Full Judgment Text
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PETITIONER:
STATE REP. BY DY. SUPDT. OF POLICE,CBI., VISAKHAPATNAM,ANDHR
Vs.
RESPONDENT:
V JAYACHANDRA @ EZHU VIRAL AND OTHERS.
DATE OF JUDGMENT: 13/03/1997
BENCH:
G.N. RAY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
NANAVATI, J.
This appeal filed under Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter
referred to as the ‘TADA Act’) is directed against the
judgment and order dated 29.6.96 passed by the learned
Sessions Judge and Designated Judge, Viskhapatnam in
Sessions Case No.31 of 1994. The State has come in appeal as
the learned Judge acquitted all the nine accused.
On 13.1.93 at about 11.10 P.M., the Officers-in-Charge
of the Coast Guard vessel named ’c.g.s. Vivek’ of the
Government of India noticed one vessel/ship on high seas,
about 440 nautical miles South-East of Madras. It was not
displaying its Nationality flag. It was displaying ’NOT
UNDER COMMAND’ lights. It was found drifting and was not
responding to radio calls. After repeated radio calls V.
Jayachandra @ Ezhu Viral (A-1) informed that he was the
Master of that vessel but did not give the correct name of
the vessel or the call sign and other details regarding the
vessel. c.g.s. VIVER, therefore, entertained suspicion about
the nationality and intentions of that ship and demanded
boarding for verification. It was the prosecution case that
the Master of that ship threatened c.g.s. Vivek of dire
consequences if an attempt for boarding was made, by saying
that it was carrying 110 tonnes of explosives. It then
started fleeing away by taking a zig-zag course. After a
chase for about 2 1/2 hours, it agreed to sail towards
Madras, alongwith c.g.s. Vivek, though it did not agree for
its inspection. On 14.1.93, INS KIRPAN of Indian Navy joined
C.G.S. VIVEK and escorted the said vessel to Madras. A-1
revealed that the name of the ship was mv. YAHATA and it was
carrying 10 A.K. 47 rifles, one FNC rifle, one Rocket
Propelled Gun and about 25 hand grenades and huge quantity
of oil and explosives. On 16.1.93, by about 7.45 A.M., mv.
YAHATA was anchored about 8 Nautical Miles away from Madras
Coast inside the Indian territorial waters. All the persons
on board of mv. YAHATA were ordered to assemble on the foxle
side without any arms and explosives to enable the Indian
Navy and Coast Guard ships to exercise their right of visit.
The Master and other persons on bard again denied this right
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and took their positions with their AK 47 rifles. They also
fired shots from Rocket Propelled Gun launcher and small
arms and after some time set fire to their ship by using
explosives. A-1 to A-9 jumped over board and rescued by
Indian Naval and Coast Guard vessles. The vessel got badly
damaged by fire. When it was in the danger of sinking, the
Naval Commandos boarded the vessel and recovered two dead
bodies, two assault rifles and a hand grenade. The vessel
sank at about mid night.
The investigation revealed that the real name of the
vessel was YAHATA but deliberately A-8, nuder instructions
of A-1, had obliterated the first letter ‘Y’ and the last
letter ‘A’ in order to avoid detection of its correct name
and identity. It was registered at the Embassy of Honduras
in Singapore showing the port of registration as SAN LORENZO
in Hondures. The said vessel belonged to LTTE and A-1 was
its Master. A-2 was the member of the Black Sea Tiger Unit
and LTTE and was a Cadet in the vessel. A-3 was the Chief
Engineer and A-4 to A-9 were the crew. A-10 to A-19 were
hardcore LTTE militants who died as a result of the fire and
sinking of the ship. Out of them, A-12 (Krishnakumar @
Kittu) was one of the top LTTE leaders. The investigation
also revealed that it was on a clandestine voyage and was
carrying explosives for terrorist operations. Soon after the
said vessel was intercepted by C.G.S. VIVEK all the 19
accused had conspired to throw over board all the boxes
containing explosives and to destroy evidence as regards
their links and not to surrender to Indian Navy or to allow
them to inspect their vessel. After the said vessel was
brought near the Madras Port they had fired shots at
Naval/Coast Guard Officers in order to prevent them from
exercising their right of inspection and discharge their
duty. They had set fire to the ship in order to destroy
evidence and to strike terror amongst people including Naval
Officers on board the Indian Naval/Coast Guard ships who
were involved in the said operation. With these allegations
the C.B.I. chargesheeted A-1 to A-9 and ten others who had
died, in the Court of the Sessions Judge and Designated
Judge at Visakhapatnam for the offences punishable under
Section 120-B read with Sections 201, 353 and 438 IPC,
Section 27 of the Indian Arms Act, Sections 3,4 and 6 of
Indian Explosive Substances Act, Sections 3(2) and (3) of
the TADA Act, and Rule 11(a) of the TADA Rules.
On consideration of the material produced before him
the learned Judge framed charges not only for the conspiracy
to commit the said offences but also for the offences
punishable under Sections 201, 438 and 353 of IPC read with
Section 34 IPC, Sections 3(2) TADA Act read with Section 34
IPC and Section 3(3) of TADA Act. A-2 was individually
charged under Section 27 of the Indian Arms Act and Section
6 of Indian Explosive Substances Act, 1908. A-1 to A-9 were
also charged under Rule 11(a) of the TADA Rules.
In order to establish its case the prosecution examined
all the material witnesses and also produced supporting
documents. A-1, in his examination under Section 313 of the
Cr.P.C., admitted that he was the Captain of the ship,
YAHATA, that at the material time the ship was drifting and
was exhibiting ’NOT UNDER COMMAND’ lights and was not flying
any national flag. He, however, denied that when contacted
by c.g.s. Vivek he did not respond to radio calls for a long
time and ultimately when he responded he did not give the
correct name of the vessel or the call sign and other
details regarding the vessel. He also stated the ship was
not flying any nationality flag as it was night time and,
therefore, it was not necessary to fly the same. He also
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denied that c.g.s. Vivek was informed that YAHATA was an
LTTE vessel, that it was carrying arms and ammunition and
that he had threatened the Officer-in-charge of Vivek with
dire consequences if they came near his ship. He explained
that at the material time the vessel was drifting and was
exhibiting ’NOT UNDER COMMAND’ lights as he was waiting for
passengers to come from Sri Lankan coast. He admitted that
he had not agreed to the demand for inspection as the
Officers-in-Charge of Vivek had no right to do so. As
regards the incident of 16.1.93 he denied that any shot was
fired from his ship at c.g.s. Vivek or INS Kirpan. On the
contrary, he stated that c.g.s. Vivek and INS Kirpan had
fired shots it caught fire and got sunk. He also stated that
in order to cover up their illegal acts a false case was
made out by the Officers-in-Charge of c.g.s. Vivek and INS
Kirpan. The other accused also adopted this version of A-1
in their examination under Section 313 of the Code. In
addition, they denied any knowledge about the conversation
between the Officers-in-Charge of c.g.s. Vivek and A-1.
The accused also submitted a written statement wherein
they further stated that they had not denied the demand for
inspection but had insisted that inspection be done in
presence of a neutral umpire. They also stated that the
persons other the crew, who were found present in the ship,
had boarded the ship claiming that they belonged to LTTE.
They also stated that they were not carrying arms and
ammunition in the ship and there were petrol batteries in
it. They also denied that they had made confessions
voluntarily and that they had made confessions voluntarily
and that they were true.
The learned Sessions Judge held that interception of
m.v.Yahata and demand for its inspection by c.g.s. Vivek
were not justified as A-1 had, though belatedly, given the
correct nationality of his ship. Therefor, c.g.s. Vivek and
INS Kirpan were also not justified in forcing m.v. Yahata to
proceed towards Madras coast. The learned Judge did not
believe the evidence of PW1, PW9, PW12, PW14 and PW22 that
c.g.s. Vivek and INS Kirpan had fired only warning shots
without explosives and held that it was not established
beyond doubt that m.v. Yahata had opened fire with Rocket
Propelled Gun launcher and small arms at the Indian Naval
ships. He also held that mv. Yahata probably caught fire due
to the shots fired by the Indian Naval ships and not because
of any act of the accused. He also did not believe the
prosecution evidence that the accused had thrown the boxes
containing arms and ammunition into the sea. On the basis of
these findings he further held that the prosecution has
failed to establish any of the charges levelled against the
accused.
Mr. M.S. Usgaonkar, learned Additional Solicitor
General contended that the learned Judge has not correctly
contended appreciated the evidence and also the correct
legal position as regards the right of Public Armed Vessels
to demand boarding for inspection when there is reasonable
ground for suspecting that the other ship is without
nationality. He submitted that the trial court has recorded
a finding that at the material time m.v.Yahata was not
flying any flag of any nationality. It was drifting,
displaying ‘NOT UNDER COMMANDS’ lights and was not
responding to radio calls. He also submitted that there is
sufficient and relaible evidence on record to prove that A-1
had not given the correct name of the vessel or the call
sign and certain other details regarding his vessel.
Therefore, the Naval Officers-in-Charge of c.g.s. Vivek and
INS Kirpan had a right to demand boarding for inspection
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particularly when they were also informed that it was
carrying huge quantity of arms and ammunition. He, however,
fairly conceded that the evidence on record is not
sufficient to come to the conclusion that the accused had
hatched a conspiracy to commit the offences specified in the
charge. He also fairly conceded that the evidence on record
is not sufficient to establish any offence under the TADA
Act cannot come to the help of the prosecution. However, he
submitted that the evidence led in the case clearly
establishes the offences under Sections 353 and 437, both
read with Section 34 IPC and the contrary finding recorded
by the learned Designated Judge is incorrect.
The learned Additional Solicitor General drew our
attention to Articles 91, 92 and 110 of the U.N. Convention
on Law of Seas, 1982, to which India is a signatory. Under
Articles 91 and 92 of the Convention it is mandatory for a
vessel to fly its nationality flag. Under Article 110 a
Public Armed Vessel if it encounters on high seas a foreign
ship, and has a reasonable ground for suspecting that the
ship is without nationality, it has right to intercept and
demand boarding for verification. Applicability of these
provisions was not disputed by the accused. It was also not
disputed by the accused that at the material its
nationality. Having gone through the evidence it appears to
us that the learned Designated Judge has not correctly
appreciated the evidence of P.W.12, Commanding Officer of
c.g.s. Vivek and P.W.22, Captain of INS Kirpan as regards
the facts and circumstances under which they had demanded
boarding for the purpose of verification. However, in view
of the corcession made by the learned Additional Solicitor
Genral that in view of the insufficient evidence on record
the charge of conspirary has rightly been not held proved,
it is not necessary to re-appreciate the evidence and record
any finding with respect to the right or justification for
demanding boarding.
After re-examining the evidence we also find that the
prosecution has filed to establish any offence punishable
under the TADA Act or the Rules framed thereunder. Even
though it is found by the learned Designated Judge, as a
matter of fact, that m.v.Yahata was carrying huge quantity
of arms and ammunition none of the accused can be said to
have committed any offence under the Indian Explosive
Substances Act and the Indian Arms Act.
The only point which now survives for our consideration
is whether the prosecution has established the offences
punishable under Sections 353 and 437, both read with
Section 34 IPC. the officers of the c.g.s. Vivek and INS
Kirpan who were insisting upon boarding m.v. ‘Yahata’ were
performing their duty as they bona fide believed that they
had a right to do so. They were demanding boarding and the
accused were refusing the same. The firstly denied that the
officers of the Public Armed Vessels of the Government of
India, had any right to intercept or inspect their vessel as
it was sailing on high seas beyond 200 nautical miles from
Indian baseline. Thereafter they also stated that they had
not denied inspection of their vessel but had only insisted
for a neutral umpire. Though the accused had stated that
they were unjustly forced to take their vessel near the
Madras Sea Coast we do not find any evidence or even
suggestion in the cross-examination of the prosecution
witnesses that either c.g.s. Vivek or INS Kirpan had
threatned to use Madras Coast. As regards what happened in
the morning of 16.1.93 the defence of the accused was that
none of the accused had fired at the Indian Naval vessels
when they were making an attempt to board their vessel. The
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evidence of PW9, PW12, PW13, PW14 and PW22 is to the effect
that at about 10.00 A.M. they had started the operation for
boarding m.v. Vivek and INS Kirpan with a view to divert the
attention of the accused. There was retaliatory fire from
m.v. ’Yahata’. PW22, the Captain of INS Kirpan has clearly
stated in his evidence that in spite of his direction to
m.v.’AHAT’ to bring all their men to fore-peak without arms
and ammunitions and explosives. They came to the aforesaid
fore-peak fully armed. He has also stated that he had
noticed ’RPG LAUNCHER’ was being trained by the accused
against his ship. He has also stated that when he fired
warning shots to make them surrender and divert their
attention for facilitating the boarding operation there was
retaliatory fire from m.v.’AHAT’. Nothing has been brought
out in the cross-examination of this witness which would
create any doubt regarding his credibility and reliability
of his version. His evidence has been disbelieved by the
learned Designated Judge on the ground that if really the
occupants of m.v.Yahata had in intention to resist boarding
by using fire arms they would not have obeyed the Kirpan to
sail towards Madras Coast. The learned Judge has also
disbelieved his evidence because there was no mention of
retaliatory fire from m.v.’Yahata’ in the complaint, Exhibit
P-1 given by PW1 who was then the Captain of INS Savitri and
also because PW1 and PW12 (the Caption of c.g.s. Vivek) had
not stated anything about the retaliatory fire in their
evidence before the court. The learned Judge failed to
appreciate that it was decided that INS SAVITRI was to be
used only as a full-fledged hospital vessel in case there
were casualties. It is, therefore, quite likely that he had
not noticed retaliatory fire from m.v. Yahata.
Significantly, he had also not stated in his complaint
anything about the warning shots fired by c.g.s. Vivek and
INS Kirpan, though admittely, such shots were fired.
Therefore, on the basis of the omission in the complaint,
Exhibit P-1 it was not proper to discard the evidence of
PW22. It is quite likely that PW1 and PW12 did not notice
the retaliatory fire from m.v.Yahata because of their
respective positions and because they were engaged in doing
their jobs. PW9 has supported PW22 but the learned Judge
discarded his evidence as this witness had not stated before
the police that he had seen any projectile emerging from
m.v.Yahata Having carefully gone through the evidence of
this witness we find that it was not put to him that he had
not so stated before the police. What he has stated in
cross-examination is that he had noticed splash of water on
the right side of INS Kirpan and he had also seen the
projectile emerging from m.v.‘yahata’. The only suggestion
put to this witness was that he had merely suspected firing
from m.v.’Yahata’ on the basis of splash water near INS
Kirpan. The learned Judge therefore, not right in discarding
the evidence of this witness who has clearly supported the
evidence of PW22 on this point. PW13 was the Commanding
Officer of INS SD BT. 56. He has also stated that there was
retaliatory fire from m.v. ‘AHAT’ when he was on the deck.
He has further stated that seeing the retaliatory fire he
ducked down otherwise he would have been hit. What this
witness has stated in his cross-examination is that "I did
not specifically state in my statement to the C.B.I.
Officers that on seeing firing shots from ‘M.V.AHAT’ I
ducked down but I stated that I heard ‘Phat-Phat’ sound from
‘M.V.AHAT’ and ducked down which according to me is the same
thing as seeing firing from the ‘M.V.AHAT’." Evidence of
this witness has been disbelieved on the ground that it was
not likely that the occupants of m.v.‘AHAT’ would have
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ventured to fire at the Indian Naval ships and also because
this witness had not specifically stated before the police
that the shots which were fired by the Indian Naval ships
were warning shots only. These reasons can hardly be
regarded as good reasons for discarding his evidence. So
also, it was not proper to discard the evidence of this
witness because PW14 who was also on INS SD BT. 56 did not
say anything in his evidence regarding retaliatory fire from
m.v.‘YAHATA’. From his evidence it clearly appears that he
was not even present when the briefing session for the
boarding operation was conducted. Therefore, it is quite
likely that he was assigned some other function and was busy
with his own work when m.v.‘YAHATA’ had fired in
retaliation. There is nothing on record to show that he was
with PW13 or on the deck when m.v.‘YAHATA’ had indulged in
retaliatory fire.
We have perused the evidence of PW9, PW13 and PW22
closely on this point and we find no reason to disbelieve
the same. The reasons given by the learned Designated Judge
for not believing this part of the prosecution evidence are
not at all proper and sufficient. We, therefore, hold that
the prosecution has satisfactorily established that the
accused had used criminal force against the Indian Naval
Officers while they were performing their duty and that was
done with an intention to prevent or deter them from
discharging their duty. They are, therefore, held guilty of
having committed the offence punishable under Section 353
IPC read with Section 34 IPC.
We also hold that the finding of the learned Designated
Judge that m.v.‘YAHATA’ was, in all probability, hit by a
shot fired from one of the Indian Naval ships and,
therefore, caught fire and got destroyed is against the
weight of evidence on record. The prosecution witnesses have
deposed that the shots, which were fired by the Indian Naval
ships, were only warning shots and they did not contain
explosives. The learned Judge has disbelieved this evidence
for the reason that in their earlier version before the
police they had not stated that the shots, which they dad
fired, were only the warning shots and also because the
investigating officer had not seized gunnary reports
maintained by the ships. The learned Designated Judge failed
to appreciate that there was hardly any reason for the
Officers-in-Charge of Indian Naval ships to fire shots with
explisives at m.v.‘YAHATA’ as their object was not to
destroy that ship but to facilitate boarding on that ship by
the Commandos. The prosecution witnesses appear to be right
in their say that the warning shots were fired with a view
to make the accused surrender and also to divert their
attention from the Commandos who were being sent to board
that vessel. The prosecution witnesses have stated that they
had seen smoke coming out from m.v.‘YAHATA’ after some time.
In view of the facts and circumstance of the case it can be
reasonably inferred that the accused, finding that it was no
longer possible to avoid boarding of their vessel by the
Indian Naval Officers, thought it proper to destroy their
ship in order to avoid detection of the true state of
affairs and consequential action. In our opinion, the
prosecution can be said to have satisfactorily established
that accused had, in further of their common intention,
destroyed their ship. We, therefore, hold that the accused
thereby have committed and offence punishable under Section
438 IPC read with Section 34 IPC.
In the result, this appeal is partly allowed, acquittal
of the accused under Sections 353 and 438 IPC is set aside
and they are convicted for those offences. For the offence
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punishable under Section 353 IPC they are ordered to suffer
rigorous imprisonment for a period of three years. Both the
sentences are ordered to run concurrently. The acquittal of
the accused for the other offences, with which they were
charged, is maintained.