IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 Crl.MC.No. 3284 of 2011(A) ------------------------- CC.4670/2011 of JUDL.MAGISTRATE OF FIRST CLASS-I, ERNAKULAM .................... PETITIONER(S): --------------- 1. HABIB TAJ, AGED 40 YEARS, S/O. RAMZAN, KALBER VILLAGE, CHABHAR, IRAN (A4), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 2. MUHAMMED UNIS, AGED 23 YEARS, S/O. IBRAHIM, KALBER VILLAGE, CHABHAR, IRAN (A3), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 3. RAHMATHULLA, AGED 25 YEARS, S/O.IBRAHIM, KALBER VILLAGE, CHABHAR, IRAN (A2), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL,TRICHUR. 4. MIRZA HUKKUM, AGED 28 YRS, S/O. MUHAMMED USMAN, HUJARI BABAR, KAKKI, BANNU, KAKKI, PAKISTAN(B4), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL,TRICHUR. 5. TARIQ ZAMAN, AGED 20 YEARS, S/O. NOOR ZAMAN, MOHALLA MUHAMMEDI, KALONI DACK, KARACHI, PAKISTAN(A8), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL,TRICHUR. 6. IMRANULLA, AGED 20 YEARS, S/O. MOINULLA, MIRKALAM HUJARI, KAKK, BANNU, SARHAD, PAKISTAN(B2), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL,TRICHUR. 7. SULAIMAN, AGED 22 YEARS, W/O. AKTHARALI, AZAD HUJADI, BANNU, KAKK, SARHAD, PAKISTAN(A5), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL,TRICHUR. 8. MIR ZAKEM, AGED 29 YEARS, S/O. MOHAMMED, ZAHR KHUJARI, BANNU, SARHAD, PAKISTAN, NOW IN REMAND IN THE VIYOOR CENTRAL JAIL,TRICHUR. ....2 Crl.MC.No. 3284 of 2011(A) -2- 9. SHAH FAYYAZ, AGED 21 YEARS, S/O. ASIN NAVAS, MANJAKHEL, THAJIKALA, BANNU, SARHAD, PAKISTAN(A9), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 10. JAVED, AGED 22 YEARS, S/O. MUHAMMED DIL BARSHAD, ARKHI KAKKI VILLAGE, SARHAD, PAKISTAN(B7), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 11. NAZARULLA JHAN, AGED 22 YEARS, S/O.KASIM MARJAM, HUJARI BABAR, KAKKI, BANNU, SARHAD, PAKISTAN(A6), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 12. ZEENATULLAH, AGED 19 YEARS, S/O.MUHAMMED RAUF, MALANG HUJARI, KAKKI, BANNU, SARHAD, PAKISTAN(B9), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 13. HUB NAVAZ, AGED 21 YEARS, S/O. NOOR NAVAZ, ADIL KALONI, SADAR, BANNU, SARHAD, PAKISTAN(B5), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 14. INAMULLAH, AGED 24 YEARS, S/O. GUL MUHAMMED KHAN, HASSAN KHEL, THAJIKALA, GARIWAL, BANNU, SARHAD, PAKISTAN(A7), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 15. RAHMATULLA BANNU, AGED 30 YEARS, S/O.MUHAMMED NAVAS, HUJADI JANU, KAKKI, BANNU, SARHAD, PAKISTAN(B3), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 16. HAZARATHULLA, AGED 22 YEARS, S/O. GHAZI MARJAN, HASSEN KHEL JAFER KHAN, GARIWOL, BANNU, SARHAD, PAKISTAN(B8), NOW IN RENAMED IN THE VIYOOR CENTRAL JAIL, TRICHUR. 17. MUMEEZ KHAN, AGED 35 YEARS, S/O. MIR ALAM JHAN, AZAD HUJARI, KAKKI, BANNU, SARHAD, PAKISTAN(B6), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. 18. SAHIDULLAH, AGED 30 YEARS, S/O. SHER BAHADUR, BANNU,SARHAD, PAKISTAN(B1), NOW IN REMAND IN THE VIYOOR CENTRAL JAIL, TRICHUR. BY SRI.V.J.MATHEW, SENIOR ADVOCATE ADV.SRI.BIJISH B. TOM ...3 Crl.MC.No. 3284 of 2011(A) -3- RESPONDENT(S): --------------- 1. COMMANDING OFFICER, INS RAJ. PUT. C/O. FLEET MAIL OFFICE, VISHAKAPATANAM-530 014. 2. UNION OF INDIA, REPRESENTED BY DEFENCE SECRETARY, 101, SOUTH BLOCK, NEW DELHI-110 001. 3. THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP, KAVARATTI, UNION TERRITORY OF LAKSHADWEEP-682 555. 4. MINISTRY OF EXTERNAL AFFAIRS, REP. BY FOREIGN SECRETARY, SOUTH BLOCK, NEW DELHI-110001. 5. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. *ADDL.R6. NATIONAL INVESTIGATION AGENCY [REP. BY ITS DIRECTOR GENERAL] SPLENDOUR FORUM, NEW DELHI. *ADDL. R6 IMPLEADED SUO MOTO AS PER ORDER DATED 1.12.2011 R1,R2,& R4 ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R3 BY SRI.S.RADHAKRISHNAN,SC,LAKSHADWEEP ADMN ADDL.R6 BY SRI.M.AJAY, SPL. P.P FOR NIA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3284 of 2011(A) APPENDIX PETITIONERS ANNEXURES: ANNEXURE A1 THE TRUE COPY OF THE ENGLISH TRANSLATION OF THE FISHERMEN'S BOOKLET OF THE BOAT AL JAVIDI ISSUED BY THE IRAN FISHERY ORGANISATION DTD.27/6/2010 ALONG WITH THE COPY IN ARABIC. ANNEXURE A2 THE TRUE COPY OF F.I.R. NO 27/2010 REGISTERED BY THE KAVARATTI POLICE, LAKSHADWEEP AND SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT AND ROTH. ANNEXURE A3 THE TRUE COPY OF THE FINAL REPORT/CHARGE SHEET IN CC.NO.4670/2011 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT I, ERNAKULAM. RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A.TO JUDGE JJJ N.K. BALAKRISHNAN, J. ------------------------------------------ Crl. M.C. No: 3284 OF 2011 (A) ------------------------------------------ Dated this the 1st day of December, 2011 O R D E R Petitioners 1 to 7 and 9 to 18 are the accused in the charge sheet filed by the S.I. Of Police, Kavaratti Police Station, Lakshadweep. Offences alleged against them are under Section 14, r/w Section 7 and Section 10(b) r/w Section 3 of the Maritime Zone of India (Regulation of Fishing by Foreign Vessels) Act, 1981. The case is now pending before Judicial First Class Magistrate Court-I, Ernakulam as C.C. No:4670/2011. 2. It is stated that though the 8th petitioner was named in the FIR, he has not been arrayed as accused in the final report. It is contended that the petitioners are innocent poor fishermen who boarded fishing Dhow from Iran with no travel documents or passports. The fishing Dhow 'AL JAVIDI' was registered in Iran. They contend that they had sailed out from Passa Bandar Port, Chabahar - Iran, for Crl. M.C. No: 3284 OF 2011 (A) -2- fishing in international waters. They claim to have started sailing on 9.11.2010. On 3.12.2010 Indian Navy Ship intercepted and captured the said Dhow and brought them to Kavaratti and handed over the same to Kavaratti Police. 3. According to the prosecution there were 4 Iranian Nationals and 15 Pakistani Nationals in the said Dhow when it was captured from a spot 180 nautical miles away from Bitra island. They were not having valid license or permit for fishing in the Maritime Zones of India or to enter into that area. FIR was registered by Kavaratti Police. The Mahazar was prepared for the seizure of the properties. Though FIR was registered alleging offences under Sections 14(c) r/w Section 3 of Foreigners Act, 1946 and Section 12 (c) of Passport Act, 1967, those sections were deleted while final report was filed. 4. The learned senior counsel, Adv. Sri.V.J.Mathew, appearing for the petitioners would submit that the petitioners are only crew members and as such, they cannot be held liable for the offences with which they are charged. Crl. M.C. No: 3284 OF 2011 (A) -3- Section 3 of Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act reads: "Subject to the provisions of this Act, no foreign vessel shall, except under and in accordance with – (a) a licence granted under section 4; or (b) a permit granted under section 5. By the Central Government, be used for fishing within any maritime zone of India." Section 7 of the said Act reads: "Where any foreign vessel enters any maritime zone of India without a valid licence or permit granted under this Act, the fishing gear, if any, of such vessel shall, at all times while it is in such zone, be kept stowed in the prescribed manner." Other section incorporated in the Charge is Section 10(b) of that Act. Section 10 reads: "Where any foreign vessel is used in contravention of the provisions of section 3, the owner or master of such vessel shall – (a) in a case where such contravention Crl. M.C. No: 3284 OF 2011 (A) -4- takes place in any area within the territorial waters of India be punishable with imprisonment for a term not exceeding three years or with fine not exceeding rupees fifteen lakhs or with both: and (b) in a case where such contravention takes place in any area within the exclusive economic zone of India be punishable with fine not exceeding rupees ten lakhs." (underlined by me to lay emphasis) 5. Referring to this Section, the learned senior counsel submits that it is only the owner or master of such vessel who can be held liable under the provisions quoted above and therefore the petitioners, who are only innocent fishermen, cannot be held liable under any of those provisions and as such the charge sheet filed against these petitioners are only to be quashed. 6.It was argued on behalf of R2 that there is something Crl. M.C. No: 3284 OF 2011 (A) -5- fishy in the final report filed by the Kavaratti Police. The learned counsel appearing for R3 would only support the charge sheet filed by the Sub Inspector of Police, Kavaratti. It is argued on behalf of R2 that when Mr.Yashpal Yadav, Lieutenant, Indian Navy, inspected the vessel it could be found that the petitioners had ration and fuel stocked up for two months and most of the ration and food material were made in Pakistan. It is not disputed that the petitioners had sailed out from a port in Iran. Though the petitioners were claimed to have stated that they intended to carry out fishing in that area, they did not have any catch on board when Lt. Yashpal Yadav inspected the vessel. But it is pointed out that in the mahazar it was noted that there was 250 kilograms of stale fish. That apart, most of the petitioners had no identification documents. They were stated to have told that they are from Pakistan. 7. It was argued on behalf of R2 that the seizure mahazar would show that so many mobile phones, sim cards, wireless sets etc were also seized from the vessel. It Crl. M.C. No: 3284 OF 2011 (A) -6- was reported that 4 mobile phones were made in China, 2 sim cards, 1 memory card and 1 GPS were also seized from them and those properties were sent to C-DAC, Thiruvananthapuram, for forensic analysis. But C-DAC was stated to have reported that due to non availability of proper forensic tools the mobile phones, sim cards etc. could not be examined and hence those sim cards, memory cards and mobile phones were returned by C-DAC. It was further reported that those properties were again sent to Central Forensic Science Laboratory, Hyderabad, for forensic analysis, but the charge sheet was filed even before receiving the report from CFSL. 8. It was vehemently argued on behalf of R2 that entry of foreign vessels into the territorial waters of India, especially when those vessels were seen within the Exclusive Economic Zone of India, is a matter of serious concern since the foreign nationals intruding into our territorial waters do pose a great menace to the safety and security of our nation, especially after the Mumbai bomb Crl. M.C. No: 3284 OF 2011 (A) -7- blast. It was also argued that unless thorough examination from all angles is conducted, it cannot be found out whether the petitioners were only innocent fishermen or whether they were having some other evil motives to do anything against our nation. Hence, as per the request made on behalf of the second respondent, the National Investigation Agency, (NIA) was also impleaded as additional respondent. 9. Adv.Sri. M. Ajay, learned Standing Counsel for NIA, would submit that as no notification was issued under Section 6 of NIA Act empowering and entrusting investigation into the matter, NIA is not in a position to take-up investigation in this case. 10. It is pointed out that besides the Sections of offence incorporated in the charge sheet the accused are to be proceeded under the provisions of Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 also. The definition of Exclusive Economic Zone in Section 2(a) of MZI Act reads thus: Crl. M.C. No: 3284 OF 2011 (A) -8- " 'Exclusive Economic Zone of India' means the exclusive economic zone of India in accordance with the provisions of section 7 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976" Therefore the learned standing counsel would submit that the provisions contained in the parent Act namely Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, cannot be ignored or overlooked in the particular fact situation of this case. Sec 7(1) of the 1976 Act reads: “The exclusive economic zone of India (hereinafter referred to Exclusive as the exclusive economic zone) is an area beyond and adjacent to the territorial waters, and the limit of such zone is two hundred nautical miles from the baseline referred to in sub-section (2) of section 3.” Crl. M.C. No: 3284 OF 2011 (A) -9- Section 7(5) of Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 reads: "No person (including a foreign Government) shall, except under, and in accordance with, the terms of any agreement with the Central Government or of a licence or a letter of authority granted by the Central Government, explore or exploit any resources of the exclusive economic zone or carry out any search or excavation or conduct any research within the exclusive economic zone or drill therein or construct, maintain or operate any artificial island, off-shore terminal, installation or other structure or device therein for any purpose whatsoever: Provided that nothing in this sub-section shall apply in relation to fishing by a citizen of India." Section 11 is the penal provision contained therein which reads: "Whoever contravenes any provision of this Act or of any notification thereunder shall (without prejudice to any other action which may be taken against such person under any other provision of Crl. M.C. No: 3284 OF 2011 (A) -10- this or of any other enactment) be punishable with imprisonment which may extend to three years, or with fine, or with both" 11. It is pointed out that the facts mentioned in the final report do disclose the commission of an offence under section 7(5) r/w section 11 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 also, where there is no distinction between owner or the master of the vessel or the crew members. This would be besides the action taken under the MZI Act, the learned standing counsel submits. Since punishment prescribed thereunder is imprisonment which may extend to three years, or with fine, or with both, the request to quash the charge sheet cannot be sustained. 12. It is submitted on behalf of R2 that the request for deportation of the petitioners cannot be entertained at this stage in view of the fact that the learned Magistrate may have to alter the charge incorporating the charge under Section 7(5) r/w section 11 of the Territorial Waters, Crl. M.C. No: 3284 OF 2011 (A) -11- Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 also. Not only that, based on the report that may be obtained from CFSL, Hyderabad, with regard to the mobile phones, sim cards etc, sometimes further investigation may also be necessary. 13. It has been argued on behalf of ASG with vehemence pointing out the unsatisfactory way the charge sheet was laid without waiting for the report of the CFSL. Even now R3 does not say that R3 is intending to probe further on receipt of the report from CFSL. But it is inconceivable why the Central Government left the matter to be dealt with by the Kavaratti police alone and why the Central agency did not think of conducting any investigation into such serious matters. Of course, if the petitioners are only innocent fishermen who happened to enter into the exclusive economic zone of India unknowingly, then certainly a humane approach may have to be shown to them. But at the same time, the Central Agency may have to look into the matter since the safety and security of the Crl. M.C. No: 3284 OF 2011 (A) -12- nation may also be involved in the matter. It was already made clear by this Court, as per the earlier order, that the pendency of this case does not preclude any of the competent Investigating Agency to investigate into any other offence or any other aspect concerning the security of the Nation. 14. It was submitted on behalf of R2 that the State of Kerala is also equally responsible and duty bound to protect the sea shore and so the State ( R5) also should have taken interest in the matter. But R5 has shown no interest in the matter since the case was registered by Kavarahi Police. 15. As stated earlier the learned standing counsel for the NIA submitted that NIA is not in a position to take up the investigation in this case as no notification has been issued, under Section 6 of the N.I.A. Act, entrusting the investigation. As Union Government is a party to this case, if, in fact, the Union Government was/is serious about the matter, investigation by such a competent agency could have been thought of. But it has not been done so far. Still Crl. M.C. No: 3284 OF 2011 (A) -13- there is time for them to think over the matter to do the needful. Submissions were made before this Court, by the learned counsel who argued on behalf of ASG, highlighting the inept handling of the case by the Kavaratti Police and also pointing out the non-conduct of the investigation, concerning the security of the Nation; to find whether there was any conspiracy or whether anything was done by the accused affecting the safety and security of the Nation. As the Union Government is a party, if any information was to be obtained from or if any direction was to be issued by the Home Ministry, then it was for R2 to appraise the Home Ministry of the fact, if in fact R2 was/is having serious concern over the issue. Nothing has been produced before me to show that R2 has taken any such action in the matter. The learned counsel, Adv. Smt. Govindhu P. Renuka Devi, who argued on behalf of ASG, expressed her deep concern and anguish pointing out that the Police Officer of Kavaratti Police Station, who laid the charge sheet, did not bother to get the report from the CFSL, Hyderabad, and that there is Crl. M.C. No: 3284 OF 2011 (A) -14- something mysterious in the vessel entering into the Exclusive Economic Zone. R2, the Union Govt. has not bothered to get the copy of the report from CFSL, Hyderabad to find whether the mobile phone/sim cards were used by the petitioners for illegal/anti-national activities. It seems the required seriousness was not shown in this matter by R2. R2-the Union Government has to seriously think of doing whatever required in the matter to allay the apprehension, anxiety and anguish of the citizens with regard to the security of our Nation. The result therefore is: (a) Since the factors mentioned in the charge sheet would disclose commission of offence under Section 7(5) r/w section 11 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 also, the request to quash the charge against the petitioners is rejected. (b) The learned Judicial First Class Magistrate, Court-I, Ernakulam, will go through the final report/charge Crl. M.C. No: 3284 OF 2011 (A) -15- sheet and all other records produced before that Court and will see whether charge under Section 7(5) r/w Section 11 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976 is also to be framed against the accused persons. (c) The learned Magistrate will also see that the case is disposed of at the earliest in accordance with law. (d) Respondents will do whatever is required in the matter as has been mentioned in the preceding paragraphs. (e) Since this petition is the one filed by the accused, no further direction regarding investigation can be issued by this Court. This petition is disposed of accordingly. N.K. BALAKRISHNAN, JUDGE jjj