LAW FOR ALL

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)

The language used as a means of communication between the confessing accused and the recording officer being Hindi or Hindustani, such recording of confession in Hindi language is completely in conformity with the requirement of the Rule. The conclusion drawn by the trial court that Ghulam Nabi being Pakistani national his language must be Urdu and therefore the recording of the confession in a language other than Urdu, must be held to be not in conformity, is wrong. Nothing has been placed on record that the confessing accused did not understand the line of questioning or that he was not made to understand the contents of the confession after the recording was complete. In our view the assessment made by the trial court in this behalf is completely incorrect and against the record.We find no infirmity in the recording of confession by PW1 S.K. Bhatnagar. The confession of accused Ghulam Nabi was recorded in keeping with the guidelines issued by this Court and was in accordance with the statutory requirement. Holding the confession to be admissible, we have gone through the contents of the confession which clearly admitted the guilt of the confessing accused and his involvement right from the hatching of conspiracy to the execution thereof. The confessing accused had spoken about various stages since the conspiracy was hatched and how the confessing accused had helped in transporting the explosive material from across the border and then placed it in the pits, dug inside the stadium and on the main road outside the stadium. The consequential explosion of the bombs which was timed with the celebrations on account of Republic Day was definitely designed to disrupt the celebrations and terrorize the people in general and those who had gathered at the time of celebration in particular. We, therefore, hold that from the confession, the involvement of accused Ghulam Nabi in entering into the conspiracy, execution and facilitation thereof is completely made out. As held by this Court, the confession of an accused is a substantive piece of evidence and his conviction can be founded on such confession itself. We, therefore, hold Ghulam Nabi Guide to be guilty of the offences with which he was charged. However, as regards the other accused, namely, Wasim Ahmed Malik, apart from the confession of Ghulam Nabi Guide that is to say the confession of co-accused, nothing has been placed on record which could lend corroboration as regards his role in the conspiracy and execution thereof. We have minutely considered the material but could not locate anything which could afford such corroboration. Going by the rule of prudence as highlighted by this Court in the case of State vs. Nalini (supra), we do not find any justification to reverse the finding of acquittal as recorded in respect of said Wasim Ahmed Malik. We, therefore, affirm the acquittal of Wasim Ahmed Malik as recorded by the trial court in respect of the offences with which he was charged.Consequently, this appeal is partly allowed. The acquittal of Wasim Ahmed Malik is confirmed. However, the order of acquittal in respect of Ghulam Nabi is set aside and said accused Ghulam Nabi Guide is convicted of the offences with which he was charged. This being an appeal against the decision of acquittal rendered by the trial court, we deem it appropriate to issue notice to said Ghulam Nabi Guide on the issue of sentence. The authorities are directed to produce said Ghulam Nabi Guide before this Court so that appropriate opportunity to address this Court on the sentence to be awarded to him, can be afforded to him.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1743/2009

State of J&K …. Appellant

Versus

Wasim Ahmed Malik @ Hamid and another. …. Respondents.

J U D G M E N T

Uday Umesh Lalit, J.

1. This Appeal under section 19 of the Terrorist and Disruptive
Activities (Prevention) Act 1987 (hereinafter referred to as the Act)
challenges the judgment and order dated 02.03.2009 passed by the third
Additional Sessions Judge i.e. the Designated Court under the Act in
File No. 26/Challan, acquitting the respondents of the offences under
sections 3 and 4 of the Act, section 120-B read with sections 302, 307
and 34 of Ranbir Penal Code and sections 4 and 5 of the Explosives
Substances Act, 1908 arising out of FIR No. 12 of 1995.

2. On the occasion of celebration of Republic Day on 26.01.1995 at
about 10:20 a.m. in Maulana Azad Memorial Stadium, Jammu, General KV
Krishna Rao, Governor of Jammu and Kashmir was addressing a huge
gathering of about 40,000 people including high dignitaries, VIPs,
Senior Officers of the Govt., leaders of political parties and
respectable citizens when three powerful bomb explosions took place at
the site of public address system, near the dais and on the main road,
outside the stadium resulting in killing of eight persons, and in
causing grievous injuries to eighteen persons and disruption of the
celebrations. Soon after the incident FIR No. 12 of 1995 dated
26.01.1995 of PS Nowbad, Jammu (J&K) relating to said bomb blasts was
registered. At the request of the Government of Jammu and Kashmir, the
investigation was transferred to Central Bureau of Investigation
(C.B.I.) vide notification dated 31.01.1995 and Regular Case No.
RC1(5)/95-SIUV was registered in CBI on 31.01.1995.

3. After investigation was taken over by CBI, one Mohd. Irfan was
arrested on 07.04.1995. On 09.04.1995 he made disclosure statements
leading to certain recoveries. On 24.04.1995 said Mohd. Irfan made a
confessional statement which was recorded by PW2 Sharad Kumar, S.P.
CBI, under section 15 of the Act, inter alia, to the following effect:
a) Accused Mohd. Irfan along with Maj Tariq of ISI,
Pakistan, Ahmed Hassan, Commander of HM, Muzaffarabad, Mebhoob-
ul-Haq, Commander of HM, Sialkot, Amir-ul-Haq, Naib Commander,
HM and Zia Kashmiri and others unknown had assembled in the
office of Jamait-e-Islami, Model Town, Sialkot, Pakistan on
26.12.1994 and hatched a conspiracy to kill Governor, J&K,
Senior officers of the Government and other persons with a view
to strike terror in Jammu city on the occasion of Republic Day
Celebrations. In furtherance of the said conspiracy, accused
Mohd. Irfan, Menboob-ul-Haq and Ahmed Hassan visited the office
of ISI situated near village Langaryali, Sialkot Cantt. Pakistan
on 26.12.1994 and held a meeting with Major Tariq, Major
Ibrahim, Captain Farhan, Subedar Anwar of ISI, Pakistan and
Wasim Ahmed @ Hamid S/o Jallaluddin Malik R/o Asthan Mohalla,
Kishtawar, J&K and hatched the plan. In order to achieve the
object of the aforesaid criminal conspiracy, they decided to
carry two pre-set time bombs across the border to Jammu for
planting the same, one near the dais and the other near the
pavilion of MAM Stadium Jammu and deputed Mohd. Irfan and Ghulam
Nabi for this task.

b) On 23.12.1994 in the ISI Office, Sialkot at 11:00 a.m.
Mohd. Irfan and Wasim Ahmed were imparted knowledge about the
bombs and their functioning and operations, which were to be
planted in the MAM Stadium. They were also issued instructions
to protect the bombs from water and to plant them in the Stadium
after the night would set in, to take two detonators for each
bomb, to carry the Khurpa for digging the pits, and not to leave
any clue of the planting of the bombs at the site. They were
also told that the bombs were pre set so to explode at the time
of the Republic Day function on 26.01.1995. Capt. Farhan gave
Rs. 3,000/- each to Mohd. Irfan and Wasim Ahmed and Rs. 2,000/-
to Ghulam Nabi in Indian Currency and also a sack to Mohd. Irfan
wherein he put his boots, trouser, khurpa and pistol. Major
Ibrahim provided one time bomb of 5 Kg each to Mohd. Irfan and
Wasim Ahmed duly wrapped in black polythene and green coloured
sacks. All of them left ISI Office, Sialkot and reached Check
Post Jhumian at about 10:00 p.m. on 28.12.1994. Subedar Anwar
and Mahboob-ul-Haq returned to Sialkot, while Mohd. Irfan, Wasim
Ahmed and Ghulam Nabi crossed the border and entered into Indian
Territory concealed the bombs and khurpa near River Tawi,
outside Jammu city.

c) On 30.12.1994 Mohd. Irfan, Wasim Ahmed and Ghulam Nabi
went to a park where Ghulam Nabi stayed behind while Mohd. Irfan
and Wasim Ahmed went to MAM Stadium where Wasim Ahmed pointed
out to Mohd. Irfan a place near the dais and also place inside
the fenced area of north Pavilion where bombs were to be
planted. On 30.12.1994 at about 7:45 p.m., Mohd. Irfan and Wasim
Ahmed took out two explosive devices and khurpa and left for MAM
Stadium leaving Ghulam Nabi there. Both carried one explosive
device each and entered into the stadium along with ‘khurpa’.
Inside the stadium, they connected detonators and batteries to
the device and planted two explosive devices; one near the dais
and other near the fenced area of the Northern Pavilion after
digging the pits for each bomb. After planting the bombs, they
filled both the pits with earth and made shoe marks thereon to
avoid suspicion. Thereafter, both left for Tawi Bridge. Mohd.
Irfan concealed the ‘khurpa’ in the bushes near Tawi Bridge.
Thereafter, both Mohd. Irfan and Wasim Ahmed contacted Ghulam
Nabi and all three reached Pakistani Check Post Jhumian after
crossing the international border from where they were taken to
the ISI Office Sialkot. Maj. Tariq, Maj. Ibrahim, Maj. Aamir,
Capt. Farhan praised Wasim Ahmed and Mohd. Irfan for
accomplishing the task. As desired by Captain Farhan, Subedar
Anwar paid Rs. 5,000/- to Mohd. Irfan for the work done by him.

d) On 03.01.1995 said Mohd. Irfan and Wasim Ahmed were again
deputed by Mahboob-Ul-Haq to plant one time bomb of 10 Kg. and
two bombs of 5 Kg. each outside MAM Stadium, Jammu and pursuant
thereto they dug a pit on the main road leading to that stadium
and put the bomb weighing 10 Kg. on 09.01.1995. The other two
bombs of 5 Kg. each could not be put because of rains, which
bombs were then concealed near Tawi River.

e) On 26.01.1995 Mohd. Irfan, Mahboob-ul-Haq, Aamir-ul-Haq,
Amzad and 2/3 other Kashmiri boys were present in the office of
Jamait-e-Islami, Sialkot. They had waited for the news of bomb
explosions, killing of VIPs and general public in Jammu. At
about 12 noon they received news about the explosions in MAM
Stadium, in which lot of persons had been killed and several
other injured. After the incident, Maj. Tariq, Capt. Farhan,
Subedar Anwar called Mohd. Irfan, Wasim Ahmed and Mahboob-ul-Haq
to ISI Office, Sialkot and praised them for planting the bombs
and declared that their mission had been successful even though
the Governor of J&K had providentially escaped. On 30.01.1995
Mohd. Irfan, Wasim Ahmed and Mahboob-ul-Haq visited office of
Jamai-e-Islami, Muzaffarabad and met Salauddin, Chief of the
Hizbul Mujahideen who declared that their mission was to spread
terrorism in J&K which got fulfilled with the bomb explosions in
MAM Stadium. Salauddin awarded one shield and Rs. 10,000/- each
to Mohd. Irfan and Wasim Ahmed.

4. After completion of investigation, charge sheet was filed on
28.09.1995 in the Court of the Special Judge, Designated TADA Court,
Jammu (J&K) u/s 120-B RPC r/w section 302, 34, 307 RPC, 4 and 5 of the
Explosives Substances Act and section 3(2), 4 and 6 of the Act. The
charge sheet was filed against Mohammad Irfan @ Anwar, a Pakistani
National and other absconding accused. While the matter was pending
before the Trial Court, Ghulam Nabi Guide was arrested by J&K police
on 25.10.1995. Upon CBI making an appropriate application, custody of
Ghulam Nabi Guide was granted to CBI on 04.12.1995. While in custody,
said Ghulam Nabi Guide made a confessional statement which was
recorded by PW1 S.K. Bhatnagar Superintendent of Police, CBI on
18.12.1995 u/s. 15 of the Act wherein he confessed about his
involvement as also that of Mohd. Irfan, Wasim Ahmed Malik @ Hamid,
Major Tariq, Major Ibrahim, Major Amir, Captain Farhan, Subedar Anwar
(all of ISI, Pakistan), Ahmed Hassan, Commander of HM, Sialkot, Amir-
ul-Haq, Naib Commander, HM Sialkot and Zia Kashmiri R/o Kupwara, J&K
in the criminal conspiracy culminating in the explosions at the MAM
Stadium, Jammu 26.01.1955. Supplementary charge sheet was therefore
filed against him. During the pendency of the trial, in a jailbreak
said Mohd. Irfan escaped from high security jail. While the trial was
pending and had reached the concluding stage, another accused named
Wasim Ahmed Malik, who was marked as absconding accused, was arrested
on 15.01.2009. Since according to the prosecution there was sufficient
evidence in the form of confessional statements of Mohd. Irfan and
Ghulam Nabi Guide, said Wasim Ahmed Malik was supplied with copies of
all the relevant material and produced before the Trial Court. Thus
only two accused i.e. Ghulam Nabi Guide and Wasim Ahmed Malik, present
respondents, were tried while the others remained absconding.

5. The evidence led by prosecution during the trial was to prove
following aspects, namely:-
a) That there were three bomb explosions on 26.01.1995 at
10:20 a.m. at the places in question, i.e. near the dais and at
the site of public address system in MAM Stadium and on the main
road outside the Stadium.
b) That at the time of such bomb explosions, large gathering
had assembled while the Governor was addressing on the occasion
of Republic Day Celebrations.
c) That it resulted in death of eight persons and caused
grievous injuries to eighteen persons and disruption of the
Celebrations.
d) That the act in question was a terrorist act, within the
meaning of the Act.
e) That it was an act of conspiracy hatched by the accused
being tried before the court and by the absconding accused and
f) That the involvement of the accused before the court was
completely made out.

6. Various witnesses were examined and material was produced by the
prosecution to establish its case. Since the aspects (a) to (d)
mentioned in the preceding paragraph were never challenged, we refrain
from dealing with evidence pertaining to said aspects (a) to (d).
Proceeding on the basis that it was a terrorist act, where bomb
explosions were caused with the idea of terrorizing people in general
and those who had assembled there at the gathering in particular,
which resulted in loss of life of eight persons and injured eighteen
persons, we confine the discussion as regards aspects (e) to (f) i.e.
the role of the accused in the act in question. The trial Court had
also confined itself to the question whether involvement of the
respondents had been made out or not.

7. In order to bring home the involvement of the respondents the
prosecution relied upon the confessions of Mohd. Irfan and Ghulam Nabi
recorded under section 15 of the Act. Apart from such confessions and
the statements of these accused leading to recovery of certain facts,
no direct evidence could be placed on record. The evidence principally
relied upon by the prosecution can be summarized as under:
A) While in custody, accused Mohd. Irfan upon being
interrogated, made three disclosure statements, “EXPW-BD/2, EXPW-
S/3 and EXPW-S/2”. The testimony of PW86 Harbhajan Singh,
Investigating Officer shows that pursuant to these disclosure
statements two khurpas were recovered and identification of the
shop from where a khurpa was purchased was also got done. Those
khurpas were identified in court. The factum of such disclosure
and consequential recovery was also supported by panch witnesses
PW23 S.K. Sudan and PW24 Gautam Goyal. PW67 Rajesh Kumar,
Inspector, CBI also testified to similar effect.
B) On 22.04.1995 another disclosure statement “EXPW-BR” was
made by accused Mohd. Irfan leading to the recovery of a bomb
vide Seizure Memo Ext.PW/BR/1. The evidence of PW86 Harbhajan
Singh, PW67 Rajesh Kumar and panch witness PW26 B.R. Saraf were
relied upon in that behalf.
C) On 22.04.1995 Mohd. Irfan expressed his desire to confess
and was produced before PW2 Sharad Kumar, Superintendent of
Police. PW2 Sharad Kumar gave warning to the accused that the
confession could be used against him and also gave him time to
reflect. The accused was again presented before the witness on
23.04.1995 on which date the confessional statement Ext.PW-SK-3
of accused Mohd. Irfan was recorded by PW2 Sharad Kumar. The
gist of the confession and the facts as disclosed therein are
dealt with earlier. The confession of Mohd. Irfan clearly stated
about the roles of the confessing accused as well as the co-
accused.
D) After the arrest of Ghulam Nabi Guide, his custody was
granted to CBI on 04.12.1995. He having expressed his desire to
make a confessional statement, said Ghulam Nabi Guide was
produced before PW1 S.K. Bhatnagar, Superintendent of Police,
CBI on 16.12.1995. The witness administered statutory warning
to the accused and also gave him time to rethink. The questions
were put to the accused which were replied by him and true
record thereof was made by the witness in Hindi. According to
the witness he had explained everything to the accused and after
recording of the statement, thumb impression of the accused was
taken on the statement. The accused was again produced before
the witness on 18.12.1995 and having expressed the desire to
make a confessional statement, his statement was recorded by the
witness. After recording of the statement, it was read over and
the accused was made to understand the statement whereafter
admitting the statement to be true the accused put his thumb
impression.
E) The confessing accused Ghulam Nabi Guide was produced in
the court of the Chief Judicial Magistrate, Jammu on 19.12.1995.
The confessional statement in original in a sealed cover was
also produced, for its onward submission to the Designated
Court, Jammu. The text of the letter was as under:
“Sir,
Kindly find enclosed herewith original statement (sealed)
of accused Ghulam Nabi Guide recorded under Section 15 TADA Act
in case RC. 1(S)/95/SIU.V for onward submission to the Hon’ble
Judge of Designated Court, Jammu. The accused has also been
brought.
Applicant
Sd/-
19.12.95
(S.K. Bhatnagar)
Supdt. Of Police, CBI,
SIC.II, New Delhi.”

F) On the same day, the Chief Judicial Magistrate, Jammu
passed the following order:
“Submitted in original to the Presiding Officer of
Designated Court under TADA. Sealed envelope is enclosed
herewith.” Sd/-
Chief Judicial Magistrate
JAMMU”

8. The trial court acquitted both the respondents of all the
charges leveled against them. The case of the prosecution as regards
explosion of bombs which resulted in the death of eight persons and
caused serious injuries to 18 persons was not disputed at all.
However, the trial court rejected the evidence regarding confessional
statement of Ghulam Nabi Guide on the ground that the confessional
statement was recorded in Hindi i.e. not in the language of the
accused. It observed that the safeguards provided in Rule 15 of the
Rules made under the Act were not adhered to and therefore, the
confessional statement of accused Ghulam Nabi Guide was required to be
discarded. The relevant observations of the trial court in this behalf
were as under:
“In the present case, the confessional statement has been
recorded in Hindi and not in the language of accused. PW
Habhajan Ram who is the Investigating Officer stated that he
cannot say whether accused Ghulam Nabi knows Hindi or not. In
any case, accused Ghulam Nabi being a Pakistan national, his
language cannot be Hindi. Even so, PW Sushil Kumar who is the
recording officer of the confessional statement of accused
Ghulam Nabi has stated that accused had given the statement in
Urdu and he had written the same in Hindi. No reason has been
given by the said witness as to why it was not practical to
record the confession of accused in Urdu. Even so, the record
does not show that Hindi is the language used by PW Sushil Kumar
for official purposes. Rather, the record would show that the
said witness Sushil Kumar uses English languages for official
purposes. This is apparent from the letter EXPW-SK/III written
by him to the CJM while forwarding the confession to the
Designated Court. And finally, the language of the Designated
Court is Urdu or English.”

9. The trial court further observed that as apart from such
confessional statement there was nothing else against said Ghulam Nabi
Guide, the accused was entitled to be acquitted. The other accused,
namely, Wasim Ahmed had not given any confessional statement and the
case against him completely depended upon the confessional statement
of co-accused Ghulam Nabi Guide. Consequently accused Wasim Ahmed was
also held entitled to be acquitted. The trial court thus acquitted
both the accused vide its judgment and order dated 02.03.2009, which
is challenged in the present appeal.
10. The record of the present appeal indicates that respondent Wasim
Ahmed Malik was duly served but chose not to engage any lawyer. It
was reported that respondent Ghulam Nabi Guide was residing in
Pakistan and was served through the concerned office of the Government
of India. However, no appearance was entered on behalf of Ghulam Nabi
Guide, though duly served. Consequently, Mr. Dushayant Parashar,
learned Advocate was requested to appear for respondent Ghulam Nabi
Guide under instructions from the Supreme Court Legal Services
Committee. Since there was no appearance for respondent Wasim Ahmed
Malik by order dt. 12.03.2015, Mr. Dushayant Parashar was requested by
this Court to represent said Wasim Ahmed Malik as amicus curiae. We
must record our appreciation for the assistance rendered by Mr.
Dushyant Parashar.

11. Appearing in support of the appeal Mr. P.K. Dey, learned
Advocate submitted:
(a) Confession of accused under Section 15 of the Act is a
substantive piece of evidence and can form the foundation for
conviction of an accused for the offences punishable under the Act.
(b) Such confession, subject to the conditions stipulated in Section
15 of the Act itself, can also be read against the co-accused and form
basis for his conviction.
(c) The confession recorded by PW1 S.K. Bhatnagar itself disclosed
that the entire statement was read over to the confessing accused and
only thereafter thumb impression of the confessing accused was taken
under the statement. Since the language used during such conversation
was Hindi which the confessing accused could understand, the recording
of the statement was done in Hindi and such recording was completely
in conformity with Rule 15 of the Rules framed under the Act.
(d) Lastly, soon after recording of the confession, the confessing
accused was produced before the Chief Judicial Magistrate. The
Confessional statement in a sealed cover was also produced for onward
transmission to the Designated Court. Thus, the guidelines also stood
completely complied with.
Mr. Dushayant Parashar, learned amicus curiae attempted to
support the judgment under appeal. The learned amicus curiae fairly
accepted that the document recording the confession itself disclosed
that the entire statement was read over and explained to the
confessing accused. He further fairly accepted that there was no
effective cross examination on this issue when PW1 S.K. Bhatnagar was
in the box.

12. Section 15(1) of the Act expressly makes confession of an
accused recorded by a Police Officer admissible in a trial of such
person, co-accused, abettor or conspirator for an offence punishable
under the Act. While upholding the constitutional validity of
Section 15(1) of the Act, this Court in Kartar Singh vs. State of
Punjab[1] specifically referred to the statutory obligation in Section
15(2) of the Act and conditions imposed in Rule 15 of the TADA Rules
in paras 258 and 259 respectively and then proceeded to lay down
certain guidelines in para 263.
The extent of admissibility of such confession under Section
15(1) of the Act as against a co-accused was considered by this Court
in State vs. Nalini & Others[2]. Wadhwa J. in para 424 observed as
under:

“424. In view of the above discussions, we hold the confessions
of the accused in the present case to be voluntarily and validly
made and under Section 15 of TADA confession of an accused is
admissible against a co-accused as a substantive evidence.
Substantive evidence, however, does not necessarily mean
substantial evidence. It is the quality of evidence that
matters. As to what value is to be attached to a confession will
fall within the domain of appreciation of evidence. As a matter
of prudence, the court may look for some corroboration if
confession is to be used against a co-accused though that will
again be within the sphere of appraisal of evidence.”

Quadri J. struck a similar note of caution in para 706 as under:

“706. It is also to be borne in mind that the evidence of
confession of a co-accused is not required to be given on oath,
nor is it given in the presence of the accused, and its veracity
cannot be tested by cross-examination. Though the evidence of an
accomplice is free from these shortcomings yet an accomplice is
a person who having taken part in the commission of offence, to
save himself, betrayed his former associates and placed himself
on a safer plank — “a position in which he can hardly fail to
have a strong bias in favour of the prosecution”, the position
of the accused who has given confessional statement implicating
a co-accused is that he has placed himself on the same plank and
thus he sinks or sails along with the co-accused on the basis of
his confession. For these reasons, insofar as use of confession
of an accused against a co-accused is concerned, rule of
prudence cautions the judicial discretion that it cannot be
relied upon unless corroborated generally by other evidence on
record.”

13. It is settled position in law that a confession recorded under
Section 15(1) of the Act in accordance with statutory requirements and
in keeping with the guidelines is admissible against the maker, his co-
accused, abettor or conspirator in a trial for an offence under the
Act, subject to the condition stipulated in the proviso to Section
15(1). Such confession is taken as substantive piece of evidence and
can form the foundation or basis for conviction of the maker, co-
accused, abettor or conspirator. However, the note of caution
struck by this Court is, insofar as use of confession of an accused
against a co-accused is concerned, rule of prudence would require
the Court not to rely thereon unless corroborated generally by other
evidence on record.

14. With these principles in mind, we now turn to the requirements
of Rule 15(1) of TADA Rules and the facts in the matter. Rule 15(1)
stipulates that the confession “shall invariably be recorded in the
language in which such confession is made and if that is not
practicable, in the language used by such police officer for official
purposes or in the language of the Designated Court ……”. The
expression “invariably” itself suggests that the requirement under the
Rule is discretionary and not mandatory. The record in the present
matter is very clear that the confessing accused Ghulam Nabi was
produced before PW1 S.K. Bhatnagar on 16.12.1995, was given statutory
warning and time to reflect. Everything was explained to him and only
thereafter his thumb impression was taken. On the next occasion when
the confessing accused was again produced before the witness, soon
after the recording of the confession it was again explained to him,
read over and only thereafter the thumb impression was taken. At no
stage during the recording on these two occasions, nor at the stage
when the witness was in the box, there is anything on record, or even
a suggestion that the confessing accused did not understand or was not
made to understand the contents of the confession. The contents of
the confession also disclose that many of the assertions are personal
to the confessing accused which could only be gathered after due
conversation with the Recording Officer.

15. The language used as a means of communication between the
confessing accused and the recording officer being Hindi or
Hindustani, such recording of confession in Hindi language is
completely in conformity with the requirement of the Rule. The
conclusion drawn by the trial court that Ghulam Nabi being Pakistani
national his language must be Urdu and therefore the recording of the
confession in a language other than Urdu, must be held to be not in
conformity, is wrong. Nothing has been placed on record that the
confessing accused did not understand the line of questioning or that
he was not made to understand the contents of the confession after the
recording was complete. In our view the assessment made by the trial
court in this behalf is completely incorrect and against the record.

16. We find no infirmity in the recording of confession by PW1 S.K.
Bhatnagar. The confession of accused Ghulam Nabi was recorded in
keeping with the guidelines issued by this Court and was in accordance
with the statutory requirement. Holding the confession to be
admissible, we have gone through the contents of the confession which
clearly admitted the guilt of the confessing accused and his
involvement right from the hatching of conspiracy to the execution
thereof. The confessing accused had spoken about various stages since
the conspiracy was hatched and how the confessing accused had helped
in transporting the explosive material from across the border and
then placed it in the pits, dug inside the stadium and on the main
road outside the stadium. The consequential explosion of the bombs
which was timed with the celebrations on account of Republic Day was
definitely designed to disrupt the celebrations and terrorize the
people in general and those who had gathered at the time of
celebration in particular. We, therefore, hold that from the
confession, the involvement of accused Ghulam Nabi in entering into
the conspiracy, execution and facilitation thereof is completely
made out. As held by this Court, the confession of an accused is a
substantive piece of evidence and his conviction can be founded on
such confession itself. We, therefore, hold Ghulam Nabi Guide to be
guilty of the offences with which he was charged.

17. However, as regards the other accused, namely, Wasim Ahmed
Malik, apart from the confession of Ghulam Nabi Guide that is to say
the confession of co-accused, nothing has been placed on record which
could lend corroboration as regards his role in the conspiracy and
execution thereof. We have minutely considered the material but
could not locate anything which could afford such corroboration.
Going by the rule of prudence as highlighted by this Court in the case
of State vs. Nalini (supra), we do not find any justification to
reverse the finding of acquittal as recorded in respect of said
Wasim Ahmed Malik. We, therefore, affirm the acquittal of Wasim
Ahmed Malik as recorded by the trial court in respect of the offences
with which he was charged.

18. Consequently, this appeal is partly allowed. The acquittal of
Wasim Ahmed Malik is confirmed. However, the order of acquittal in
respect of Ghulam Nabi is set aside and said accused Ghulam Nabi Guide
is convicted of the offences with which he was charged. This being an
appeal against the decision of acquittal rendered by the trial court,
we deem it appropriate to issue notice to said Ghulam Nabi Guide on
the issue of sentence. The authorities are directed to produce said
Ghulam Nabi Guide before this Court so that appropriate opportunity to
address this Court on the sentence to be awarded to him, can be
afforded to him.

19. The appeal stands allowed in the aforesaid terms. The
authorities are directed to ensure that Ghulam Nabi Guide is taken in
custody forthwith and brought before this Court for the hearing on
sentence.

20. We also direct the Supreme Court Legal Services Committee to pay
to Mr. Dushyant Parashar Rs.20,000/- as remuneration for the
assistance rendered to this Court.

…………………………J.
(A.K. Sikri)

…………………………J.
(Uday Umesh Lalit)

New Delhi,
July 01, 2015
-----------------------
[1] (1994)3 SCC 569
[2] (1999)5 SCC 253

Sections 7 and 13(1)(d) and 13(2) of the Prevention of Corruption Act 1988 = In the present case the versions of PW1 and PW2 are completely consistent establishing the basic ingredients of demand and acceptance. The tainted currency notes were found on the person of the appellant. The explanation give by him soon after the incident through his letter dated 10.06.2003 is completely different from the theory put forth while the appellant examined himself as DW2. In our view, the demand and acceptance thus not only stand fully established but the presumption invocable under Section 20 of the Act also stood unrebutted The other two cases cited by the appellant dealt with situations where the demand and acceptance were not fully established and despite that an attempt was made to rely on the presumption invocable under Section 20 of the Act. Such is not the case in the present matter. It is further well established that where misconduct is proved, the alleged enmity between the complainant and the delinquent officer is immaterial. (See B. Hanumantha Rao v. State of A.P.[4])..

Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.697 of 2011

Chaitanya Prakash Audichya …. Appellant

Versus

C.B.I. ….
Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. This appeal by Special Leave challenges the judgment and order
dated 06-12-2010 passed by the High Court of Bombay at Goa in Criminal
Appeal No.12 of 2010 by which the High Court affirmed the conviction
and sentence of the appellant under Sections 7 and 13(1)(d) and 13(2)
of the Prevention of Corruption Act 1988 (hereinafter referred to as
“the Act”).

2. The case of the prosecution was that PW1 Chandra Shekhar Bandari
was sole proprietor of M/s JCS Associates, which firm was undertaking
construction work for governmental agencies. The firm was awarded two
contracts in March 2003 by Oil and Natural Gas Commission, Betul, Goa
and it was mandatory requirement to have a licence from the office of
the Assistant Labour Commissioner, (Central) Vasco. PW1 therefore
applied for requisite licence vide applications, Exts. 31 and 32 with
necessary documents along with prescribed fees and the applications
were received in the office on 13-05-2003. According to PW1, he was
told that the applications would be processed within seven to ten
days. Since no communication was received within ten days, he
approached the appellant who was then working as Assistant Labour
Commissioner (Central) Vasco. PW1 was told by the appellant that his
application would be duly processed. However nothing was heard in the
matter.

3. According to the case of the prosecution the appellant was to
visit the site of the proposed construction on 29-05-2003. PW1 was
therefore present at the site. The appellant came and verified the
documents at the site itself. According to PW1, the appellant was
camping in the Rest House when PW1 went to meet him. The appellant had
prepared Inspection Notes, Ext. 33 bearing signatures of the appellant
and PW1. In the rest house the appellant allegedly demanded Rs.30,000/-
towards illegal gratification for issuance of licence to PW1. The
appellant told him to pay Rs.10,000/- by next day and the balance
amount of Rs.20,000/- was to be paid after issuance of the licence.

4. On the next day i.e. on 30.05.2003 PW1 decided to file a
complaint against the appellant in the office of CBI, Panaji and gave
written complaint, Ext. 34 which was received at 1.15 pm in the
office. The necessary approval having been received at 1.56 pm,
appropriate steps for registering the crime and to lay a trap were
undertaken. A request was sent to the office of Assistant General
Manager, Bank of India, Panaji at about 2.25 pm to depute two officers
from the Bank to act as panch witnesses. In the mean time FIR was
registered at 3.15 pm in pursuance of said complaint Ext. 34.
Accordingly PW2 Ranjit Singh Thakur and one Karapurkar, both officials
from the Zonal Office of Bank of India were sent to act as panch
witnesses at about 4.30 pm. Pre trap proceedings were undertaken. The
numbers of three currency notes of Rs.1000/- each and fourteen notes
of Rs.500/- each produced by PW1 were noted. Phenolphthalein powder
was applied to the currency notes. The panch witnesses and PW1 were
explained and briefed about the trap and those currency notes were
kept in the shirt pocket of PW1 with instructions not to touch those
notes unless and until demand was made by the appellant. The members
of the raiding party then left the office of CBI at about 5.30 pm.
Since PW1 was unaware about the residential address of the appellant,
the party first went to his office where one of the clerks gave the
residential address of the appellant, whereafter the party proceeded
to his residence. PW1 along with PW2 went to the house of the
appellant which was situated on the ground floor of a building. The
door was opened by wife of the appellant who told PW1 that the
appellant was not available and that he had told her that in case PW1
came, he should be asked to wait. She further conveyed that the
appellant would be back after 10.00 pm where upon PW1 told her that
they would come back later and left the place. The raiding party then
waited till 10.00 pm.

5. At about 10.15 pm PW1 and PW2 went to the residence of the
appellant who opened the door and invited them inside. The appellant
asked PW1 whether he had brought Rs.10,000/- as told by the appellant.
Thereafter PW1 handed over the amount of Rs.10,000/- kept in his
shirt pocket to the appellant who told him that the licence would be
issued on Monday i.e. 02.06.2003. The appellant then kept the amount
in his T-shirt pocket. PW2 was all the while sitting with PW1. PW2
then came out of the house and upon his signaling the raiding team
went inside. The wrist of the right hand of the appellant was caught-
hold of and the fingers of his right hand upon being dipped, the
solution turned pink. The numbers of currency notes were verified and
the portion of T-shirt of the appellant also turned pink upon being
dipped in the solution. Post-trap panchnama was drawn. The search of
the house of the appellant conducted thereafter resulted in recovery
of cash leading to registration of a separate case against him with
which we are presently not concerned.

6. The investigation was completed and appropriate sanction was
granted for prosecuting the appellant for the offences punishable
under Sections 7 and 13(1)(d) and13(2) of the Act. The charges were
framed and the matter was tried in the court of Special Judge, Goa at
Madgaon vide Special Case No.6 of 2009. The prosecution principally
relied upon the evidence of PW1 and PW2 to establish the demand and
acceptance of gratification by the appellant. PW1 also deposed to the
facts regarding his application for issuance of licence, his meeting
with the appellant in the Rest House on 29.05.2003, the demand made by
the appellant at that time and his complaint lodged on the next day.
He further deposed that the appellant had asked him to come to his
house after office hours on 30.05.2003 along with bribe amount and
that when the wife of the appellant opened the door of the house she
said that the appellant had conveyed that in case PW1 came, he be
asked to wait. PW2 while supporting the version of PW1, stated that
when PW1 asked about his licence, the appellant told him that in case
PW1 paid the agreed amount the appellant would issue the licence on
the next day. The witness further stated that PW1 thereafter took out
and gave the money to the appellant which was kept by the appellant
in his T-shirt pocket. PW3 Sadanand Naik, Upper Division Clerk in the
office of the Assistant Labour Commissioner, Vasco stated that the
applications preferred by PW1 were registered on 13.05.2003, that
those applications were in order, that the appellant had told PW3 to
keep those applications pending and that similar applications were
disposed of normally within 2-3 days. PW6 Police Inspector Chonkar
Investigating Officer deposed about the various steps during the
course of the trap proceedings including pre-trap and post-trap
panchnama.

7. The appellant examined his immediate successor in office Shri
Karamchand as DW1 and himself as DW2. It was his case that after
conducting inspections at various sites on 30.05.2003 he returned home
at 10.30 pm and while he was preparing to retire two unexpected
visitors, namely, PW1 and PW2 came to his residence. It was further
deposed that PW1 had pushed something in his shirt pocket whereupon
the appellant put his hand in the pocket to find out what it was, when
someone who had entered his house caught hold of his hand. He further
stated that after the raid, he was placed under arrest and was
released on bail on 04.06.2003 whereafter he wrote letter dated
10.06.2003 to the Secretary, Ministry of Labour.

8. However, the version in said letter dated 10.06.2003, on which
the appellant heavily relied and which was also placed on record in
the present appeal, was to the following effect:
“After conducting inspections when I returned back at home
around 10.15 pm two persons i.e. Shri Chandra Shekar along with
another person forcefully entered in my house and pressurized me
to accept some bribe and demanded to serve cold drinks. Since
this was an odd time and nobody was available nearby to help
hence I acted as per their desire. They forcefully dropped some
rupees in my pocket and threatened me. Since myself was alone
with my wife and I was very much tired after conducting lot of
inspections in remote area and due to long journey I was not in
a position to think much to come out from the situation. After
that immediately, some CBI Officers entered and pressurized me
to take out the money from my pocket. When I requested them
that this fellow has forcefully put this money in my pocket and
if they want they can take it from my pocket and that I am not
aware also that how much money they have put in my pocket, the
CBI Officers were not ready to listen to my request and they
pressurized me to take out the money with my own hand.”

9. The trial court after considering the material on record came to
the conclusion that the case against the appellant stood fully
established and that he had abused his position as public servant by
accepting illegal gratification and had committed offences as alleged.
The trial court convicted the appellant under Section 7 of the Act
and sentenced him to suffer imprisonment for one year and to pay fine
of Rs.10,000/-, in default whereof to suffer simple imprisonment for
two months. The appellant was also convicted under Section 13(1)(d)
read with Section 13(2) of the Act and sentenced to suffer
imprisonment for one year and to pay fine of Rs.10,000/-, in default
whereof to undergo simple imprisonment for two months. Both the
sentences were ordered to run concurrently. The appellant preferred
Criminal Appeal No.12 of 2010 in the High Court and the High Court by
the judgment under appeal confirmed the conviction and sentence as
ordered by the trial court. In this appeal by special leave, the
appellant was directed to be released on bail, which facility he
continues to enjoy.

10. Shri R. Venkataramani, learned senior Advocate along with Shri
Manu Mridul, learned Advocate appearing in support of the appeal
submitted inter alia, that (1) the FIR in the present case was
registered at 3.15 pm on 10.05.2003 whereas the services of the panch
witnesses were requisitioned at about 2.25 pm i.e. even before the
registration of the crime. (2) In the complaint Ext.34 the place and
time for acceptance of money as demanded by the public servant was not
mentioned at all. (3) The fact that on the day in question the
raiding party first went to the office also indicated the absence of
fixing of such definite place and time; which makes the case of the
prosecution completely suspect. (4) The entire trap was undertaken
without making any preliminary investigation which as per the CBI
manual ought to have been undertaken first. (5) The way the raiding
party had conducted itself showed it was clearly a case of the public
servant being chased. (6) The appellant was responsible for having
initiated certain proceedings against PW1 and thus the present
complaint was not bona fide.

11. In support of these submissions reliance was placed on the
decisions of this Court in P. Parasurami Reddy v. State of Andhra
Pradesh[1], Banarsi Dass v. State of Haryana[2] and State of
Punjab v. Madan Mohan Lal Verma[3].

12. Shri P.K. Dey, learned Advocate appearing for the respondent,
while countering the aforesaid submissions submitted that after
receipt of the complaint at about 1.15 pm on 30.05.2003 the requisite
approval was received on fax at about 1.56 pm, whereafter looking to
the allegations in the complaint that the money had to be given that
very day, immediate steps were undertaken. As part of the exercise,
services of panch witnesses were requisitioned while the FIR was being
registered. He further submitted that since the money had to be paid
by 30.05.2003, because of paucity of time no preliminary investigation
was undertaken. Relying on the testimony of PW3 he submitted that the
applications preferred by PW1 were ordered by the appellant to be kept
pending and that the acceptance of gratification on the day in
question completely clinched the matter. Relevant currency notes were
found in possession of the appellant and in his submission the aspect
of demand and acceptance also stood proved by consistent versions of
PW1 and PW2.

13. We have gone through the record and considered the relevant
material. The fact that PW1 was awarded contracts by ONGC and that it
was a mandatory requirement to have the requisite licence from the
office of the Assistant Labour Commissioner is well established.
Further the fact that PW1 preferred applications Exts.31 and 32 for
necessary licences is also established on record. According to PW3
the applications were registered on 13.05.2003 and that the
applications were in order. Furthermore, according to this witness
such applications would normally be dealt with in 2-3 days and that
the applications were kept pending because of the instructions of the
appellant himself. Though a feeble attempt was made to submit that
there were interpolations in the applications, the assertion that the
applications were complete and kept pending because of instructions of
the appellant could not be controverted. We, therefore, accept that
the applications were complete in all respects and as stated by PW3
they were kept pending because of the instructions of the appellant.
It is also part of the record that the site in question was inspected
by the appellant on 29.05.2003 as the inspection notes Ext.33 would
disclose. The assertion on part of PW1 that he had an occasion to
meet the appellant that day is well supported. Though it was denied
that any meeting had taken place in the Rest House where demand was
made as alleged, the facts as they stand unfolded, fully substantiate
the assertion made by PW1.

14. Complaint Ext.34 preferred on 30.05.2003 itself disclosed that
the money was demanded and that the complainant was asked to make the
payment by 30.05.2003 itself. Given the assertions in the complaint,
the submission that no preliminary investigation could be undertaken
because of paucity of time is well founded. At the same time the
incongruity in the timing when services of panch witnesses were sought
for also pales into insignificance. It is true that the complaint did
not state or suggest any time and place at which the complainant was
supposed to fulfill the demand. Though in P. Parasurami Reddy v.
State of Andhra Pradesh (supra) there are certain observations that
there was no prior commitment fixing the time and place for receiving
the bribe, the decision discloses that there were various other
circumstances which weighed with this Court. In any case, the facts
in the present case show otherwise.
It was asserted by the complainant in his examination that he
was asked by the appellant to see him at his residence after the
office hours. Further, when PW1 and PW2 went to the house of the
appellant, the conversation which PW1 had with wife of the appellant
clearly shows that the visit of PW1 was quite expected. On this issue
there was no effective cross examination at all. It would therefore
be inconsequential if no prior commitment regarding fixing of the time
and place for receiving the bribe was mentioned in the complaint.

15. In the present case the versions of PW1 and PW2 are completely
consistent establishing the basic ingredients of demand and
acceptance. The tainted currency notes were found on the person of
the appellant. The explanation give by him soon after the incident
through his letter dated 10.06.2003 is completely different from the
theory put forth while the appellant examined himself as DW2. In our
view, the demand and acceptance thus not only stand fully established
but the presumption invocable under Section 20 of the Act also stood
unrebutted.

16. The other two cases cited by the appellant dealt with situations
where the demand and acceptance were not fully established and despite
that an attempt was made to rely on the presumption invocable under
Section 20 of the Act. Such is not the case in the present matter.
It is further well established that where misconduct is proved, the
alleged enmity between the complainant and the delinquent officer is
immaterial. (See B. Hanumantha Rao v. State of A.P.[4]).

17. In the circumstances we are not persuaded to take a view
different from the one which weighed with the courts below. Affirming
the decisions taken by the High Court and the trial court, we dismiss
the present appeal. The bail bonds stand cancelled and the appellant
shall be taken in custody forthwith to undergo the sentence awarded to
him.

…………………………J.
(A.K. Sikri)

…………………………J.
(Uday Umesh Lalit)

New Delhi,
July 01, 2015
-----------------------
[1] (2011) 12 SCC 294,
[2] (2010) 4 SCC 450
[3] (2013) 14 SCC 153
[4] 1993 Supp. (1) SCC 323

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