“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL) NO.7532 OF 2012
N. Kannapan …. Petitioner
Versus
State (Union Territory) Andaman & Nicobar Islands …. Respondent
WITH
SPECIAL LEAVE PETITION (CRL.) No.8286 of 2012
R. Chidambaram …. Petitioner
Versus
State (Union Territory) Andaman & Nicobar Islands …. Respondent
WITH
SPECIAL LEAVE PETITION (CRL.) No.8730 of 2012
Sanjay Choudhury …. Petitioner
Versus
State (Union Territory) Andaman & Nicobar Islands …. Respondent
WITH
SPECIAL LEAVE PETITION (CRL.) No.8876 of 2012
S. Namochivayam (In Jail) …. Petitioner
Versus
State (Union Territory) Andaman & Nicobar Islands …. Respondent
J U D G M E N T
JAGDISH SINGH KHEHAR, J.
1. On a complaint made by H.L. Tiwari FIR No.546 was registered at
Police Station CCS, Port Blair on 21.6.2011. The FIR and the action taken
thereupon indicate, that a cargo ship (christianed, Gati Zipp) had set sail
from Chennai and was to reach Port Blair on 20.6.2011. It was alleged,
that the aforesaid cargo ship was carrying cartons shipped by VMR Shipping
Agency.
It was also alleged, that the cartons of VMR Shipping Agency
contained unauthorized substances.
At the time of the receipt of the
information, the cargo ship was allegedly berthed at Haddo Jetty, Port
Blair. Based on the said information recorded in the First Information
Report, a raiding party comprising of one Inspector, one Sub-Inspector, two
Head Constables, two Constables, one police driver (of the rank of Head
Constable) and one official photographer was organized. On reaching Haddo
Jetty the raiding party associated with itself, one Sub Inspector, three
Head Constables and one Constable of the SB-CID staff stationed there. Two
independent persons Nikhi Sakar, a Tally Clerk at Port Blair and Manoj
Kumar were also associated with the raiding party.
2. The raiding party, having reached Haddo Jetty, started looking for
the cartons/containers shipped by VMR Shipping Agency, which had arrived at
Port Blair in Gati Zipp.
The raiding party identified a container
belonging to VMR Shipping Agency, which had been unloaded from the
concerned cargo ship (Gati Zipp). The container in question, was further
being loaded into a truck bearing registration no.AN-01E-1847. G..S. Babu
was supervising the loading operations of the aforesaid container.
As per
the declaration in the manifest list, the carton in question, contained
four drums of grease. The four drums found in the container were
photographed by the official photographer. The said drums were then
checked in the presence of independent witnesses.
The alleged contents of
the four drums (revealed upon search by the raiding party) are being
summarized hereunder:
i) First drum: Three packets of grease, 406 pieces of gelatine
sticks and 122 bundles of electronic detonators (each bundle
containing 25 detonators, i.e., in all 3000 detonators).
ii) Second drum: 405 gelatine sticks and 120 bundles of electronic
detonators (in all 3000 detonators)
iii) Third drum: 823 gelatine sticks
iv) Fourth drum: 823 gelatine sticks.
The drums as well as the explosive substances recovered from the drums, were counted and seized, in the presence of independent witnesses.
Before
that, five gelatine sticks were taken from the first drum and secured in a
separate packet for chemical analysis. Likewise, five electronic
detonators were taken from the first drum and secured in a separate packet
for chemical examination. The person who was supervising the reloading of
the container into the truck bearing registration no. AN-01E-1847 allegedly
identified himself as G.S. Babu. He also disclosed, that he was employed
as Manager by VMR Shipping Agency.
3. With the assistance of G.S. Babu, and in the presence of the official
photographer and the independent witnesses, the raiding party allegedly
identified
another container belonging to VMR Shipping Agency. The said
carton/container had also been off-loaded from Gati Zipp.
As per its
declaration in the manifest list, the second carton, contained salt. The
aforesaid container was also opened in the presence of independent
witnesses.
It was found, that the contents of the instant container were
enclosed in a large plastic bag.
The large plastic bag in turn contained
smaller plastic bags. The small plastic bags had the inscription “imported
coated drilled ammonium nitrate” and “net weight 50 kilograms” printed on
them.
200 such small bags were allegedly found in the second container.
The official photographer also clicked photographs of the contents of the
second container.
The aforesaid bags contained in all, 10,000 kgs of
ammonium nitrate.
The aforesaid ammonium nitrate was taken into
possession. Two samples of the contents of the small bags, weighing 50
grams each, were taken for chemical analysis.
4. Based on the recovery of the aforesaid explosive substances, further
investigations were carried out. These investigations allegedly revealed
inter alia, the names of the petitioners before this Court. Consequent
upon the discovery of the petitioners involvement with the consignment of
unauthorized explosive substances, they were arrested. Applications filed
by the petitioners for bail remained unsuccessful. The impugned orders in
these petitions is the last such unsuccessful attempt, made on behalf of
the petitioners. It is therefore, that the petitioners are now before us,
praying for bail.
5. In order to support their claim for release on bail, it was the
vehement contention of the learned counsel for S. Namochivayama (petitioner
in SLP (Crl.) no.8876 of 2012), that
the petitioner runs a grocery shop,
and cannot be associated with the allegations narrated in the First
Information Report, as also, the alleged recovery of explosive substances.
6. In so far as N. Kannapan, R. Chidambaram and Sanjay Choudhary
[petitioners in SLP (Crl.) no. 7532 of 2012, SLP(Crl.) no. 8286 of 2012,
and SLP (Crl.) no. 8730 of 2012, respectively] are concerned,
the principal
submission is, that they are all genuine quarry operators, possessing valid
licences for carrying out quarrying operations.
They are officially issued
explosives by the Andaman Public Works Department, which they use for
extraction of boulders from their respective quarries, over which they have
valid licences.
Their contention in nutshell is, that the action of the
petitioners in possessing and using explosive substances is legal and
legitimate.
As such, the aforesaid three petitioners contend, that they
are not involved in any unauthorized activity. All the petitioners
therefore pray for their release on bail.
7. In support of their prayer for bail, it was pointed out, that
the
First Information Report in this case was registered as far back as on
21.6.2011,
the first chargesheet in the case was filed on 24.8.2011.
Thereafter, three supplementary chargesheets were filed on 30.1.2012,
10.4.2012 and 7.7.2012.
It was the pointed submission of all learned
counsel, that
based on the successive filing of the supplementary charge-
sheets, their detention in jail was being unduly and intentionally
prolonged, for extraneous considerations.
It was also pointed out by the
learned counsel for the petitioners, that
all the petitioners have already
been in jail for periods exceeding one year and, as such, they should be
extended the concession of bail.
8. It was also the contention of the learned counsel for the
petitioners, that the confiscated explosive materials, even according to
the contents of the First Information Report, and the three chargesheets
referred to above, were admittedly being used for quarrying operations.
It
was submitted, that there is no allegation against any of the accused, that
the contraband detained in Port Blair was for use in any terrorist or like
activity/activities.
It was submitted, that
keeping in mind the tenor of
the insinuations contained in the First Information Report, as also, the
allegations contained in the chargesheets, the petitioners should not be
dealt with as if they are terrorists or are associated with terrorists.
9. Additionally, it was the contention on behalf of all the petitioners,
that
no explosive materials were recovered from the premises of any of the
petitioners, and accordingly, none of the petitioners could be associated
with the recovery of explosives allegedly made from the shipping yard at
Port Blair.
It was submitted, that
the petitioners have been detained,
only on the basis of telephone conversations, and deposit of cash in bank
accounts, which have no nexus with the recoveries of explosives made at
Port Blair.
10. We shall endeavour to deal with the pointed allegations levelled
against each of the petitioners hereinafter. We shall deal with the
petitioners, in the same sequence, in which submissions on their behalf,
were addressed at the Bar.
11. First and foremost, the allegations against S. Namochivayama
(petitioner in SLP (Crl.) no.8876 of 2012). According to learned counsel
representing the respondent state,
G.S. Babu who was arrested when the
contraband was recovered at Haddo Jetty, Port Blair, as also, the driver
Pankriacius Ekka (of the vehicle bearing registration No.AN-01E-1847)
revealed, that the bags (200 bags) of ammonium nitrate seized by the
raiding party on 21.6.2011, were booked in the name of M/s.Karpaga Vinagar
Stores, whose proprietor is the petitioner S. Namochivayama. The
investigations conducted by the police also revealed, that consignments of
ammonium nitrate used to be distributed by S. Namochivayama, to the other
co-accused, who are involved in quarrying operations.
Even the driver,
named above, had expressly indicated, that it was at the directions of the
petitioner S. Namochivayama, that he had gone to Haddo Jetty, Port Blair,
for collecting the consignment under reference.
According to the evidence
allegedly collected by the investigating agency, Muthuraja and Sadasivam
are the proprietors of VMR Shipping Agency.
They were responsible for
shipping the containers from Chennai to Port Blair. Both the aforesaid
Muthuraja and Sadasivam are related to the petitioner S. Namochivayama.
It
is also the case of the prosecution, that another accused Raghavan, also a
consignee of the gelatine sticks and detonators, was related to petitioner
S. Namochivayama.
It is also asserted by the learned counsel for the
respondents, that the evidence collected by the investigating agency
clearly demonstrates the involvement of the petitioner S. Namochivayama,
inasmuch as, the instant consignment was not a stray incident.
The
petitioner S. Namochivayama is believed to have been indulging in such
activities in the ordinary course of his business.
In view of the
petitioner S. Namochivayama being the distributor of ammonium nitrate,
gelatine sticks and electronic detonators at Port Blair, he was perceived
as the kingpin of the alleged activity, at Port Blair.
And therefore, a
prime accused in the alleged conspiracy.
Finally, it was the contention of
the learned counsel for the respondents, that procurement of explosives of
the nature in question (which were recovered by the police party on
21.6.2011), and their unauthorized sale and use, is a matter of serious
concern, not only for environmental purpose, but also for national
security.
It was pointed out, that explosives of the nature recovered at
Port Blair on 21.6.2011, can easily be used for other allied unauthorized
purposes, with disastrous consequences.
12. The name of N. Kannapan (petitioner in SLP (Crl.) no.7532 of 2012),
allegedly came to light, from the statement of witnesses recorded under
Section 164 of the Code of Criminal Procedure.
According to the statement
of Magesh, the petitioner N. Kannapan had paid a sum of Rs.3,20,000/- to
him.
The aforesaid amount was deposited by the aforestated Magesh in the
account of Selvam.
The bank account of Selvam affirmed the truthfulness of
the aforesaid assertion.
Call details reveal, regular conversation between
the petitioner N. Kannapan and Selvam, which establishes their
relationship.
N. Kannapan was also found to be associated in the matter,
as Shanmugam in his statement under Section 164 of the Code of Criminal
Procedure affirmed, that the petitioner N. Kanappan was using ammonium
nitrate for quarrying operations.
In this behalf it was pointed out, that
the Andaman Public Works Department had not issued any ammonium nitrate to
N. Kannapan, but the investigation revealed, that he was using the same for
quarrying purposes, at his own quarry.
It was also submitted, that the
findings of the forensic science laboratory indicate, that the seized goods
were “special category explosive substances”, and as such, the petitioner
N. Kannapan had actually used such explosive substances, without due
authorization in quarrying operations, and was liable for infringement of
the provisions under the Explosive Substances Act, 1908.
It was also
contended, that the explosive substances under reference, were brought in a
ship in a clandestine manner.
In this behalf it was pointed out, that
in
the declaration manifest of one of the cartons, the gelatine sticks and the
electronic detonators were described as grease. The other container with
ammonium nitrate, was described as salt (in the declaration manifest
relating thereto).
It was submitted, that if the intentions of the
petitioner N. Kannapan, were bonafide and genuine, there was no reason for
clandestine transportation of the ceased explosives from Chennai to Port
Blair.
The explosives in question, according to the learned counsel for
the respondents,
could be used for extraneous considerations, and had the
potential of a massive disaster, not only to life but also to property, on
the Andaman or neighbouring islands.
It was also pointed out, that the
petitioner N. Kannapan had a regular relationship with the other co-accused
in the transaction. The aforesaid relationship was allegedly established
from call data registers, depicting a relationship between the petitioner
N. Kannapan and the other co-accused.
13. R. Chidambaram (petitioner in SLP (Crl.)no.8286 of 2012) is
admittedly a quarry operator. For quarrying operations, he is admittedly
in possession of a valid quarry licence. He was issued 15 kgs. of gelatine
sticks and 60 detonators for quarrying operations by the Andaman Public
Works Department.
According to the inferences drawn, from expert opinion
sought on the issue, it had emerged, that the gelatine sticks and
detonators officially issued to the petitioner R. Chidamabaram, would
result in excavation of 450 metric tonnes of boulders, whereas, the
petitioner R. Chidambaram is stated to have extracted 1590 metric tonnes of
boulders.
This, according to learned counsel, was evident from the
transport permits used by R. Chidambaram, for transportation of the
boulders.
According to the learned counsel for the respondents, the
boulders excavated by petitioner R. Chidambaram, were three folds more than
what he could have, by using the explosives issued to him by the Andaman
Public Works Department. It was also the contention of the learned counsel
for the respondents, that the petitioner R. Chidamabaram was using ammonium
nitrate for quarrying activities, in the area over which he had a lease.
It is pointed out, that R. Chidambaram was not issued any ammonium nitrate
by the concerned authority. It is further submitted, that the statements
of Armugam, Ganeshan, Sashi, Shanmugam, Mageshwaram and Karupaiah, recorded
under Section 164 of the Code of Criminal Procedure, also revealed, the
involvement of petitioner R. Chidambaram in the procurement of illegal
explosive substances, and of their use in his quarrying activities. It was
also submitted, that the aforestated Mageshwaram, during the course of his
statement recorded under Section 164 Cr.P.C. had stated, that he
(Mageshwaram) used to collect money from the petitioner R. Chidamabaram,
and used to deposit the same in the account of Selvam. It is therefore
submitted, that the involvement of petitioner R. Chidambaram is based on
concrete and unrefutable evidence.
14. In the case of Sanjay Choudhary (petitioner in SLP (Crl.) no.8730 of
2010), it was submitted by the learned counsel for the respondents, that
his (of Sanjay Choudhary) position, was exactly the same as that of R.
Chidambaram, and as such, the factual position projected in the case of R.
Chidamabaram, should be considered as against Sanjay Choudhary as well. It
is pointed out, that the said similarity is on the following aspects. The
money collected by Nagesh and deposited in Selvam’s account. The use of
ammonium nitrate without allotment of the same by the competent authority.
The statements of Shamugam, Ganesh and Sashi under Section 164 Cr.P.C.
And
the fact, that although he was allotted only 15 kgs. of gelatine sticks and
60 electronic detonators, which could at best result in excavation of 450
metric tonnes of boulders; he was found to have extracted and transported
1905 metric tonnes of boulders, i.e., more than four times the amount which
he could have excavated on the basis of the allotted explosives.
15. Having considered the assertions made at the hands of the rival
parties,
we are satisfied, that there is prima facie material, to establish
the involvement of the petitioners in activities violating the provisions
of the Explosive Substances Act, 1908. The consequences of such violation
are extremely serious. The minimum punishment on conviction, is 10 years
rigorous imprisonment. For more serious activities, the punishment can
extend to imprisonment for life, and with death penalty. In the pleadings,
and during the course of hearing, we were informed, that some of the
accused are still absconding.
Obviously all the accused are financially well placed.
Releasing them from jail at the present juncture, when the
prosecution has not even commenced to examine the main witnesses, could
prove detrimental to the eventual outcome of the trial.
Atleast till the
culmination of the evidence of the material witnesses, it is not proper to order the release of the petitioners on bail.
In the facts and
circumstances noticed hereinabove, we hereby decline the prayer for bail
made by the petitioners. The impugned orders passed by the High Court are
accordingly affirmed.
16. Having disposed of the matter in the manner expressed hereinabove, we
consider it just and appropriate to direct the prosecution to first examine
the material witnesses. It shall be open to the petitioner(s) to move a
fresh application for bail, after the examination of all the material
witnesses. Observations made in the instant order, on the merits of the
controversy, shall not prejudice any of the parties during the course of
the trial or thereafter.
17. Disposed of in the aforesaid terms.
…………………………….J.
(Dr. B.S. Chauhan)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 3, 2013.
-----------------------
12
