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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.