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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.