The State Rep. By Inspector Of Police Q ... vs Mariya Anton Vijay

(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.

(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.

(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.

[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.

(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.

July 01, 2015.

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.

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.