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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL) NO.7532 OF 2012

N. Kannapan …. Petitioner  

Versus

State (Union Territory) Andaman & Nicobar Islands …. Respondent

WITH  

SPECIAL LEAVE PETITION (CRL.) No.8286 of 2012

R. Chidambaram …. Petitioner  

Versus

State (Union Territory) Andaman & Nicobar Islands …. Respondent

WITH  

SPECIAL LEAVE PETITION (CRL.) No.8730 of 2012

Sanjay Choudhury …. Petitioner  

Versus

State (Union Territory) Andaman & Nicobar Islands …. Respondent

WITH  

SPECIAL LEAVE PETITION (CRL.) No.8876 of 2012

S. Namochivayam (In Jail) …. Petitioner  

Versus

State (Union Territory) Andaman & Nicobar Islands …. Respondent

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J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. On a complaint made by H.L. Tiwari FIR No.546 was registered at  

Police Station CCS, Port Blair on 21.6.2011.  The FIR and the action taken  

thereupon indicate, that a cargo ship (christianed, Gati Zipp) had set sail  

from Chennai and was to reach Port Blair on 20.6.2011.  It was alleged,  

that  the  aforesaid  cargo  ship  was  carrying  cartons  shipped  by  VMR  

Shipping Agency.  It was also alleged, that the cartons of VMR Shipping  

Agency contained unauthorized substances.  At the time of the receipt of  

the information, the cargo ship was allegedly berthed at Haddo Jetty, Port  

Blair.   Based  on  the  said  information  recorded  in  the  First  Information  

Report,  a raiding party  comprising of  one Inspector,  one Sub-Inspector,  

two Head Constables,  two Constables,  one police driver (of the rank of  

Head  Constable)  and  one  official  photographer  was  organized.   On  

reaching  Haddo  Jetty  the  raiding  party  associated  with  itself,  one  Sub  

Inspector, three Head Constables and one Constable of the SB-CID staff  

stationed there.  Two independent persons Nikhi Sakar, a Tally Clerk at  

Port Blair and Manoj Kumar were also associated with the raiding party.   

2. The raiding party, having reached Haddo Jetty, started looking for  

the  cartons/containers  shipped  by  VMR  Shipping  Agency,  which  had  

arrived at Port Blair in Gati Zipp.  The raiding party identified a container  

belonging to VMR Shipping Agency, which had been unloaded from the  

concerned cargo ship (Gati Zipp).   The container in question, was further  

being loaded into a truck bearing registration no.AN-01E-1847.  G..S. Babu  

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was supervising the loading operations of the aforesaid container.  As per  

the declaration in the manifest list, the carton in question, contained four  

drums  of  grease.   The  four  drums  found  in  the  container  were  

photographed by the official  photographer.   The said  drums were  then  

checked in the presence of independent witnesses.  The alleged contents  

of the four drums (revealed upon search by the raiding party) are being  

summarized hereunder:

i) First drum: Three packets of grease, 406 pieces of gelatine  sticks  and 122 bundles of electronic detonators (each bundle  containing 25 detonators, i.e., in all 3000 detonators).

ii) Second  drum:  405  gelatine  sticks  and  120  bundles  of  electronic detonators (in all 3000 detonators)

iii) Third drum: 823 gelatine sticks

iv) Fourth drum: 823 gelatine sticks.

The drums as well as the explosive substances recovered from the drums,  

were  counted  and  seized,  in  the  presence  of  independent  witnesses.  

Before that, five gelatine sticks were taken from the first drum and secured  

in  a  separate  packet  for  chemical  analysis.   Likewise,  five  electronic  

detonators  were  taken  from  the  first  drum  and  secured  in  a  separate  

packet for chemical  examination.   The person who was supervising the  

reloading of the container into the truck bearing registration no. AN-01E-

1847 allegedly identified himself as G.S. Babu.  He also disclosed, that he  

was employed as Manager by VMR Shipping Agency.   

3. With the assistance of G.S. Babu, and in the presence of the official  

photographer and the independent witnesses, the raiding party allegedly  

identified another container belonging to VMR Shipping Agency. The said  

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carton/container  had  also  been  off-loaded  from  Gati  Zipp.   As  per  its  

declaration in the manifest  list,  the second carton,  contained salt.   The  

aforesaid  container  was  also  opened  in  the  presence  of  independent  

witnesses.  It was found, that the contents of the instant container were  

enclosed in a large plastic bag.  The large plastic bag in turn contained  

smaller plastic bags. The small plastic bags had the inscription “imported  

coated drilled ammonium nitrate” and “net weight 50 kilograms” printed on  

them.  200 such small bags were allegedly found in the second container.  

The official photographer also clicked photographs of the contents of the  

second  container.   The  aforesaid  bags  contained  in  all,  10,000  kgs  of  

ammonium  nitrate.   The  aforesaid  ammonium  nitrate  was  taken  into  

possession.  Two samples of the contents of the small bags, weighing 50  

grams each, were taken for chemical analysis.   

4. Based on the recovery of the aforesaid explosive substances, further  

investigations were carried out.  These investigations allegedly revealed  

inter alia, the names of the petitioners before this Court.  Consequent upon  

the  discovery  of  the  petitioners  involvement  with  the  consignment  of  

unauthorized explosive substances, they were arrested.  Applications filed  

by the petitioners for bail remained unsuccessful.  The impugned orders in  

these petitions is the last such unsuccessful attempt, made on behalf of  

the  petitioners.   It  is  therefore,  that  the  petitioners  are  now before  us,  

praying for bail.

5. In  order  to  support  their  claim  for  release  on  bail,  it  was  the  

vehement  contention  of  the  learned  counsel  for  S.  Namochivayama  

(petitioner in SLP (Crl.) no.8876 of 2012), that the petitioner runs a grocery  

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shop, and cannot be associated with the allegations narrated in the First  

Information Report, as also, the alleged recovery of explosive substances.  

6. In so far as N. Kannapan, R. Chidambaram and Sanjay Choudhary  

[petitioners in SLP (Crl.) no. 7532 of 2012, SLP(Crl.) no. 8286 of 2012, and  

SLP (Crl.)  no.  8730 of  2012,  respectively]  are  concerned,  the  principal  

submission is, that they are all genuine quarry operators, possessing valid  

licences for carrying out quarrying operations.  They are officially issued  

explosives by the Andaman Public Works Department, which they use for  

extraction of boulders from their respective quarries, over which they have  

valid  licences.  Their  contention  in  nutshell  is,  that  the  action  of  the  

petitioners  in  possessing  and  using  explosive  substances  is  legal  and  

legitimate.  As such, the aforesaid three petitioners contend, that they are  

not involved in any unauthorized activity.  All the petitioners therefore pray  

for their release on bail.   

7. In support of their prayer for bail, it was pointed out, that the First  

Information  Report  in  this  case  was  registered  as  far  back  as  on  

21.6.2011,  the  first  chargesheet  in  the  case  was  filed  on  24.8.2011.  

Thereafter,  three  supplementary  chargesheets  were  filed  on  30.1.2012,  

10.4.2012  and  7.7.2012.   It  was  the  pointed  submission  of  all  learned  

counsel, that based on the successive filing of the supplementary charge-

sheets, their detention in jail was being unduly and intentionally prolonged,  

for  extraneous  considerations.   It  was  also  pointed  out  by  the  learned  

counsel for the petitioners, that all the petitioners have already been in jail  

for periods exceeding one year and, as such, they should be extended the  

concession of bail.

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8. It was also the contention of the learned counsel for the petitioners,  

that the confiscated explosive materials, even according to the contents of  

the First Information Report, and the three chargesheets referred to above,  

were admittedly being used for quarrying operations.  It  was submitted,  

that there is no allegation against any of the accused, that the contraband  

detained in Port Blair was for use in any terrorist or like activity/activities.  It  

was submitted, that keeping in mind the tenor of the insinuations contained  

in the First Information Report,  as also, the allegations contained in the  

chargesheets,  the  petitioners  should  not  be  dealt  with  as  if  they  are  

terrorists or are associated with terrorists.

9. Additionally, it was the contention on behalf of all the petitioners, that  

no explosive materials  were recovered from the premises of any of  the  

petitioners, and accordingly, none of the petitioners could be associated  

with the recovery of explosives allegedly made from the shipping yard at  

Port Blair.  It was submitted, that the petitioners have been detained, only  

on  the  basis  of  telephone  conversations,  and  deposit  of  cash  in  bank  

accounts, which have no nexus with the recoveries of explosives made at  

Port Blair.

10. We shall  endeavour  to  deal  with  the  pointed  allegations  levelled  

against  each  of  the  petitioners  hereinafter.   We  shall  deal  with  the  

petitioners, in the same sequence, in which submissions on their behalf,  

were addressed at the Bar.

11. First  and  foremost,  the  allegations  against  S.  Namochivayama  

(petitioner in SLP (Crl.) no.8876 of 2012). According to learned counsel  

representing the respondent state, G.S. Babu who was arrested when the  

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contraband was recovered at Haddo Jetty, Port Blair, as also, the driver  

Pankriacius  Ekka  (of  the  vehicle  bearing  registration  No.AN-01E-1847)  

revealed,  that  the bags (200 bags)  of  ammonium nitrate  seized by the  

raiding  party  on  21.6.2011,  were booked in  the name of  M/s.Karpaga  

Vinagar Stores, whose proprietor is the petitioner S. Namochivayama.  The  

investigations conducted by the police also revealed, that consignments of  

ammonium nitrate  used to be distributed by S. Namochivayama, to the  

other  co-accused,  who are involved in  quarrying  operations.   Even the  

driver, named above, had expressly indicated, that it was at the directions  

of the petitioner S. Namochivayama, that he had gone to Haddo Jetty, Port  

Blair,  for  collecting the consignment  under reference.   According to the  

evidence allegedly collected by the investigating agency, Muthuraja and  

Sadasivam  are  the  proprietors  of  VMR  Shipping  Agency.   They  were  

responsible for shipping the containers from Chennai to Port Blair.  Both  

the aforesaid  Muthuraja  and Sadasivam are related to the petitioner  S.  

Namochivayama.   It  is  also  the  case  of  the  prosecution,  that  another  

accused Raghavan, also a consignee of the gelatine sticks and detonators,  

was related to petitioner S. Namochivayama.  It is also asserted by the  

learned counsel  for the respondents,  that the evidence collected by the  

investigating agency clearly demonstrates the involvement of the petitioner  

S. Namochivayama, inasmuch as, the instant consignment was not a stray  

incident.   The  petitioner  S.  Namochivayama  is  believed  to  have  been  

indulging in such activities in the ordinary course of his business.  In view  

of  the petitioner  S.  Namochivayama being the distributor  of  ammonium  

nitrate,  gelatine  sticks  and  electronic  detonators  at  Port  Blair,  he  was  

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perceived  as  the  kingpin  of  the  alleged  activity,  at  Port  Blair.   And  

therefore, a prime accused in the alleged conspiracy.  Finally, it was the  

contention of the learned counsel for the respondents, that procurement of  

explosives of the nature in question (which were recovered by the police  

party on 21.6.2011), and their unauthorized sale and use, is a matter of  

serious concern, not only for environmental purpose, but also for national  

security.  It was pointed out, that explosives of the nature recovered at Port  

Blair  on  21.6.2011,  can  easily  be  used  for  other  allied  unauthorized  

purposes, with disastrous consequences.

12. The name of N. Kannapan (petitioner in SLP (Crl.) no.7532 of 2012),  

allegedly came to light, from the statement of witnesses recorded under  

Section  164  of  the  Code  of  Criminal  Procedure.   According  to  the  

statement  of  Magesh,  the  petitioner  N.  Kannapan  had  paid  a  sum  of  

Rs.3,20,000/-  to  him.   The  aforesaid  amount  was  deposited  by  the  

aforestated  Magesh  in  the  account  of  Selvam.   The  bank  account  of  

Selvam affirmed the truthfulness of the aforesaid assertion.  Call details  

reveal,  regular  conversation  between  the  petitioner  N.  Kannapan  and  

Selvam, which establishes their relationship.  N. Kannapan was also found  

to  be associated in the matter,  as Shanmugam in his  statement  under  

Section 164 of the Code of Criminal Procedure affirmed, that the petitioner  

N. Kanappan was using ammonium nitrate for quarrying operations.  In this  

behalf it was pointed out, that the Andaman Public Works Department had  

not issued any ammonium nitrate to N. Kannapan, but the investigation  

revealed, that he was using the same for quarrying purposes, at his own  

quarry.   It  was also submitted,  that  the findings of  the forensic  science  

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laboratory indicate, that the seized goods were “special category explosive  

substances”, and as such, the petitioner N. Kannapan had actually used  

such  explosive  substances,  without  due  authorization  in  quarrying  

operations,  and was liable  for  infringement  of  the provisions  under  the  

Explosive Substances Act, 1908.  It was also contended, that the explosive  

substances  under  reference,  were  brought  in  a  ship  in  a  clandestine  

manner.   In this behalf it was pointed out, that in the declaration manifest  

of  one of  the cartons,  the gelatine sticks and the electronic  detonators  

were described as grease.  The other container with ammonium nitrate,  

was described as salt (in the declaration manifest relating thereto).  It was  

submitted,  that  if  the  intentions  of  the  petitioner  N.  Kannapan,  were  

bonafide and genuine, there was no reason for clandestine transportation  

of the ceased explosives from Chennai to Port Blair.  The explosives in  

question, according to the learned counsel for the respondents, could be  

used for extraneous considerations, and had the potential  of  a massive  

disaster,  not  only  to  life  but  also  to  property,  on  the  Andaman  or  

neighbouring  islands.   It  was  also  pointed  out,  that  the  petitioner  N.  

Kannapan  had  a  regular  relationship  with  the  other  co-accused  in  the  

transaction.  The aforesaid relationship was allegedly established from call  

data registers, depicting a relationship between the petitioner N. Kannapan  

and the other co-accused.   

13. R.  Chidambaram  (petitioner  in  SLP  (Crl.)no.8286  of  2012)   is  

admittedly a quarry operator.  For quarrying operations, he is admittedly in  

possession of a valid quarry licence. He was issued 15 kgs. of gelatine  

sticks and 60 detonators for quarrying operations by the Andaman Public  

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Works  Department.   According  to  the  inferences  drawn,  from  expert  

opinion sought on the issue, it had emerged, that the gelatine sticks and  

detonators officially issued to the petitioner R. Chidamabaram, would result  

in excavation of 450 metric tonnes of boulders, whereas, the petitioner R.  

Chidambaram is stated to have extracted 1590 metric tonnes of boulders.  

This, according to learned counsel, was evident from the transport permits  

used by  R. Chidambaram, for transportation of the boulders.  According to  

the  learned  counsel  for  the  respondents,  the  boulders  excavated  by  

petitioner  R.  Chidambaram,  were  three  folds  more  than what  he could  

have, by using the explosives issued to him by the Andaman Public Works  

Department.   It  was also the contention of  the learned counsel  for  the  

respondents, that the petitioner R. Chidamabaram was using ammonium  

nitrate for quarrying activities, in the area over which he had a lease.  It is  

pointed out, that R. Chidambaram was not issued any ammonium nitrate  

by the concerned authority.  It is further submitted, that the statements of  

Armugam, Ganeshan, Sashi, Shanmugam, Mageshwaram and Karupaiah,  

recorded  under  Section  164  of  the  Code  of  Criminal  Procedure,  also  

revealed,  the  involvement  of  petitioner  R.  Chidambaram  in  the  

procurement  of  illegal  explosive  substances,  and  of  their  use  in  his  

quarrying  activities.   It  was  also  submitted,  that  the  aforestated  

Mageshwaram, during the course of his statement recorded under Section  

164 Cr.P.C. had stated,  that he (Mageshwaram) used to collect  money  

from the petitioner R. Chidamabaram, and used to deposit the same in the  

account  of  Selvam.   It  is  therefore  submitted,  that  the  involvement  of  

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petitioner  R.  Chidambaram  is  based  on  concrete  and  unrefutable  

evidence.

14. In the case of Sanjay Choudhary (petitioner in SLP (Crl.) no.8730 of  

2010), it was submitted by the learned counsel for the respondents, that  

his (of Sanjay Choudhary) position,  was exactly the same as that of R.  

Chidambaram, and as such, the factual position projected in the case of R.  

Chidamabaram,  should be considered as against  Sanjay Choudhary as  

well.  It is pointed out, that the said similarity is on the following aspects.  

The money collected by Nagesh and deposited in Selvam’s account.  The  

use of ammonium nitrate without allotment of the same by the competent  

authority. The statements of Shamugam, Ganesh and Sashi under Section  

164 Cr.P.C.  And the fact, that although he was allotted only 15 kgs. of  

gelatine sticks and 60 electronic detonators, which could at best result in  

excavation  of  450  metric  tonnes  of  boulders;   he  was  found  to  have  

extracted and transported 1905 metric tonnes of boulders, i.e., more than  

four times the amount which he could have excavated on the basis of the  

allotted explosives.

15. Having considered  the assertions  made at  the hands  of  the rival  

parties, we are satisfied, that there is prima facie material, to establish the  

involvement of  the petitioners in activities violating the provisions of  the  

Explosive Substances Act, 1908.  The consequences of such violation are  

extremely serious.  The minimum punishment on conviction, is 10 years  

rigorous  imprisonment.  For  more  serious activities,  the punishment  can  

extend to imprisonment for life, and with death penalty.  In the pleadings,  

and during the course  of  hearing,  we were informed,  that  some of  the  

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accused are still absconding.  Obviously all the accused are financially well  

placed.   Releasing  them  from  jail  at  the  present  juncture,  when  the  

prosecution  has not  even commenced  to  examine  the  main  witnesses,  

could prove detrimental to the eventual outcome of the trial. Atleast till the  

culmination of the evidence of the material witnesses, it is not proper to  

order the release of the petitioners on bail.  In the facts and circumstances  

noticed hereinabove, we hereby decline the prayer for bail made by the  

petitioners.   The  impugned  orders  passed  by  the  High  Court  are  

accordingly affirmed.

16. Having  disposed  of  the  matter  in  the  manner  expressed  

hereinabove, we consider it just and appropriate to direct the prosecution  

to first examine the material witnesses.  It shall be open to the petitioner(s)  

to move a fresh application for bail, after the examination of all the material  

witnesses.  Observations made in the instant order, on the merits of the  

controversy, shall not prejudice any of the parties during the course of the  

trial or thereafter.

17. Disposed of in the aforesaid terms.

   …………………………….J.     (Dr. B.S. Chauhan)

   …………………………….J.     (Jagdish Singh Khehar)

New Delhi; January 3, 2013.

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