# BRANCH C.1.0., TIRUNELVELI RANGE, TAMILNADU v. MARIYAANTONVIJAY

- **Citation:** [2015] 7 S.C.R. 581
- **Court:** Supreme Court of India
- **Decided:** 2015
- **Case number:** Criminal Appeal No. 836 of 2015
- **Bench:** Vikramajit Sen, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/branch-c-1-0-tirunelveli-range-tamilnadu-v-mariyaantonvijay-30938
- **Pages:** 50

## Headnote

Code of Criminal Procedure, 1973: ss.3971482- Quashing
B
c
of proceedings/Revision - Vessel stationed at 3. 8 nautical
miles from baseline carrying huge quantity of arms and
ammunition without valid authorisation and documents -
Case registered against crew members under Arms Act, 1959 D
and other statutes - Investigation revealed that owner of the
vessel had credited 40,476 US$ from USA to India in the
account of A-43 and the amount was handed over to A-38 for
purchasing the bulk quantity of diesel which was transported
to vessel - Cognizance of offence - Quashing/revision of E
proceedings sought by accused persons - High Court held
that no prima facie case was made out under the Arms Act
and quashed the proceedings relating to offences
punishable under the Arms Act - Thereby, all the accused
except A-3 and A-38 were acquitted of the offences - On F
State's appeal, Held: 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 G
capable of being proved in evidence in accordance with law
- The very fact that huge quantity of arms and ammunition
were recovered from the possession and control of the crew
members from the vessel and that the crew members were
unable to satisfy their legal possession over such arms! H
581
582
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A ammunition with them by producing any evidence such as
licenses, certificates etc. it was sufficient to attract the
provisions of Arms Act - High Court while deciding the
matters virtually acted as an appellate Court as if hearing
appeals arising out of the final order and proceeded to
B 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 - This
approach of High Court while hearing the case u/s.4821397
C was wholly unwarranted and cannot be upheld.
Allowing the appeals, the Court
HELD: 1. The High Court while deciding the
o 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
E Acts, Rules and international treaties governing the
controversy. This approach of the High Court while
hearing the case under section 482 of the Code, was
wholly unwarranted, illegal and cannot be upheld.
[Paras 91to93] [618-D, F-H; 619-A]
F
2. Six reasons given by the High Court 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
G 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
H trial. [Para 94) [619-B-C]
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
583
MARIYA ANTON VIJAY
3. It cannot be disputed that prosecuting agency A
had collected material during investigation to erii:itlle 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 B
any conclusion as to whether a case of conviction or
acquittal is made out or not. The very fact that huge
quantity of arms and ammunition were recovered from
the possession and control of the crew members from
the vessel and further during investigation, the crew C
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 suffic

## Text

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[2015] 7 S.C.R. 581
THE STATE REP. BY THE INSPECTOR OF POLICE, 'Q'
A
BRANCH C.1.0., TIRUNELVELI RANGE, TAMILNADU
v.
MARIYAANTONVIJAY
(Criminal Appeal No. 836 of 2015)
JULY01, 2015
[VIKRAMAJIT SEN AND
ABHAY MANOHAR SAPRE, JJ.]
Code of Criminal Procedure, 1973: ss.3971482- Quashing
B
c
of proceedings/Revision - Vessel stationed at 3. 8 nautical
miles from baseline carrying huge quantity of arms and
ammunition without valid authorisation and documents -
Case registered against crew members under Arms Act, 1959 D
and other statutes - Investigation revealed that owner of the
vessel had credited 40,476 US$ from USA to India in the
account of A-43 and the amount was handed over to A-38 for
purchasing the bulk quantity of diesel which was transported
to vessel - Cognizance of offence - Quashing/revision of E
proceedings sought by accused persons - High Court held
that no prima facie case was made out under the Arms Act
and quashed the proceedings relating to offences
punishable under the Arms Act - Thereby, all the accused
except A-3 and A-38 were acquitted of the offences - On F
State's appeal, Held: 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 G
capable of being proved in evidence in accordance with law
- The very fact that huge quantity of arms and ammunition
were recovered from the possession and control of the crew
members from the vessel and that the crew members were
unable to satisfy their legal possession over such arms! H
581
582
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A ammunition with them by producing any evidence such as
licenses, certificates etc. it was sufficient to attract the
provisions of Arms Act - High Court while deciding the
matters virtually acted as an appellate Court as if hearing
appeals arising out of the final order and proceeded to
B 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 - This
approach of High Court while hearing the case u/s.4821397
C was wholly unwarranted and cannot be upheld.
Allowing the appeals, the Court
HELD: 1. The High Court while deciding the
o 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
E Acts, Rules and international treaties governing the
controversy. This approach of the High Court while
hearing the case under section 482 of the Code, was
wholly unwarranted, illegal and cannot be upheld.
[Paras 91to93] [618-D, F-H; 619-A]
F
2. Six reasons given by the High Court 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
G 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
H trial. [Para 94) [619-B-C]
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
583
MARIYA ANTON VIJAY
3. It cannot be disputed that prosecuting agency A
had collected material during investigation to erii:itlle 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 B
any conclusion as to whether a case of conviction or
acquittal is made out or not. The very fact that huge
quantity of arms and ammunition were recovered from
the possession and control of the crew members from
the vessel and further during investigation, the crew C
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 0
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. [Paras 95, 96] [619-0-G]
4. The questions as to whether the vessel in E
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 F
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 G
statutory authorities under the applicable laws so as to
enable them to possess and carry with them the arms/
ammunition including prohibited categories of arms/
ammunition on the vessel, what was the nature of
business in whic,h .the vessel was engaged and whether H
584
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A 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
B 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.
were some of the material
C 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.
0 In other words; none of these 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 exercise of its inherent jurisdiction. Similarly, the High
E 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 of the Code. [Paras 97, 98,
99] [619-H; 620-A-H; 621-A]
F
State of Madhya Pradesh vs S.B. Johari & Ors. (2008)
2 sec 57 - relied on.
5. The High Court erroneously went into the
questions of fact, appreciated the materials produced in
G 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
H facie case had been made out against any of the accused
for their prosecution under the Arms Act. This approach
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
585
MARIYA ANTON VIJAY
of the High Court while deciding petition under Section A
482 of the Code was wholly illegal and erroneous. [Para
103] (621-G-H; 622-A]
6. The High Court committed yet another error
when it recorded the finding that provisions of Arms Act s
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 was also not legally sustainable and deserves C
to be set aside for more than one reason. 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 D
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 E
Court of Section 45(a) is wholly unsustainable. 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. Section 45 of the Arms F
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 G
requirement of such clause then such accused cannot
be prosecuted for commission of any offence punishable
unqer the Arms Act. He is then held exempted from the
applicability of the Arms Act Mere perusal of the section
would go to show that it applies only to those arms/ H
586
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A 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
B necessary for him to prove that arms/ammunition stored
on the vessel were "forming part of the ordinary
armament or equipment" of the vessel. The qualifying
words to seek exemption are "forming part of the
ordinary armament or equipment of the vessel." The
C 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
0 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). The object of
Section 45(a) is to give exemption from applicability of
the Arms Act to those arms/ammunition, which form part
E 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
F carry such arms/ammunition on the vessel. [Paras 104
to 111] [622-B-H; 623-A-B, D-H; 624-A-B]
7. Now coming to the facts of the case in hand, firstly,
there was no evidence adduced by the accused to prove
G that huge quantity of arms and ammunition including
prohibited category of arms which were seized from the
ve_ssel 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
H not reached and in the meantime, the High Court
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.1.D., T. N. v.
587
MARIYA ANTON VIJAY
interfered with causing prejudice to the rights of the A
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. Therefore, this was a case where the High
Court should have dismissed the revision filed by the B
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 C
allow the defence to lead their evidence so as to bring
the case to its logical conclusion in accordance with law.
The law laid down by this Court in Bhajan Lal and S.B
Johari's case was not applied properly. The trial court, 0
which has seized of the case out of which these matters
arise, is directed to proceed with the case and decide
the same on merits in accordance with law.[Paras 112,
115, 117, 119] [624-C-E; 628-E-G; 629-C, E-F]
State of Madhya Pradesh v. S. B. Johari & Ors. (2008) 2
sec 57 - relied on.
State of Haryana & Ors v. Bhajan Lal & Ors. 1990
(3) Suppl. SCR 259:1992 Supp (1) sec 335;
Gunwantlal v. The State of Madhya Pradesh 1973 (1)
SCR 508: ( 1972) 2 SCC 194; Republic of Italy through
Amba~sador& Ors. v. U.0.1. & Ors. 2013 (4) SCR 595:
(2013) 4 sec 721 - referred to.
Case Law Reference
1990 (3) Suppl. SCR 259
referred to.
Para 45
(2008) 2 sec 57
· relied on.
Para 45
1973 (1) SCR 508
referred to.
Para 56
2013 (4) SCR 595
. referred to.
Para 72
E
F
G
H
588
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 836of2015
From the Judgment and Order dated 10.07.2014 of the
Madurai Bench of Madras High Court in Crl. O.P. (MD) No.
B 6719 of2014
WITH
Criminal Appeal No. 837 of2015
c
K. Ramamoorthy, Subramonium Prasad,AAG, Ram J.
Thalapathy, J. Janani, M. Yogesh Kanna for the Appellant.
C. A. Sundaram, Rohini Musa, Zafar lnayat, Hari V. B.,
Viju Abraham, Nazia Hasan, Sajith P. Warrier, P. B. Suresh,
D Vipin Nair, Vishnu S. Jain for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. (1) Leave granted.
E
(2) These appeals are filed by the State against the
common final judgment and order dated 10.07 .2014 passed
by the Madurai Bench of the Madras High Court in Crl.
R.C.(MD)No. 204 of2014 and Crl. O.P. (MD) No. 6719 of2014
whereby the High Court partly allowed the criminal revision
F 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
G 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
H petitions.
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
589
MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]
(4) The appellant is the State of Tamil Nadu represented A
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 s
received an information that one Vessel named "M. V. Seaman
Guard Ohio" was stationed at 10.8 Nautica1 miles from
Vilangusuhi Island of lndiafThoothukudi Port and 3.8 Nautical
miles away from the baseline promulgated by the Ministry of
External Affairs, Government of India vide Notification No. SOC
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 D
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 E
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.
F
(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 G
concerned agencies. The vessel was accordingly escorted
under the supervision of Captain KPP Kumar along with 3
armed guards of Indian Coast Guard Station. The vessel
reached the port around 13.25 hrs on 12.10.2013.
H
590
SUPREME COURT REPORTS
[2015) 7 S.C.R.
A
(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.
B The team members also interrogated the crew members
staying on the vessel. It continued till the next day (13.10.2013),
which inter a/ia 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
C 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
D Security Group Thoothukudi on 13.10.2013. Mr. NarendranAssistant 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
E knowledge while inspecting the vessel.
(10) On receipt of the report, imm~diatelythe Inspector
of Police Marine PS Tharuvaikulam registered a First
Information Report (in short "FIR") in Cr.No. 18/2013 under
F Section 25 (1 B) (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.
G
(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"
H Branch, CID for further investigation.
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
591
MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]
(12) The sleuths of CID Branch accordingly took up the A
investigation and visited the vessel on 16.10.2913 (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 B
enable them to carry out thorough investigation. It was revealed
that around 35 crew members were stationed on the vessel
out of which 11 were Indian national whereas remaining were
foreign nationals.
c
(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 D
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 E
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 F
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
andA-5, were also arrested, as none of the crew members, G
namely, A-3 to A-37, including the Captain of the vessel, who
was under legal obligation to carry with him the necessary
documents during voyage, were able to produce any document
such as licenses issued by the statutory authorities or
authorization orders issued by any competent,,authority as H
592
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A 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 thafthey were duly authorized to possess and carry these
arms/ammunition for their own use while on the vessel.
B
(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)
C and Selvam (A-42), crew members, were arrested on
20.10.2013. On 24.10.2013, Paul David Dennish Towers (A4), Lalit Kumar Gurung (A-6) and Radhesh Dhar Dwivedi (A7) crew members were taken to police custody for interrogation
where their voluntary confessions were recorded. Later on, they
D were also arrested.
(17) Pursuant to the disclosure made, the investigating
team again visited the vessel on 27.10.2013 and recovered
certain documents in relation to the seized weapons movement
E 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
F 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
G 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 (Ale No. 11041050004 770) who, in
turn, had withdrawn Rs. 7 lakhs on 09.10.2013 and handed over
the same toA-38 to enable him to purchase the bulk quantity
H diesel, which was transported to the vessel with the help of
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
593
MARIYA ANTON VIJAY [ABHAY MANOHAR SAP RE, J.]
fishing boats successfully.
A
(19) On 31.10.2013, the seized arms/ammunition were
sent to Tamil Nadu Forensic Sciences Department, Chennai
for analysis and diesel samples collected from 10 barrels were
sent to Hindustan Petroleum Corporation Limited, Chennai for B
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 c
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 D
Company" having its office at 1875 Eye Street, MW 51h floor
Washington DC-2006, USA and its Operations Director isA2-Mr. Mohamed Frajallah. BothA-1 andA-2 were responsible
for all clandestine acts and deeds done by them with the
connivance of crew members. Likewise, as mentioned above, E
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, F
who were crew members on the Board, were equally found
involved in joint operation with A-3 and A-4 and were
accordingly found responsible for commission of various
offences registered against them so also A-38 to A-45, who
were found involved in supply of bulk quantity of diesel and G
other items to the crew members for running 1vessel and,
t~erefore, found responsible for commission of the offences
registered against them under various Acts as detailed in the
FIR
H
594
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
(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,
B 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
C investigation officer against the respondents herein (A-1 to A45) on 30.12.2013 before the Judicial Magistrate Court No. 1
Thoothukudi bearing PRC No.1 of2014 seeking prosecution
of the accused persons (A-1 to A-45) for commission of
0 offences punishable under Sections 33, 35 and 3 read with
Section 25 (18) (a), Section 7 read with 25 (1-A), Section 10
read with Section 25 (1-8) (f) oftheArmsAct 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
E 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 120-8 of IPC.
F
(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) andA-2 (Mohamed Frajallah Director
Operations), who are the resident of USA (Washington) for
G 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 andA-2)
are still not apprehended despite issuance of non-bailable
warrants against them, which remain unexecuted. Similarly,
H A-43, A-4•f and A-45 are also not yet apprehended and
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.1.0., T. N. v.
595
MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]
.
absconding.
A
(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.
B
~·
>
(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 c
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 asA-3 toA-37 are concerned, they filed Crl.O.P. (MD) No. D
6719 of 2014 under Section 482 of the Code wherein they
also sought quashing of the iinal report/charge sheet filed
seeking to prosecute them for commission of various offences
detailed therein.
E
(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
against all the accused persons insofar as it related to offences
punishable undertheArmsActare concerned. It was held that F
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 Amis Act and
hence charge sheet/final report filed by the State prosecuting
agency for commission of various offences punishable under G
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 th~ filing of the H
596
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A 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
B 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.
C
(28) It is apposite to reproduce the operative portion of
the 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
D
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
E
Essential Commodities Act, 1955. DudinikValentyn
[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.
F
G
H
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
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
597
MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]
accused namely A-3 and A-38 will have to face prosecution in A
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 B
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.
C
(30) Aggrieved by the said judgment/order of the High
Court, the State has filed these appeals byway 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.
D
(32) The question which arise for consideration in these E
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?
F
(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 G
State, the appellant herein while assailing the ·legality and
correctness ofthe impugned order, urged several contentions.
He contended that the High Court erred in quashing ~he charge
sheet in relation to offences punishable under the Arms Act H
against all the accused. According to him, the entire approach
"
598
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A 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.
B
(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
C 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
o 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
E under the Arms Act rendering them liable to face the prosecution
in accordance 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
F 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.
G
(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
H that no prima facie case under the Arms Act against any of the
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.
599
MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.)
accused was made out or that allegation made in the charge A
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 accl)sed.
B
(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
importantly, the admitted fact that unlicensed and unauthorized
arms/ammunition in huge quantity were recovered from the C
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.
D
(40) Fourthly, learned counsel contended that the High
Court committed yet another jurisdictional error wl:ien it decided
the matter like an appellate court and in this process
appreciated the factual allegations made in the charge sheet E
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 F
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.
G
( 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 H
..
. .. .
~ .. .. . -
600
SUPREME COURT REPORTS
[2015] 7 S.C.R.
A
under Section 482 of the Code.
(42) lri the former category of cases, according to learned
counsel, the High Court is fully empowered to probe into the
issues offacts and the law as also empowered to appreciate
B 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
C 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
o 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
accordance with law so thcit the issue is brought to its logical
conclusion one way or other, i.e., either resulting in conviction
E or acquittal of the accused. · ·
(44) In this case, acco'rding to learned counsel, before
this stage could arrive, the High Court intervened without there
being any justification by invoking its inherent jurisdiction under
F 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•
G Court though mentioned the law laid down by this Court in State
of Haryana & Ors Vs Bhajall 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 -
faC'~S of the case in hand in the light of the law laid down in
H these two cases much less in its proper perspective.
·
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.1.0., T. N. v.
601
MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]
(46) It was, therefore, his submission that if the facts of A
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 the High Court would have upheld the charge sheet in its B
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 C
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 D
accused undertheArmsAct 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 E
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 bethe rarest F
of the rare.
(49) Ninthly, learned counsel contended that in this case
there should have been a trial which would have enabled the
prosecution to adduce evidence in support of the charges and, G
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.