upon  by
the prosecution.
It is not the case of the prosecution that M.V.  Seaman  Guard  Ohio  is  an
unregistered vessel or a pirate vessel.”

(67)    Then in Paras 14, 15 and 16, the  Single  Judge  took  note  of  the
issues relating to grant of registration of vessel, the nature  of  business
carried on by the owner of the vessel with the use of vessel and the  effect
of both the issues on the whole controversy involved in this case.
(68)    The Single Judge then proceeded to consider these  issue  on  merits
after taking into account  the  entries  in  log  book,  GPS  register,  the
registration certificate, the  statement  of  Captain  recorded  during  his
interrogation by  joint  investigation  team  where  he  had  explained  the
functioning of the guards posted in the ship, minutes of investigation  team
drawn during inspection of the vessel, and lastly, the names of Indian  crew
members.
(69)    The Single Judge appreciated the  aforesaid  material/documents  and
then after appreciation concluded that the vessel  in  question  is  a  ship
registered in Sierra Leone and is doing anti piracy business.
(70)    The concluding portion of Para 16 reads as under:-
      “………Therefore, I have no doubt in my mind that M.V. Seaman Guard  Ohio
is a ship registered in Sierra Leone and is into Antipiracy business.”

(71)    In Para 17, the Single Judge formulated the question as  to  whether
the Indian Arms Act applies to the prohibited  arms  on  the  Board  of  the
flagship.
      “The next line of enquiry is does the Indian Arms  Act  apply  to  the
presence of prohibited arms on board the Flag Ship M.V. Seaman Guard Ohio?”

(72)    This issue was then considered by the learned Judge in Paras  18  to
22 after referring to Section 4 (2) of IPC, the law laid down by this  Court
in Republic of Italy through Ambassador & Ors. Vs U.O.I.  &  Ors.  (2013)  4
SCC 721, and certain Articles of UNCLOS 1982 and  held  that  the  crew  and
guards of the vessel cannot be prosecuted for the offence  punishable  under
the Arms Act for possessing simpliciter prohibited  arms  on  board  of  the
vessel. This finding  is  recorded  in  Para  22  and  it  reads  as  under:

“……..Therefore, I hold that the crew and the guards  of  M.V.  Seaman  Guard
Ohio cannot be prosecuted for the offence under the Arms Act for  possession
simpliciter of prohibited arms on board their vessel.”

(73)    Then in Para 23, the  learned  Judge  observed  that  the  aforesaid
issue could be examined from yet another angle, namely, as  to  whether  the
vessel in question was in distress and secondly, whether it was  sailing  in
the innocent passage in the sea waters?
(74)    This issue was considered in  Paras  23  to  29  after  taking  into
account the entries in logbook, GPS register, contents of final report,  and
applying Section 4(1) of Territorial Waters,  Continental  Shelf,  Exclusive
Economic Zone and other Maritime Zone Act 1976, and Articles 18 (2)  and  19
of UNCLOS.
(75)    In Para 29, the Single Judge held that anchoring of the  vessel  was
within Indian territorial seawaters and that the vessel was sailing  out  of
necessity and hence their action is saved  by  the  principle  of  "innocent
passage" as defined in UN Conventions (UNCLOS). The Single Judge  held  that
none of the crew members can,  therefore,  be  prosecuted  for  any  of  the
offences  punishable  under  the  Arms  Act.  Para  29   reads   as   under:

“To sum up, I hold that the anchoring of M.V. Seaman Guard Ohio  within  our
territorial sea was out of necessity  and  their  action  is  saved  by  the
principle  of  ‘innocent  passage’  contemplated  by  Section  4(1)  of  the
Territorial Waters, Continental Shelf, Exclusive  Economic  Zone  and  Other
Maritime Zone Act, 1976 and Articles 18 and 19 of UNCLOS and therefore,  the
Crew and the Security Guards cannot be prosecuted for an offence  under  the
Arms Act.”

(76)    In Para 30, the Single Judge then dealt  with  the  question  as  to
whether the vessel (ship) violated clauses 7.3 and  7.5  of  Circular  dated
28.09.2011 issued by  Director  General  of  Shipping  and  then  went  into
factual matrix  of the whole controversy and came to the conclusion on  this
issue in the following words:
      “……..That apart, this Circular would apply  only  to  a  foreign  ship
visiting Indian port. In this case, I have given a  finding  that  the  said
Ship was drifting and out of necessity it had come into  the  Indian  waters
and had anchored at the Outer Port Limits  (OPL)  of  Tuticorin  Port.  This
Ship never had the intention of  visiting  the  Indian  Ports,  because  the
Captain was waiting for further instructions from its owners as to what  the
next move should be for getting provisions and fuel…...”

(77)    After recording the aforesaid finding, the learned judge  held  that
the ship did not violate the requirements adumbrated in  the  said  circular
which reads as under:-
“………Hence, I  am  of  the  opinion  that  the  Ship  has  not  violated  the
requirements adumbrated in the said Circular issued by the Director  General
of Shipping.”

(78)    The Single Judge then in Para 32 framed a question viz.
"Assuming for a moment that the  ship,  which  has  been  registered  as  an
“utility vessel” in Sierra Leone has changed its status,  can  the  captain,
crew members and others on  board  the  ship  be  prosecuted  in  India  for
violation of the registration granted by Sierra Leone?

(79)    The learned judge in the  next  sentence  held  "The  answer  is  an
obvious "No". He then referred  to  the  statement  of  Mr.  Senthil  Kumar,
Captain and after appreciating the  contents  of  the  statement  held  that
breach of registration of the vessel will  not  give  any  right  to  Indian
prosecuting authorities to prosecute the accused under Indian Laws but  such
right is available only to prosecuting agencies  to  prosecute  the  accused
in Sierra Leone.
(80)    The learned judge then proceeded to consider the next  issue  as  to
whether  any  case  for  breach  of  condition  of  the  Notification  dated
20.04.2012 issued under Section 457 of the Merchant Shipping Act, 1958  read
with the Rules framed thereunder is made out on the facts  set  out  in  the
charge sheet?
(81)    The learned Judge in Paras 33 and 34 dealt with this issue and  held
that in the light of findings already recorded  in  favour  of  the  accused
persons and on interpretation of Rules 3 and  4  of  the  Merchant  Shipping
Rules, no case for violation of any of the conditions is  made  out  against
the accused. In paragraph 34, the Single Judge held as under:-
“(b) The maximum  punishment  is  Rs.  1,000/  for  the  violation  of  this
Notification. Violation of this Notification cannot lead  to  the  inference
that they have committed offences under the Arms Act.”

(82)     The  learned  Judge  then  considered  the  last  issue   regarding
applicability of Section 45 (a) of the Arms Act  in  Para  36.  Without  any
discussion, the learned judge held that in  the  light  of  finding  already
recorded that the Indian authorities cannot  invoke  Arms  Act  against  the
accused, the provisions of Section 45 (a) of the Arms  Act,  in  any  event,
will otherwise protect the accused, i.e., crew members  and  the  guards  on
the vessel from being prosecuted, under the Arms Act.
(83)    The learned Judge then in Paras 37 and 38 held that in the light  of
findings already recorded, no case is made out against any  of  the  accused
to prosecute them  for  commission  of  any  offence  under  the  Arms  Act.
However, the learned Judge went on to hold against the two accused that  A-3
and A-38 are liable to be prosecuted for commission of  offences  punishable
under the Control Order, 2005 read with  Section  7  (1)  (a)  (ii)  of  the
Essential Commodities Act for purchase of fuel which  was  alleged  to  have
been purchased in violation of the Control Order.  While  recording  finding
on this issue, the learned Judge referred to Section 81 of the IPC.
(84)    We have purposefully mentioned supra in detail the various  findings
recorded by the Single Judge only with a view to show the approach  and  the
manner in which the learned Judge decided the case  and  eventually  allowed
it in part in favour of the accused.
(85)    The question as to how, in what  manner  and  to  what  extent,  the
inherent powers of the  High  Court  under  Section  482  of  the  Code  are
exercised  for  quashing  the  registration   of   FIR/final   report/charge
sheet/complaint etc.  are  no  more  res  integra  and  settled  by  several
decisions of this Court.
(86)    One leading case on this question is Bhajan Lal’s case  (supra)  and
the other is S.B.Johari’s case (supra) apart from many others.
87)    So far as the case of Bhajan  Lal  (supra)  is  concerned,  following
proposition of law is laid down:

“102. In  the  backdrop  of  the  interpretation  of  the  various  relevant
provisions of the Code under Chapter  XIV  and  of  the  principles  of  law
enunciated by this Court in a series of decisions relating to  the  exercise
of the extraordinary power under Article 226 or the  inherent  powers  under
Section 482 of the Code which we have extracted  and  reproduced  above,  we
give the following categories of cases by way of illustration  wherein  such
power could be exercised either to prevent  abuse  of  the  process  of  any
court or otherwise to secure the ends of  justice,  though  it  may  not  be
possible  to  lay  down  any  precise,  clearly  defined  and   sufficiently
channelised and inflexible guidelines or  rigid  formulae  and  to  give  an
exhaustive list of myriad kinds  of  cases  wherein  such  power  should  be
exercised.
(1) Where the allegations made  in  the  first  information  report  or  the
complaint, even if they are taken at their face value and accepted in  their
entirety do not prima facie constitute  any  offence  or  make  out  a  case
against the accused.
(2) Where  the  allegations  in  the  first  information  report  and  other
materials, if any,  accompanying  the  FIR  do  not  disclose  a  cognizable
offence, justifying  an  investigation  by  police  officers  under  Section
156(1) of the Code except under an order of a Magistrate within the  purview
of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR  or  complaint  and
the  evidence  collected  in  support  of  the  same  do  not  disclose  the
commission of any offence and make out a case against the accused.
(4) Where, the allegations  in  the  FIR  do  not  constitute  a  cognizable
offence but constitute only a non-cognizable offence,  no  investigation  is
permitted  by  a  police  officer  without  an  order  of  a  Magistrate  as
contemplated under Section 155(2) of the Code.
[pic](5) Where the allegations made in the FIR or complaint  are  so  absurd
and inherently improbable on the basis of which no prudent person  can  ever
reach a just conclusion that  there  is  sufficient  ground  for  proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any of  the  provisions
of the Code or the concerned Act  (under  which  a  criminal  proceeding  is
instituted) to the institution and continuance  of  the  proceedings  and/or
where there is a specific provision  in  the  Code  or  the  concerned  Act,
providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal  proceeding  is  manifestly  attended  with  mala  fide
and/or where the proceeding  is  maliciously  instituted  with  an  ulterior
motive for wreaking vengeance on the accused and with a view  to  spite  him
due to private and personal grudge.
103. We also give a note  of  caution  to  the  effect  that  the  power  of
quashing a criminal proceeding should be exercised very sparingly  and  with
circumspection and that too in the rarest of  rare  cases;  that  the  court
will not be justified in embarking upon an enquiry as to the reliability  or
genuineness or  otherwise  of  the  allegations  made  in  the  FIR  or  the
complaint and that the extraordinary or inherent powers  do  not  confer  an
arbitrary jurisdiction on  the  court  to  act  according  to  its  whim  or
caprice.”

(88)     As  far  as  S.B.  Johari  (Supra)  case  is  concerned,  following
proposition of law is laid down:

“4. In our view, it is apparent that the entire approach of the  High  Court
is illegal and erroneous. From the reasons recorded by the  High  Court,  it
appears that instead of considering the prima facie  case,  the  High  Court
has appreciated and weighed the  materials  on  record  for  coming  to  the
conclusion that charge against the respondents could not have  been  framed.
It is settled law that at the stage of framing the charge, the court has  to
prima facie consider whether  there  is  sufficient  ground  for  proceeding
against the accused. The court is not required to  appreciate  the  evidence
and arrive at the conclusion that the materials produced are  sufficient  or
not for convicting the accused. If the  court  is  satisfied  that  a  prima
facie case is made out for proceeding  further  then  a  charge  has  to  be
framed. The charge can be quashed  if  the  evidence  which  the  prosecutor
proposes to adduce to  prove  the  guilt  of  the  accused,  even  if  fully
accepted before  it  is  challenged  by  cross-examination  or  rebutted  by
defence evidence, if  any,  cannot  show  that  the  accused  committed  the
particular offence. In such case, there would be no  sufficient  ground  for
proceeding with  the  trial.  In  Niranjan  Singh  Karam  Singh  Punjabi  v.
Jitendra  Bhimraj  Bijjayya,  (1990)  4  SCC  76,  after   considering   the
provisions of Sections 227  and  228  CrPC,  the  Court  posed  a  question,
whether at the stage of framing the charge, the trial court  should  marshal
the materials on the record of the case as he would do on the conclusion  of
the trial. The Court held that at the stage of framing  the  charge  inquiry
must necessarily be limited to deciding if  the  facts  emerging  from  such
materials constitute the  [pic]offence  with  which  the  accused  could  be
charged. The court may peruse the records for that limited purpose,  but  it
is not required to  marshal  it  with  a  view  to  decide  the  reliability
thereof. The Court referred to  earlier  decisions  in  State  of  Bihar  v.
Ramesh  Singh,  (1977)  4  SCC  39,   Union  of  India  v.  Prafulla   Kumar
Samal,(1979) 3 SCC 4 and Supdt. & Remembrancer of  Legal  Affairs,  W.B.  v.
Anil Kumar Bhunja,(1979) 4 SCC 274 and held thus: (SCC p. 85, para 7)

“From the above discussion it seems well settled that at the  Sections  227-
228 stage the court is required to evaluate the material  and  documents  on
record with a view to finding out if the facts emerging therefrom  taken  at
their face value disclose the existence of all the ingredients  constituting
the alleged offence. The  court  may  for  this  limited  purpose  sift  the
evidence as it cannot be expected even at the initial stage  to  accept  all
that the prosecution states as gospel truth even if it is opposed to  common
sense or the broad probabilities of the case.”
(emphasis supplied)
5…………………………………………………………..
6. In  our  view  the  aforesaid  exercise  of  appreciating  the  materials
produced by the prosecution at the stage of framing of the charge is  wholly
unjustified. The entire approach of the High Court appears to be as  if  the
Court was deciding the  case  as  to  whether  the  accused  are  guilty  or
not………………..”

(89)    Keeping the aforementioned principles of law in  mind  and  applying
the same to the facts of the case in hand, we have  no  hesitation  to  hold
that the High Court erred in allowing both the criminal cases filed  by  the
accused  persons  thereby  erred  in  quashing  the  charge  sheet  at   the
threshold.
(90)    In our considered  opinion,  both  the  cases  out  of  which  these
appeals arise, deserve to be  dismissed  thereby  enabling  the  prosecuting
agency to prove the charges against  the  accused  persons  in  a  trial  on
merits in accordance with law. This we say for the following reasons.
(91)    It is apparent from mere reading of  the  impugned  order  that  the
entire approach of the High Court while deciding the  petition  was  illegal
and erroneous. It looks so apparent that instead of  considering  the  prima
facie case, the High Court appreciated and weighed the materials  on  record
for coming to the conclusion that the charge sheet against  the  respondents
could not have been filed and if filed no charges  could  have  been  framed
against the respondents on the  basis  of  such  charge  sheet,  for  facing
trial.
(92)    As rightly argued by the learned senior counsel  for  the  appellant
(State), the Single Judge while deciding the matters virtually acted  as  an
appellate Court as if he was hearing appeals arising out of the final  order
and proceeded to examine each and every issue mentioned in the charge  sheet
by appreciating the material on record and applying the relevant  provisions
of  various  Acts,  Rules   and   international   treaties   governing   the
controversy.
(93)    This approach of  the  High  Court  while  hearing  the  case  under
section 482 of the Code, in our considered  view,  was  wholly  unwarranted,
illegal and thus cannot be upheld. Having rightly  observed  by  the  Single
Judge in the beginning that he cannot  cross  “barrier”  while  hearing  the
petition under Section 482 yet committed an error by crossing the barrier.
(94)    As noted above,  six  reasons  given  by  the  High  Court,  in  our
opinion, were not the reasons which  could  be  made  basis  to  invoke  the
inherent jurisdiction of the High  Court.  For  quashing  the  charge-sheet,
those six factual reasons had nothing to do with  the  jurisdiction  of  the
court while entertaining the  charge  sheet.  Apart  from  the  fact  as  to
whether such reasons were relevant or not, the fact remained  that  none  of
them were of any avail  unless  each  reason  was  proved  by  the  evidence
adduced by both parties during trial.
(95)     It  cannot  be  disputed  that  prosecuting  agency  had  collected
material during investigation to  enable  the  Court  to  frame  appropriate
charges for commission of the offences punishable under  the  Arms  Act  and
such material was capable of being proved in  evidence  in  accordance  with
law to enable the Trial Court to reach any conclusion as to whether  a  case
of conviction or acquittal is made out or not?
(96)    The very fact  that  huge  quantity  of  arms  and  ammunition  were
recovered from the possession and control  of  the  crew  members  from  the
vessel and further during investigation, the crew  members  were  unable  to
satisfy their legal possession over such arms/ammunition with  them  by  not
being able to produce any evidence such as licenses,  certificates  etc.  it
was sufficient  to  attract  the  provisions  of  Arms  Act  for  initiating
prosecution of the accused for commission of the offences  punishable  under
the  Arms  Act,  namely,  for   possessing   unlicensed   and   unauthorized
arms/ammunition on the vessel.
(97)    The questions as to whether the vessel  in  question  was  found  in
Indian sea waters, or outside Indian territory, whether the  vessel  was  in
distress and if so, for what reasons, what steps  were  taken  by  the  crew
members on the vessel to come out of the distress call given by them to  the
Indian authorities at Indian port and whether steps allegedly taken in  that
behalf were in conformity with the relevant clauses of UNCLOS  which  govern
the subject, whether the accused persons were having any valid licenses  and
certificates issued by statutory authorities under the  applicable  laws  so
as to enable them  to  possess  and  carry  with  them  the  arms/ammunition
including prohibited categories of arms/ammunition on the vessel,  what  was
the nature of business in which the vessel was engaged and whether owner  of
the vessel  was having a license to do that business which enabled  them  to
possess and carry such arms/ammunition  in  huge  quantity,  why  amount  of
40476 US dollars  (Rs. 20 lakhs in Indian currency )  was  credited  by  the
owner of the vessel (A-1 & A-2) from US to  the  accounts  of  some  accused
persons in their accounts in  India  (HDFC  Bank,  Chennai),   whether  such
amount was used for purchase of diesel which was recovered from the deck  of
the vessel or it was used for doing some other illegal activity etc.
(98)    These were some of the material questions, which had a bearing  over
the issues involved in the case. Admittedly, these factual  questions  could
be answered one way or other on the basis of evidence to be adduced  by  the
parties in the trial but not otherwise.
(99)    In other words, none of the aforementioned  questions  were  capable
of being answered without the aid of evidence to be adduced by the  parties,
by mere reading of FIR, Final report, charge sheet, for the  first  time  by
the High Court in exercise of  its  inherent  jurisdiction.  Similarly,  the
High Court had no jurisdiction to appreciate the materials produced like  an
appellate court while hearing the petition under Section  482  of  the  Code
or/and Revision Petition under Section 397 abid.
(100)    As rightly argued by the learned senior counsel for the  appellant,
the law laid down by this Court  in  S.B.  Johari's  case  (supra)  squarely
applies to the facts of the case in hand in favour of the State.
(101)    S.B. Johari's case (supra) was also a case  where  the  High  Court
had quashed the charge at the instance of accused  persons  in  exercise  of
its  inherent  jurisdiction  by  appreciating  the  material  filed  by  the
prosecution along with charge-sheet. The High Court therein  had  held  that
no case was made out on the basis of the contents of the  charge  sheet  and
the material filed in support thereof as in the opinion of the  High  Court,
it was insufficient to frame  the  charge  against  the  accused  for  their
prosecution for commission of offence punishable under Section  5(1)(d)  and
(2) of the Prevention  of  Corruption  Act.  The  accused  were  accordingly
discharged by the High Court without compelling them to face  the  trial  on
merits.
(102)     In an appeal filed by the State against  the  order  of  the  High
Court, this Court allowed the State's appeal, set aside  the  order  of  the
High Court and upheld the charge sheet and the charges which were framed  by
the trial court and laid down the law which we have reproduced  in  para  88
above.
(103)    Coming back to the facts of this case,  the  High  Court  committed
the same error which was committed by the High Court in S.B.  Johari's  case
(supra) because in this case also the High Court went into the questions  of
fact, appreciated the materials produced in support of charge  sheet,  drawn
inference on reading the statements of the accused,  and  applied  the  law,
which according to the High Court, had application to the facts of the  case
and then came to a conclusion that no prima facie case  had  been  made  out
against any of the accused for their prosecution under the  Arms  Act.  This
approach of the High Court, in our considered view while  deciding  petition
under Section 482 of the Code was wholly illegal and erroneous.
(104)  In our considered opinion,  the  High  Court  committed  yet  another
error when it recorded the finding  that  provisions  of  Arms  Act  is  not
applicable to  the  case  in  hand  and  in  any  event  are  otherwise  not
applicable by virtue of Section 45(a) and hence no  accused  person  can  be
prosecuted for any of the offences  punishable  under  the  Arms  Act.  This
finding, in our  considered  view,  is  also  not  legally  sustainable  and
deserves to be set aside for more than one reason.
(105)    In the first place, this finding could not have  been  recorded  by
the High Court either way till the  prosecution  and  the  defence  had  led
their full evidence. Secondly, it could  be  done  only  in  the  trial  and
depending upon the decision rendered by the Trial Court on this  issue,  the
High Court in an appeal arising out of final order of the Trial Court  could
have examined this issue in its appellate jurisdiction at  the  instance  of
accused or State, as the case may be. Thirdly, interpretation  made  by  the
High Court of Section 45(a) is wholly unsustainable.
(106)    This takes us to the next question as to  whether  the  High  Court
was justified in properly interpreting Section 45(a) of the  Arms  Act?   In
other words, the question that needs to be examined  is  what  is  the  true
interpretation of Section 45 of the Arms Act and, in particular, clause  (a)
of Section 45.
(107)    Section 45 of the Arms Act sets out certain type of cases to  which
the provisions of  Arms  Act  are  not  made  applicable.  These  cases  are
specified in clause (a) to clause (d) of Section 45.   In  other  words,  if
the case of the accused falls in any of the clauses of Section 45 and he  is
able to satisfy the requirement of such clause then such accused  cannot  be
prosecuted for commission of any offence punishable under the Arms Act.   He
is then held exempted from the applicability of the  Arms  Act.  Section  45
(a) with which we are concerned reads as under:
“45. Act not to apply in certain cases. –
Nothing in this Act shall apply to –
 Arms or ammunition on board any    sea-going vessel  or  any  aircraft  and
forming part of the  ordinary  armament  or  equipment  of  such  vessel  or
aircraft.”


(108)     Mere perusal of the aforequoted section would go to show  that  it
applies only to those arms/ ammunition stored  on  board  of  any  sea-going
vessel, which forms part of the “ordinary  armament  or  equipment  of  such
vessel”.  In other words, in case if the accused seeks to place reliance  on
Section 45(a) to avoid his  prosecution  under  the  Arms  Act  then  it  is
necessary for him to prove that arms/ammunition stored on  the  vessel  were
"forming part of the  ordinary armament or equipment" of the vessel .
(109)    The qualifying words to seek exemption are  "forming  part  of  the
ordinary armament or equipment of the vessel."
(110)     The question as  to  whether  arms/ammunition  form  part  of  the
ordinary armament or equipment of any vessel is  a  question  of  fact.  The
accused has to, therefore, satisfy that the arms/ammunition seized from  the
vessel are, in fact, part of the ordinary armament  or  equipment  of  their
vessel and hence were exempted from the operation of the Arms Act by  virtue
of Section 45 (a) ibid.
(111)  The object of Section 45(a) is to give exemption  from  applicability
of the Arms Act to those arms/ammunition, which form part  of  any  ordinary
armament or equipment of the vessel and not to all  arms/ammunition  on  the
vessel.  It cannot, therefore, be  construed  to  mean  that  Section  45(a)
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.
(112)     Now coming to the  facts  of  the  case  in  hand,  we  find  that
firstly, there was no evidence adduced by the accused  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 within the meaning of Section 45(a)  of  the  Arms
Act.  Secondly, this stage had in fact not reached and in the meantime,  the
High Court interfered with causing prejudice to the rights  of  the  parties
and especially to the prosecution, who were unable to prove their  case  and
lastly, in the absence of any finding on  this  issue,  the  impugned  order
cannot be sustained.
(113)     We are also of the considered view  that  the  issue  involved  in
this case should have been tried keeping in view the law laid down  by  this
Court in the case of Gunwantlal  (supra)  along  with  several  other  legal
provisions of Acts/Rules and International Treaties.
(114)  In the case of Gunwantlal (supra), while  upholding  the  framing  of
charge for an offence punishable under Section 25(a) of the Arms  Act,  this
Court remanded the case to the Sessions Court for  trial.   While  examining
this issue, this Court interpreted   the  expression  “possession”  used  in
Section 25(a) of the Act.  Justice P. Jaganmohan  Reddy,  speaking  for  the
Bench held as under:
“4. The main question in this case is whether on the facts alleged  if  true
and at this stage nothing can be said about the truth or otherwise  of  that
allegation, the appellant can be said to be in possession  of  the  revolver
for being charged with an offence under Section 25(a) of  the  Act.  Section
25(a) insofar as it is relevant states:
“whoever  acquires,  has  in  his  possession  or  carries  any  firearm  or
ammunition  in  contravention  of  Section  3…  shall  be  punishable   with
imprisonment for a term which may extend to three years,  or  with  fine  or
with both”.

5. What is meant by possession in the context of this section?  Is  it  that
the person charged should be shown to be in physical  possession  or  is  it
sufficient for the purposes of  that  provision  that  he  has  constructive
possession of any firearm or ammunition in contravention of Section 3  which
prohibits him to be  in  such  possession  without  a  licence.  It  may  be
mentioned  that  under  Section  19  of  the  Arms  Act,  1878,  an  offence
corresponding to Section 25(1)(a) is committed if a person  had  in  his  or
under his control any arms or ammunition in  contravention  of  Sections  14
and 15 of that Act. The word  “control”  under  Section  25(1)(a)  has  been
omitted. Does this deletion amount to the Legislature confining the  offence
only to the case of a person who has physical possession  or  does  it  mean
that a person will be considered to be  in  possession  of  a  firearm  over
which he has constructive possession or over which he  exercises  the  power
to obtain possession thereof when he so intends? If the meaning to be  given
to the word “possession” is that it should be a  physical  possession  only,
then certainly the charge as framed on the facts  of  the  prosecution  case
will not be sustainable  but  if  the  meaning  to  be  given  to  the  word
“possession” is wider than that of actual or physical possession then it  is
possible, if the evidence produced by  the  prosecution  is  such  as  would
sustain a finding, that he had  constructive  possession  on  September  17,
1966, when he  handed  it  over  to  Miroo  and  Miroo  handed  it  over  to
Chhaganlal because if it was  not  seized  from  Chhaganlal,  the  appellant
could have at any time got back the  physical  possession  of  the  revolver
through Miroo. The possession of a firearm under the Arms Act  in  our  view
must have, firstly  the  element  of  consciousness  or  knowledge  of  that
possession in the person charged with such offence  and  secondly  where  he
has not the actual physical  possession,  he  has  nonetheless  a  power  or
control over that weapon so that his possession  thereon  continues  despite
physical possession being in someone else. If this  were  not  so,  then  an
owner of a house who leaves an unlicensed gun  in  that  house  but  is  not
present when it was recovered by the police can plead that  he  was  not  in
possession of it even though he had himself consciously kept it  there  when
he went out. Similarly, if he goes out of the [pic]house during the day  and
in the meantime some one conceals a pistol  in  his  house  and  during  his
absence, the police arrives and discovers the pistol, he cannot  be  charged
with the offence unless it can be shown that he had knowledge of the  weapon
being placed in his house. And yet again if a gun or  firearm  is  given  to
his servant in the house to clean it,  though  the  physical  possession  is
with him nonetheless possession of  it  will  be  that  of  the  owner.  The
concept of possession is not easy to comprehend as writers of  Jurisprudence
have had occasions to point out. In some cases  under  Section  19(1)(f)  of
the Arms Act, 1878 it  has  been  held  that  the  word  “possession”  means
exclusive possession and the word  “control”  means  effective  control  but
this does not solve the problem. As we said earlier, the first  precondition
for  an  offence  under  Section  25(1)(a)  is  the  element  of  intention,
consciousness or knowledge with which a person possessed the firearm  before
it can be said to constitute an offence and secondly  that  possession  need
not be physical  possession  but  can  be  constructive,  having  power  and
control over the gun, while the person to whom physical possession is  given
holds it subject to that power and control.  In  any  disputed  question  of
possession, specific facts admitted  or  proved  will  alone  establish  the
existence of the de facto relation of control or the dominion of the  person
over it necessary to determine  whether  that  person  was  or  was  not  in
possession of the thing in question. In this view it is  difficult  at  this
stage to postulate as to what the evidence will be and we do  not  therefore
venture to speculate thereon. In the view we have taken, if  the  possession
of the appellant includes the constructive  possession  of  the  firearm  in
question then even though he had parted  with  physical  possession  on  the
date when it  was  recovered,  he  will  nonetheless  be  deemed  to  be  in
possession of that firearm. If so, the charge that he was in  possession  of
the revolver on  September  17,  1966,  does  not  suffer  from  any  defect
particularly when he is definitely informed  in  that  charge  that  he  had
control over that revolver. It is  also  apparent  that  the  words  “on  or
before” were intended to bring home to the accused that he was not  only  in
constructive possession of it on September 17, 1966,  but  that  he  was  in
actual physical possession of it prior to that  date  when  he  gave  it  to
Miroo. It is submitted, however, that the word “on or  before”  might  cause
embarrassment and prejudice to the defence of the accused  because  he  will
not be in a position to  know  what  the  prosecution  actually  intends  to
allege. From a reference of Form  XXVIII  of  Schedule  5  of  the  Code  of
Criminal Procedure, the mode of charging a person is that he “on or  about”…
did the act complained of. In view of the forms of the charge given  in  the
Schedule to the Code, we think that it would be fair  to  the  appellant  if
the charge is amended to read ‘on or about’ instead of ‘on or before’  which
we accordingly order.”

(115)   In our considered opinion, therefore, this  was  a  case  where  the
High Court should have dismissed the revision filed  by  the  accused  under
Section 397 and also the petition filed under Section 482 of  the  Code  and
remanded the case to the Trial Court to proceed in the case  to  enable  the
prosecution to adduce evidence on merits in  support  of  the  charge  sheet
after framing of the charges and  also  allow  the  defence  to  lead  their
evidence so as to bring the case to its  logical  conclusion  in  accordance
with law.  In other words, this was not a case  falling  in  a  category  of
rare case requiring interference of the High Court by invoking powers  under
Sections 397 or/and Section 482 of the Code as laid  down  in  the  case  of
Bhajan Lal (supra).
(116)  Learned counsel  for  the  respondents-accused,  however,  vehemently
contended that this is not a fit case where an  interference  under  Article
136 of the Constitution is called for inasmuch as when the  High  Court  has
extensively dealt with all the issues and given reasons.  It was also  urged
that all the accused (some Indian nationals and some foreign nationals)  are
innocent having no connection with the alleged  seizure  of  arms/ammunition
from the vessel. We find no merit in this submission at this stage.
(117)     It is a settled principle of law that if a law laid down  by  this
Court was not applied properly by the High Court then such order has  to  be
set aside.  In this case, we find that the law laid down by  this  Court  in
Bhajan Lal (supra) and S.B Johari's case (supra) was not applied properly.
(118)     In the light of foregoing discussion, we cannot  concur  with  the
reasoning and the conclusion arrived at by the High Court. As a result,  the
appeals succeed and are accordingly allowed. Impugned  order  is  set  aside
resulting in dismissal of two  cases  filed  by  the  respondents  (accused)
before the High Court out of which these two appeals arise.
(119)   The Trial Court, which has seized of the case  out  of  which  these
matters arise, is directed to proceed with the case and decide the  same  on
merits in accordance with law. Let the  trial  be  completed  by  the  Court
concerned within six months from  the  date  of  receipt  of  copy  of  this
judgment.  Copy of this judgment be filed in  the  Trial  Court  within  two
weeks.
(120)     Before parting with the case, we consider it appropriate  to  make
it clear that we have not decided any issue arising in these appeals on  its
merits and nor has made any observation on merits of controversy  except  to
interpret Section 45 (a) of the Arms Act to enable the  concerned  competent
Trial Court to decide the rights of the parties  accordingly  in  accordance
with law while deciding the case.
(121)     The Trial Court (competent Court)  would,  therefore,  decide  the
case  strictly  in  accordance  with  law  uninfluenced  by   any   of   our
observations and of the High Court.
            …….….……............................J.
                            [VIKRAMAJIT SEN]

                 …………..................................J.
                            [ABHAY MANOHAR SAPRE]
      New Delhi;
      July 01, 2015.
ITEM NO.1A               COURT NO.12               SECTION IIA
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

       Criminal Appeal No. 836 of 2015 @ SLP (Crl.)  No(s).  7082/2014

THE STATE REP. BY INSPECTOR OF POLICE Q BRANCH
CID  THOOTHUKUDI                                    Appellant(s)

                                VERSUS

MARIYA ANTON VIJAY                                 Respondent(s)
                                    WITH

          Criminal Appeal NO. 837 of 2015 @ SLP (Crl) No. 7099/2014

Date : 01/07/2015      These appeals were called on for pronouncement
            of judgment today.

For Appellant(s) Mr. K. Ramamoorthy, Sr. Adv.
                       Mr. Subramonium Prasad, Sr. Adv. AAG
                       Mr. M. Yogesh Kanna, AOR
                       Mr. Jayant Patel, Adv.
                       Ms. Vanita Chandrakant Giri, Adv.


For Respondent(s)      Ms. Rohini Musa, AOR

                       Mr. Sajith, P. AOR

                       Mr. P.B. Suresh, Adv.
                       Mr. Vipin Nair, Adv.
                       Mr. Prithu Garg, Adv.

      Hon'ble Mr. Justice Abhay  Manohar  Sapre  pronounced  the  reportable
judgment of the Bench comprising Hon'ble Mr. Justice Vikramajit Sen and  His
Lordship.
      Leave granted.
      The appeals succeed and  are  accordingly  allowed  in  terms  of  the
signed reportable judgment.


      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.