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                 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.

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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

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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

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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.

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(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

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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

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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

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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

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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 5 th 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

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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

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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.   

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(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

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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

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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.

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(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

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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

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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

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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.

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(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

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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

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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

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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

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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

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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

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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

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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

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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.”

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(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

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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

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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

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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.”  

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(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

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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.  

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"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

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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

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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

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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. (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

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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 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

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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.

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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.

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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

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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

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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

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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

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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

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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.  

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(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

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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

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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,

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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

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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 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

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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).

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(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

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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.

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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)        

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