w w w . L a w y e r S e r v i c e s . i n



P. NEDUMARAN VERSUS UNION OF INDIA


Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

    W. P. 3792 Of 1993

    Decided On, 14 June 1993

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE M.N. RAO & THE HONOURABLE MR. JUSTICE S. DASARADHA RAMA REDDY

    For the Appearing Parties: B.Nalin Kumar, K.G.Kannabhiram, K.Jithendra Babu, Advocates.



Judgment Text

M. N. Rao, J.


( 1 ) THESE two Habeas Corpus applications are interconnected: facts alleged and

questions of law arising for consideration also are common apart from the fact that

the petitioner is the same and so, we are inclined to dispose of both the cases by

this common judgment.


( 2 ) THE petitioner - Sr. P. Nedumaran - swears that he is a former member of the

Tamilnadu Legislative Assembly and a supporter of the cause of the Sr. Lankan

Tamils. He claims that the mother of Captain V. Jayachandran, one of the detenus,

instructed him to file. W. P. No. 3792 of 1993 and the other detenus also instructed

him through his counsel, Sr. S. Dorai Swamy, who interviewed them on 5-3-1993 at

Visakhapatnam, to file the writ petition.


( 3 ) W. P. NO. 3792 of 1993 was filed for release of nine accused - (1) M/s. V.

Jayachandran, (2 ). K. Satkunalingam, (3) V. Krishnamoorty, (4) K. Nayagan, (5) S.

Sivarajan, (6) S, Indalingam, (7) A. Subhas Chandran, (8) S. Balakrishnan and (9) T.

Mohan - against whom F.. R was registered by the Harbour Police station,

Visakhapatnam in Crime No. 4 of 1993 under Section 25 of the Arms Act, 1959,

Sections 3 and 5 of the Explosive Substances Act, 1908, Sections 3 and 4 of the

Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short the tada Act),

Section 436 (437? ). P. C. and Section 174 Cr. P. C. The F.. R. is pending with the

designated court (Sessions Judge) under the TADA Act and by virtue of the orders

passed by the learned Judge, all of them are in judicial custody in the Central Jail,

Visakhapatnam.


( 4 ) W. P. N. 3793 of 1993 was filed for production of Sadasivam Pillay Krishna

kumar alias Kittu (hereinafter referred to as Kittu) before this court and to set him at

liberty after declaring his arrest and detention as illegal and void.


( 5 ) TWO interlocutory applications also were filed in the two writ petitions praying

for the immediate release of the nine detenus as well as Kittu on bail.


( 6 ) SEEKING identical reliefs, the petitioner has filed earlier two H. C. P. Nos. 132

of 1993 and 134 of 1993 in the Madras High Court. During the pendency of the

above H. C. Ps. by an interlocutory order, the Madras High Court directed the deputy

Superintendent of Police, Central Bureau of Investigation. , visakhapatnam to permit

the counsel for the petitioner to interview the detenus on 5-3-1993 when they were

in police custody in Visakhapatnam. Subsequently, the two H. C. Ps. were dismissed

by a Division Bench of that court by a common order dated 10-3-1993 without going

into the merits. H. C. P. No. 134 of 1993 was dismissed on grounds inter alia that

the records are with the Sessions Court, visakhapatnam and so it would be more

appropriate for the court in Andhra pradesh to consider the matter. H. C. P. Nc. 132

of 1993, which pertained to production of Kittu, was dismissed on the ground that

records were common in both the cases and in the counter-affidavit, the stand taken

by the respondents, was that at no point of time, Kittu was taken into custody.


( 7 ) IN W. P. No. 3792 of 1993, the first respondent is the Union of India

represented by the Secretary, Ministry of Defence. , the second respondents the

secretary, Ministry of Home Affairs and respondents 3 and 4 are the Deputy

superintendent of Police, Central Bureau of Investigation, Visakhapatnam and the

Superintendent of Police, Central Prison, Visakhapatnam respectively. In w. P. No.

3793 of 1993, besides the Union of India represented by the Secretary, ministry of

Defence, the Secretary, Ministry of Home Affairs and the Deputy superintendent of

Police, Central Bureau of Investigation, Visakhapatnam. The director-General of

Police, Tamilnadu is shown as one of the respondents. The superintendent of Police,

Central Prison, Visakhapatnam is not a respondent, presumably since there is no

allegation that Kittu was lodged in the Central prison, Visakahapatnam.


( 8 ) IN the two affidavits filed by the petitioner in both the writ petitions, it was

alleged that the nine detenus are crew-men employed in the ship M. V. Yahata,

which was registered at San Lorenzo in Honduras and one of the detenus - V.

Jayachandran - is their Captain since 8-9-1992. The vessel - M. V. Yahata - was

engaged in transport of essential commodities like petrol, diesel and medicines to

the northern part of Sri Lanka as there was no supply of medicines and petrol in that

area by the Sri Lankan Government and the cost of petrol at Jaffna is Rs. 750/- per

litre. The organisation "liberation Tigers of Tamil Eelam" (for short L. T. T. E.) is the

real ruler of the northern part of Sri Lanka and so it had to get petrol and medicines

from foreign countries. The vessel was engaged in transporting diesel, petrol and

medicines for over four months prior to 7-1-1993 without any interruption. On 7-1-

1993 at Puberhala Island in the Malaca Straits, kittu and nine other members of the

L. T. T. E. boarded the vessel and at that time, there were no explosive substances

in the ship ; it was only carrying large quantities of petrel, diesel and medicines. On

13-1-1993, M. V. Yahata was in the international waters at a latitude of 6 North and

longitude of 8 East about 290 miles East of Hambanotota in South Sri Lanka and 440

miles South East of South India. The Ship was facing towards Trincomale. The

Captain stopped the ship and allowed it to drift waiting for a signal that there was

no interruption on the way since they wanted to reach Jaffna on 16-1-1993. The

sign "not under control" signifying that the ship was adrift was put up by the

Captain - V. Jayachandran - as was the usual practice. INS 38 - Viveka, without

flying any flag, came closer to M. V. Yahata and contacted her Captain V.

Jayachandran over the radio whether she (the ship) was bound for Trincomale and

on receiving an affirmative reply, a further enquiry was made whether there was

any passenger on board the ship. When Jayachandran gave a negative reply, the

captain of the Indian Ship (INS, 38 - Viveka) asked over the radio whether they

were all Sri Lankan Tamils for which an affirmative reply was given. Thereafter, the

Captain of INS - Viveka wanted to board M. V. Yahata to find out whether there was

any passenger. When Capatin Jayachandran asked the Capatain of the Indian vessel

who he was, the latter replied that he belonged to the international Patrol and

wanted to know why he (Captain Jayachandran) had put up the sign "not under

command". Thereafter, Jayachandran disclosed to the captain of the Indian ship

that he had 100 tons of explosive substances and threatened him not to approach

his vessel. Until then, the Indian ship did not disclose her identity and so

Jayachandran and his crew suspecting that the ship was of the Sri Lankan Navy,

decided to attack it. When the Captain of the Indian ship disclosed heridentity Kittu

instructed Jayachandran "we should not attack an Indian ship or the Navy at any

cost even if we lose bur lives". But for the directions of Kittu, the crew-men of M. V.

Yahata would have struck at INS 38 - Viveka. After knowing the identity of the

Indian ship, Kittu talked to her captain without disclosing his identity. When the

Captain of the Indian Ship enquired at to who he was, Kittu replied that he could be

called as Marran and he would disclose his identity later on. So saying, he asked the

Captain of the Indian ship why their ship was stopped. The Indian Captain replied

that he did not know and asked the detenus to sail the ship to the Indian coast

failing which, she would be attacked. The detenus agreed to that since the vessel

was loaded with petrol and diesel and any attack by the Indian Navy would result in

the ship going up in flames but the condition they insisted upon was that they would

not enter the Indian territorial waters and would not come out of the ship. It was

around mid-night when the ship -M. V. Yahata - sailed towards the Indian coast.

Around 6. 00 A. M. on the next day. e. , 14-1-1993, the detenus noticed another

ship - INS Papa - 44 Kirubani - stationed at 390 nautical miles south East of Madras

and even if they had escaped from INS 38- Viveka, they would have been surely

captured by INS Papa-44 Kiruban. The position of INS papa indicated that the Union

of the India had information that Kittu was travelling in the ship - M. V. Yahata - and

in order to capture him and prevent him from proceeding to Jaffna, the Indian Naval

ships were stationed at those points. Kittu disclosed over the rad io his identity to

the Captain of INS Papa and informed that he was on his way to meet Mr.

Prahhakaran, their leader, carrying some peace messages to be sorted out by the

leader. The Captain of INS Papa asked the detenus to sail to Madras and when Kittu

enquired for the reason, the captain replied that only on reaching Madras, he could

tell the reason. On the morning of 16-1-1993, the ship - M. V. Yahata -reached 16th

mile east of Madras near Ennore and after anchoring the ship, the detenus refused

to move into the Indian territorial waters.


( 9 ) IN the meanwhile, another Indian ship - INS Savirri - also approached m. V.

Yahata. The Captain of INS Papa asked Kittu and others to surrender but refusing to

do so, Kittu informed the Indian Captain that they could bring. B. officials and some

other officials to Madras for talks. Rejecting this request, the captain of the Indian

ship informed Kittu that he would give time till 6. 00 in the morning for surrender,

failing which, their ship would be captured. Exactly at 6. 00 A. M. on 16-1-1993, M.

V. Yahata - the ship of the detenus - was circled by two helicopters and three Indian

Air Force fighters. At that time, Kittu was on the roof deck and Captain V.

Jayachandran at the fore-castle deck of M. V. Yahata. The Captain of the Indian ship

directed the detenus to come near the bridge and stand for the surrender and from

a distance of about 1,000 metres. INS Papa opened file on M. V. Yahata.

Immediately, Kittu directed the L. T. T. E. members to keep cynaide capsules ready

but asked the crew-men to jump into the sea and save their lives telling them that

they should not sacrifice their lives since they were crew-men and engaged only to

work in the ship. When the crew-men refused to jump, they were pushed by the L.

T. T. E. members into the sea. Thereafter, the crew-members were rescued by the

Indian Navy and were taken to another Indian ship - INS Savitr. Kittu was taken into

custody by the respondents on 13-1-1993 and he was last seen alive in the custody

of the respondents by the crew-mem of M. V. Yahata at 6. 30 A. M. on 16-1-1993

and thereafter, their ship was on flames.


( 10 ) IT was further alleged in the affidavits that because of the firing by INS papa,

the ship - M. V. Yahata - caught fire immediately. Two persons - Krishna murthy and

Shivalinga Keshavan - were injured because of the firing by INS papa. Later on, the

detenus were brought to Visakhapatnam and produced on 18-1-1993 before the

designated court at Visakhapatnam and Crime No. 4 of 1993 was registered against

them. It was also alleged that when Kittu boarded the ship on 7-1-1993, he was

carrying luggage containing 1 1/2 million U. S. dollors, some packages of important

documents intended to be handed over to mr. Prabhakaran, the leader of L. T. T. E.

and the visit of Kittu to Jaffna was only to convey a peace message to Prabhakaran,

which was intended to solve the Sri lankan Tamils' problems. The petitioner raised

the pleas that as M. V. Yahata was flying the flag of Honduras, that country alone

has jurisdiction to enquire into, if any offences were committed by the crew; the

detenus are not amenable to the jurisdiction of the Indian courts as at the time of

sinking of M. V. Yahata it was outside the territorial waters of India. The fight

against the Sri Lankan government by the Sri Lankan Tamils for securing their

liberation cannot be an offence under any Indian law and the ban imposed on L. T.

T. E. in India is not valid and even if the allegation that M. V. Yahata was carrying

arms and ammunition is true, it would not be an offence against the Indian

Government nor could it be construed as an unlawful activity.


( 11 ) THE true state of facts are in dispute. Most of the facts alleged by the

petitioner in his two affidavits are controverted by the respondents in their counter affidavits. A threshold objection was taken by respondents 1 and 2 that the

petitioner has no locus standi to file the writ petitions ; he is not a duly constituted

attorney nor a relation of the detenus.


( 12 ) IN the counter-affidavit filed in W. P. No. 3793 of 1993 on behalf of

respondents 1 and 2, it was specifically averred that Kittu is not in the custody of

the respondents and no one bearing the name Sadasivam Pillay Krishna kumar alias

Kittu was captured from the vessel - M. V. Yahata - before it was sunk nor was any

such person rescued from the sea by the Indian Navy. None of the dead bodies

recovered from the ship or the sea has been identified to be that of Kittu. One of the

dead bodies recovered as unidentifiable as it had been completely charred after the

vessel was set ablaze by some of the persons on board the vessel before they

jumped into the sea. The alleged packages containing peace messages and 11 /2

million U. S. currency were neither discovered nor recovered throughout the

operations. The counter-affidavit also - for want of knowledge - denied the alleged

mission undertaken by Kittu. In the two counter-affidavits filed on behalf of

respondents 1 and 2 in W. P. Nos. 3792 and 3793 of 1993,it was averred that the

vessel - M. V. Yahata - when she displayed the sign "not under command" was

acting in an unusual and suspicious manner; she was carrying arms and

ammunitions illegally and when sighted she was found moving towards India.

Captain V. Jayachandran, when questioned over the radio - telephone, gave the

name of the vessel as "m. V. Ahat" - a false name. M. V. Yahata was not flying any

flag and the name displayed was "m. V. Ahat". She was sailing under false

navigational signals without any nationality. The allegation that the Indian Naval

ship - INS Viveka - was not flying any flag at the time when it sighted the detenus

ship was specifically denied. The Indian Naval ships and the Coast-Guard vessels are

"public Armed vessels" under International Law and, therefore, had a right to visit

any ship on high seas, if the circumstances warranted. Under the provisions of

international law, the public armed vessels of the Indian Navy had a right of visit

when they noticed M. V. Yahata sailing without any flag under a false name and

without navigational lights. But as the said vessel did not recognise the right of visit

of the Indian ships, the vessel was asked to sail to the Indian territorial waters,

which had been done by the Captain. She was actually escorted to the Indian

territorial waters on 16-1-1993 and thereafter - in accordance with national and

international law - was asked to submit for search but the vessel refused to do so.

The L. T. T. E. cadre themselves set vessel on fire in order to conceal the illegal and

unlawful cargo she was carrying and to prevent its discovery by the ships of the

Indian Navy. It was admitted in the counter-affidavits that the nine persons who

were picked up from the sea by the Indian Navy were taken to visakhapatnam and

handedover to the Station House Officer, Harbour Police station on 17-1-1993; they

were arrested and a case was registered against them in Crime No. 4 of 1993 of

Harbour Police Station, Visakhapatnam. When produced before the designated

court, they were remanded to custody and now they are lodged in the Central

Prison, Visakhapatnam. As the detenus are in judicial remand pursuant to the orders

of the designated court, the said orders cannot be challenged.


( 13 ) DENYING various legal pleas raised in the affidavits filed by the petitioner, it

was averred by respondents 1 and 2 in their counter-affidavits that with an ulterior

motive for gaining political mileage, the petitioner had filed the writ petitions without

any bona fides. The petitioner is a meddlesome interloper trying to whip up passions

in the society by giving undue leverage and providing undue anti-national

propaganda in favour of the banned organisation - L. T. T. E.


( 14 ) ON behalf of the fourth respondent - Deputy Superintendent of Police, central

Bureau of Investigation, Visakhapatnam -a counter-affidavitwas filed in W. P. No.

3793 of 1993 averring - inter/ilia - that the Naval authorities recovered three dead

bodies and none could be identified as that of Kittu and that the investigations did

not disclose that Kittu was taken into custody.


( 15 ) THE Deputy Superintendent of Police, Central Bureau of Investigation,

visakhapatnam-the third respondent in W. P. No. 3792 of 993-filed an elaborate

counter- affidavit averring that this court has no power to quash the orders passed

by a designated court in a TADA case. He alleged that all the nine detenus are L. T.

T. E. men; Keshavan alias Nayagan (A-6) belongs to the C- Tiger unit of L. T. T. E.

and the rest are L. T. T. E. men working as crew. The ship - m. V. Yahata - was

registered at the embassy of Honduras in Singapore with the port of registry shown

as San Lorenzo and the name of the ship was deliberately altered as M. V. Ahat

under the orders of the Master of the ship. The Master (Captain) of the ship when

contacted by Indian Naval vessel admitted that the ship was drifting on high seas

with false navigational lights with no flag and with a false name - 'm. V. Ahat'. Since

it was admitted by the petitioner in paragraph 9 of his affidavit filed in. WP. No.

3792 of 1993 that the ship had on board 10 L. T. T. E. members, it is obvious that

as they were not crew - men, the ship had passengers besides the crew and this

fact was falsely denied by the captain of M. V. Yahata when the Indian Naval Ship

first established contact with her. The Indian Navy had seized two 'a. K 47' rifles and

one hand-grenade from 'm. V. Yahata' and the accused have confessed that the ship

was carrying arms, ammunition and explosives. Captain Jayachandran brought the

vessel - m. V. Yahata - into the Indian territorial waters and the offences alleged

against the detenus were committed by them within the Indian territorial waters

and, therefore, they are answerable to the Indian courts. The L. T. T. E. is a banned

organisation in India and the ban was upheld by Mr. Justice Nag Tribunal

constituted under the Unlawful Activities (Prevention) Act, 1967.


( 16 ) SHRI K. G. Kannabhiran, learned counsel for the petitioner, has contended

that the ship - M. V. Yahata - not being a vessel registered in India, it could not be

subjected to the jurisdiction or control of the Indian Navy. At the time when it was

sighted by the 'public Armed Vessel' of the Indian Nany, it was actually on the high

seas and, therefore, under international law, as the vessel enjoyed uninterrupted

navigation on the high seas, compelling her to sail towards the Indian territorial

waters was clearly in breach of international law. There were no specific allegations

of any crimes against M. V. Ya hata except that it was in the service of the L. T. T.

E. and even though it is a banned organisation in India, the crew members of M. V.

Yahata, being foreigners, could not be subjected to the jurisdiction of the Indian

courts and the Indian Penal Law. The public armed vessels of India had no power to

bring the nine crew members either to the indian coast or to detain them under the

provisions of any Indian Law. The learned counsel also has submitted that even

assuming that the detenus could be subjected to the Indian Penal Laws, still the F..

R. registered against the nine detenus does not render them liable for conviction for

any of the offences alleged against them; the allegations in the F.. R, even if

accepted in their entirety, do not constitute any offence against them.


( 17 ) SUPPLEMENTING the arguments advanced by Shri Kannabhiran, Sri

doraiswarny, learned cousel, has argued that as Kittu was last seen alive when m. V.

Yahata was about to sink, a presumption would arise that Kittu was in the custody

of the Indian authorities and so, the respondents are bound to produce him before

this court.


( 18 ) IN opposition to this, Shri Tulsi, learned Additional Solicitor-General of india,

has argued that both the writ petitions are not maintainable; under the provisions of

the TADA Act, an appeal is allowed only to the Supreme Court against the orders of

the designated court. Shri Nedumaran, who swore to the affidavits, has no authority

to file the writ petitions on behalf of the detenus. None of the detenus had

expressed any inclination to question the legality of the f.. R. , now pending with the

designated court. Apart from the fact that no public interest would be served by

these two writ petitions. , they are bereft of bond fides; the only objective the

petitioner is seeking to achieve is to utilise the forum of this court for propaganda

purposes in interantional forums to denigrate the fair name of this coutry. Inasmuch

as the jurisdiction of the High Court is ousted under the TADA Act, it is not open to

the petitioner to indirectly invoke the jurisdiction of this court by filing Habeas

Corpus writ petitions under article 226 of the Constitution. What is forbidden directly

cannot be permitted to be achieved by indirect methods. Even on merits, both the

writ petitions deserve to be thrown-out. All the nine detenus - by virtue of the lawful

orders passed by the designated court under the TADA Act - have been committed

to judicial custody and, therefore, the remedy by way of Habeas Corpus is

unavailable. Under international law, there is no unrestricted freedom of navigation

on high seas ; every ship must fly the flag of the country of her registration and the

flag must, at all times, be exhibited. This mandatory injunction of international law,

when flouted, would give rise to a right of visit by the public armed vessels of any

nation and in accordance with this well known principle of international law, the

vessels of Indian Navy intercepted m. V. Yahata. Even according to the averments in

the affidavits filed by the petitioner, the said vessel was carrying a huge cargo of

explosive - about 100 tons - and the members of the L. T. T. E. on board the ship,

before committing suicide, set the vessel a flame after pushing the nine detenus into

the sea within the territorial waters of India. The ammunition was intended to be

diverted to the South Indian coast for subversive activities by the members of L. T.

T. E - a banned organisation. The investigation now points to this and in course of

further investigation, many new facts may emerge giving rise to commission of fresh

offences by the detenus. The present stage of investigation indicates that kittu is

dead ; the torso recovered could be his but a final conclusion in this regard is yet to

be arrived. The F.. R. clearly alleges commission of cognisable offences by the nine

detenus and, therefore, it is not open to this court to scrutinise the allegations for

the purpose of recording a finding whether or not the allegations are true ; such an

inquiry is clearly barred in habeas corpus proceedings. The F. l. R is not a final

report and investigation is still in its preliminary stage. The allegations in the F.. R

must be taken at their face value at this stage and if so done, both the writ petitions

must fail.


( 19 ) ON the contentions urged, the points that arise for consideration are : (1)

Whether the writ petitions are maintainable ? (2) Whether the action of the Public

Armed Vessesl of the Indian Navy in directing M. V. Yahata from the high seas to

sail into the Indian territorial waters was in breach of any principle of International

Law ? (3) Whether the detenus, being foreigners, are liable to be tried under the

penal Law of India ? (4) Whether the F.. R in Crime No. 4 of 1993 against the nine

detenus is liable to be quashed ? and (5) Whether Sadasivam Pillay Krishna Kumar

alias Kittu is in wrongful custody of the Indian authorities ? re. (1):


( 20 ) THE first aspect to be considered is whether the petitioner has locus standi to

file the writ petitions ? It was the submission of the learned Additional solicitor -

General that the petitioner has absolutely no locus standi; none of the detenus had

authorised him to move this court. The motive of the petitioner was only to use the

forum of this court for publicity in India and abroad. Relying upon the rulings of the

Supreme Court in Janata Dal vs. H. S. Chowdhary, Krishna swami vs. Union of India

and Simranjit Singh Mann vs. Union of India he strongly contended that both the

writ petitions should be thrown out on the question of maintainability without going

into merits.


( 21 ) WE are not inclined to agree with the plea that the writ petitions should be

summarily thrown out on the ground of locus stand. It is true that the petitioner is in

no way related to any of the detenus. But the mother of Captain v. Jayachandran,

one of the detenus, by a letter dated 29-1-1993 has authorised. Sri D. Veerasekaran

and S. Doraiswamy "to appear on her behalf and take up necessary legal actions as

they deem suitable to secure the release of her son". The fact was adverted to by

the Division Bench of the Madras High Court in its judgment in H. C. P. Nos. 132 of

1993 and 134 of 1993. Sri Doraiswamy has filed vakalat for the petitioner in these

two writ petitions.


( 22 ) SRI Nedumaran, the petitioner, is a former member of the Legislative

assembly of Tamilnadu and a supporter of the cause of the Sri Lankan Tamils. He

claimed to have received instructions to file the writ petition through the mother of

Captain V. Jayachadran and also from the other detenus through his counsel Sr.

Doraiswamy, who interviewed them on 5-3-1993 at Visakhapatnam pursuant to the

directions issued by the Madras High Court. The petitioner asserted that he has

been in public life for the last four decades and we do not see any reason to doubt

either the petitioner's claim about his being in public life or his interest in the Sri

Lankan Tamils. The detenus, being foreigners - Tamils of Sri Lanka - the espousal of

their cause by Sri Nedumaran, the petitioner, cannot he equated with that of an

interloper o intermeddler. It is a well established fact that in Habeas Corpus

applications, normally, it is not possible for the affected person - by reason of his

detention - to swear to an affidavit setting out all the necessary facts and also the

legal issues that may arise therefrom. That is why, courts have alwasy permitted a

relation or friend or anyone interested in the detenu to challenge the legality of the

detention by way of a Habeas Corpus application. Rule 5 (f) of the Writ Proceedings

Rules, 1977 made by this court under Article 225 of the Constitution allows a

person other than the detenu to swear to the affidavit, provided he is acquainted

with the facts. As the nine detenus are in judicial remand, they are obviously

disabled from filing affidavits in support of the pleas raised on their behalf in W. P.

No. 3792 of 1993.


( 23 ) THE general principle is that one person cannot seek to enforce the rights of

another except in cases where the law specifically allows him to do so. Writ of

Habeas Corpus is a well known exception to this general rule. Adverting to this,

Mukherjea, J said in Charnnjit Lal vs. Union of India: ?not only the man who is

imprisoned or detained in confinement by any person, provided he is not an

absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the

purpose of liberating another from an illegal imprisonment. "reiterating the principle

that existence of a claimed right is the foundation for the exercise of jurisdiction

under Article 226 of the Constitution, the Supreme court in Cal. Gas Co. Ltd vs. State

of W. B. following the view earlier expressed in Charanjit Lal's case stated the legal

position :"the right that can be enforced under Article 226 also shall ordinarily be the

personal or individual right of the petitioner himself, though in the case of some of

the writs like habeas corpus or quo warranto. this rule may have to be relaxed or

modified. " (Emphasis added)

( 24 ) THE principles governing locus standi in entertaining applications concerning

public interest litigation do not apply to writs of habeas corpus and this was

recognised by the Supreme Court even in the rulings cited by the learned Additional

Solicitor-General. In Janata Dal's case (1 supra), recognising the rule that a writ of

habeas corpus is an exception to the strict rule of standing, pandian,. , observed :".

. . any other person other than the person under detention may file an application

for issue of a writ of habeas corpus challenging the legality of the detention of the

detenu. "in Simranjii Singh Mann's case (3 supra), reiterating the principle, it was

held by the Supreme Court: ?cases which have ended in conviction by the apex court

after a full gamut of litigation are not comparable with preventive detention cases

where a friend or next of kin is permitted to seek a writ of habeas corpus. "krishna

Swami's case ( 2 supra) falls within the ambit of the general rule as to standing for

maintaining an action in order to enforce the rights of others. In that case, an

advocate filed a writ petition in the Supreme Court by v/ay of public interest

litigation seeking reconsideration of an earlier decision of the Constitution bench of

the Supreme Court. By a majority of 4 against 1, the Supreme Court ruled that the

petitioner therein did not allege any special injury and, therefore, ?the right he claims

is no better than that available to every other advocate in the country".


( 25 ) IN M. A Dharman vs. State of A. P. (1991 (1) ALT p. 315), a Division Bench of

this court negatived the plea as to non-maintainability of the writ petition in which

the legality of the detention of nine foreigners was challenged by an Indian citizen

observing: ?the rights under Articles 14,20,21 and 22 are available to both citizens

and non-citizens. "


( 26 ) AN inter-related contention urged by the learned Additional Solicitor- general

was that since the jurisdiction of the High Court to entertain any appeal or

application under the provisions of the TADA Act was excluded, the petitioner is not

entitled to seek indirectly what he could not seek directly. It is undisputable that the

jurisdiction of the High Court is excluded under the provisions of the TADA Act. The

petitioner could not have approached this court by way of an application under

Section 482 Cr. P. C to quash the F.. R and seek the release of the detenus. But that

position would not deprive him of his right to seek constitutional remedy under

Article 226 of the Constitution. The availability of such a remedy was never in

dispute. In Usmanbhai vs. State of gujarat, after referring to the legal position as to

the exclusion of jurisdiction of the High Court under the provisions of the TADA Act,

the Supreme Court observed: ?at the very outset, Shri Poti, learned counsel

appearing for the State government with his usual fairness, unequivocally accepted

that the provisions of the Act do not take away the constitutional remedies available

to a citizen to approach the High Court under Article 226 or article 227 or move this

Court by a petition under Article 32 for the grant of an appropriate writ, direction or

order. It must necessarily follow that a citizen can always move the High Court

under Article 226 or Article 227 or this Court under Article 32 challenging the

constitutional validity of the act or its provisions on the ground that they offend

against Articles 14,21 and 22 or on the ground that a notification issued by the

Central Government or the State Government under Sec. 9 (1) of the Act

constituting a Designated court for any area or areas or for such case or class or

group of cases as specified in the notification was a fraud on powers and thus

constitutionally invalid. "


( 27 ) THE grounds of challenge, mentioned above- it is clear - are only illustrative

and not exhaustive. When a foreigner, detained under the TADA act, files a habeas

corpus writ petition contending that the Indian Penal Law would not apply to him, it

is not open to this court to dismiss the case in limine on the ground of want of

jurisdiction. The contentions urged must be examined on merits and the result

should be based upon the conclusion arrived.


( 28 ) THE point is accordingly answered in favour of the petitioner and against the

respondents. Re. (2):


( 29 ) INTERNATIONAL Law recognises that the sovereignty of a State extends to a

belt adjacent to its coast and the extent of this sea-belt is commonly called the

'territorial waters' of the State. Prior to 1947, the territorial waters claimed by India

were limited to 3 nautical miles from the coast line. By a proclamation dated 22nd

March, 1956, the President of India declared the extent of territorial waters to a

distance of 6 nautical miles measured from the appropriate base-line. That limit was

extended to 12 nautical miles by a later proclamation issued by the President of

India on 30 the September, 1967. The position continues to be the same even now,

the virtue of Sec. 3 (2) of Act 80 of 1976.


( 30 ) IN customary international law, open sea is not the territory of any State and

the term 'freedom of the open sea' indicates the rule of international law :"the open

sea is not and never can be under the sovereignty of any State whatever. . . .

Freedom of the open sea involves perfect freedom of navigation for vessels of all

Nations, whether men-of-war, other public vessels or merchantmen. "it is a

mandatory principle of international law:"in the interest of order on the open sea, a

vessel not sailing under the maritime flag of a State enjoys no protection whatever,

for the freedom of navigation on the open sea is freedom for such vessels only as

sail under the flag of a State. "a further binding rule of customary international law,

as stated by L. Oppenheim, is: ?every State must register the names of all private

vessels sailing under its flag and it must make them bear their names visibly, so that

every vessel may be identified from a distance. No vessel may be allowed to change

her name without permission and fresh registration, ?customary International Law

also lays down:? every State is under a duty to fix the conditions for the grant of

nationality of its ships, for the registration of ships in its territory, and for the right

to fly its flag. Ships have the nationality of the State whose flag they are entitled to

fly, and each State has an obligation to issue to ships to which it has granted the

right to fly its flag documents to that effect. " "ships flying no flag and refusing to

show a flag when called upon to do so in a proper manner, may be boarded by the

ships of any State. "it is the universally recognised customary rule of international

law: ?war- ships of all nations, for the purpose of maintaining the safety of the open

sea against piracy, have the power to require suspicious private vessels on the open

sea to show their flags; but the vessels must be suspicious. ""the right to enjoy the

protection of the law balances the responsibility of the flag State for the behaviour

of its ships and a ship without nationality loses the protection of the law with respect

to boarding and seizure on the high seas ?in order to make success of the system

and for maintaining order on the high seas, international law recognises the right of

war-ships to approach any vessel in order to verify her identity and nationality. Such

a right of approach exists in all circumstances. The right of men-of-war - also

commonly called 'public armed Vessels' - to verify the flags of suspect merchant

ships and to arrest foreign ships or ships under the flags of more than one State is

an exception to the rule of the exclusive jurisdiction of the flag State in respect of

the ships flying their flags on the high seas.


( 31 ) IN this context, it is appropriate to notice judicial interpretation of the rules of

international law concerning freedom of the open sea.


( 32 ) IN the case of the I'm Alone, a British ship of Canadian registry, which was

owned and controlled by the United States citizens - while engaged in rum- running

- was pursued by a U. S. Coast Guard vessel when the ship was within an hour's

sailing distance from the shore. When the ship -I 'm Alone - ignored the warning

from another Coast Guard vessel that has joined in the chase at a point more than

200 miles off the coast of the United States, the suspected vessel was sunk. Both

the countries referred the matter to the joint consideration of two Commissioners -

one from the United States and another from Canada - whose report the parties

agreed to accept. The Commissioners, inter alia, stated the rule: ?if sinking should

occur incidentally, as a result of the exercise of necessary and reasonable force for

such purpose, the pursuing vessel might be entirely blameless"but on a

consideration of the facts, they held that the sinking of the ship was not justified.


( 33 ) THE principles of customary international law governing the freedom of the

open sea, adverted to supra, have been incorporated to a very large extent in two

important Conventions - the Convention of the High Seas of 1958 and the law of the

Sea Convention of 1982. It is not in dispute that India has ratified both the

Conventions. Article 3 of the 1982 Convention recognises that every State has the

right to establish the breadth of its territorial sea upto a limit not exceeding 12

nautical miles, measured from baselines determined in accordance with the

Convention. Part VII deals with 'high Seas'. Article 87 lays down "freedom of the

high seas is exercised under the conditions laid down by this convention and by

other rules of international law", thereby clearly indicating that in matters not

covered by the Convention, the rules of customary international law still govern the

field. Article 88 enjoins that the high seas shall be reserved for peaceful purposes.

Every State is empowered by Article 90 to sail ships flying its flag on the high seas.

The principle that ships have the nationality of the States whose flags they are

entitled to fly is recognised by article 91, which also lays down that there must exist

a genuine link between the State and the ship. Article 92 forbids a ship from

changing her flag during the voyage or while in a port of call except in case of real

transfer of ownership or change of registry. What are the duties of a flag State are

found incorporated in Article 94. Article 101 defines 'piracy' and Article 105 confers

power on a flag state to seize a pirate ship and the courts of the State which carried

out the seizure may decide upon the penalties to be imposed and may also

determine the action to be taken. Only war-ships or military aircraft may effect

seizure on account of piracy. Article 110 recognises the right of visit of a war-ship

encountering a foreign ship on the high seas if: (a) the ship is engaged in piracy ;

(b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized

broadcasting and the flag State of the war-ship has jurisdiction under Article 109;

(d) the ship is without nationality ; or (e) though flying a foreign flag or refusing to

show its flag, the ship is, in reality, of the same nationality as the warship. In the

aforesaid five cases, for the purpose of carrying out verification, the warship may

send a boat under the command of an Officer to the suspected ship and if suspicion

remains after the documents have been checked, a further examination of the ship

may also be carried out.


( 34 ) WHAT are the rights and duties of public armed vessels navigating on high

seas in time of peace came up for consideration before the United States supreme

Court in "the Marianna Flora" Story,. , expounding the legal position in customary

international law, held :" It is the duty of public armed vessels to keep the police of

the seas and to put down pirates and for this purpose, every such vessel has a right

of approach and in a cases of suspicion, a right to compel the suspected vessel to

show her flag, together with a right of further investigation. . . Even in time of

peace, the public armed vessels of one State have a right to detain or arrest vessels

belonging to other States: (1) in cases of suspected piracy and (2) in cases where

there is reasonable ground for believing that the vessel is engaged in some

enterprise against the sovereignty or safety of the State to which the Public vessel

belongs. . "


( 35 ) THE doctrine of 'freedom of the open sea' came up for consideration before

the Privy Council in Naim Molvan, Owner of Motor Vessel "asya" vs. Attorney-

General for Palestine. The Immigration Ordinance, 1941 of Palestine provided for

exclusion of certain categories of persons from Palestine for the inspection,

detention and removal of intending immigrants. It also further provided that the

owner of a vessel is deemed to have abetted the unlawful immigration of any person

who is proved to have been on board the vessel in the territorial waters of Palestine,

whether that person or vessel came there voluntarily or not. Motor Vessel Asya

when first sighted by a British destroyer was on the high seas - some 100 miles

South-West of Jaffa. She was filing no flag but later hoisted a Turkish flag and when

the boarding party arrived on the ship, the Turkish flag was hauled down and the

Zionist flag hoisted. As it did not reply to the signals sent by the British warship, a

boarding party was sent and the vessel was escorted to the outer harbour of Haifa,

where the police and immigration authorities boarded her. There were 733

passengers on board and none of them had any passport or travel document to

enter Palestine. There was no passenger list nor any usual ship's papers. The

Supreme Court of Palestine affirmed the order of the District Court for forfeiture of

the ship to the government of Palestine on the ground that she was within the

territorial waters of Palestine in circumstances in which the owner of the vessel was

deemed to have abetted the unlawful immigration of passengers.


( 36 ) LORD Simonds, speaking for the Judicial Committee of the Privy Council,

expressed the view that international law does not recognise unqualified freedom of

the open sea. He further observed :"for the freedom of the open sea, whatever

those words may connote, is a freedom of ships which fly, and are entitled to fly,

the flag of a State which is within the comity of nations. The 'asya' did not satisfy

these elementary conditions. No question of comity nor of any breach of

international law can arise if there is no State under whose flag the vessel sails.

Their lordships would accept as a valid statement of the law the following passage

from Oppenheim's International Law (6th Edn.) Vol. 1 p,546. 'in the interest of order

on the open sea, a vessel not sailing under the maritime flag of a State enjoys no

protection whatever, for the freedom of navigation on the open sea is freedom for

such vessesl only as sail under the flag of a State. ' applying that principle, the

learned Law Lord ruled that as 'm. V. Asya' had no ship's papers to identify her and

as there was no evidence that she had a right to fly the Turkish flag and the flag

hoisted later - Zionist flag - was not the flag of any existing State, she could not

claim the protection of any State and, therefore, no principle of international law

was breached by her seizure.


( 37 ) IN the light of these legal principles, the question has to be decided whether

under international law, the Indian public armed vessels had any right to direct 'm.

V. Yahata' to sail into the Indian territorial waters when they sighted the vessel on

the high seas on 13-1-1993.


( 38 ) EVEN according to the specific averment in the affidavits filed by the

petitioner, Kittu and nine other members of the L. T. T. E. boarded 'm. V. Yahata' on

7-1-1993 at the port of Puberhala Island in the straits of Malaca. The vessel was

registered - according to the petitioner - at San Lorenzo in Honduras. But according

to the counter - affidavit filed by the Deputy Superintendent of police, Central

Bureau of Investigation, Visakhapatnam - the third respondent in W. P. No. 3792 of

1993 - the vessel was registered at the embassy of Honduras in Singapore showing

its port of registry as San Lorenzo in Honduras. No further details in this regard are

forthcoming.


( 39 ) WHAT appears to be fairly clear is that the country of the ship's registration is

Honduras. At the time when she was sighted by the Indian Public Armed vessel on

13-1-1993, the vessel was on the high seas. Admittedly, she was drifting exhibiting

the sign "not under control" and she was not flying any flag. The allegation of the

petitioner that when INS 38 Viveka sailed closer to M. V. Yahata, the Indian ship

was not flying any flag was specifically denied in the counter and no rejoinder was

filed by the petitioner traversing the same. It is hard to believe that the Indian Naval

ship - INS 38 Viveka - was sailing on the high seas without flying her flag. We are

inclined to believe the assertion in the counter-affidavits that M. V. Yahata was

displaying a false name- M. V. Ahat - when it was sighted by the Indian Naval ship;

had it been otherwise, a rejoinder would have been definitely filed by the petitioner

denying the aforesaid assertion in the counter - affidavits. INS Viveka - very

justifiably - made an enquiry on radio as to whether there were any passengers on

board the ship - m. V. Yahata. Despite the fact that admittedly there were ten

persons other than the crew on board the ship - Kittu and nine others -V.

Jayachandran, the Captain of M. V. Yahata chose to send a negative reply. In that

fact situation, INS Viveka was entitled - under the rules of international law - to

claim a right of visit. By not flying her flag and not displaying her correct name and

also by giving an incorrect reply as to the presence of passengers on board the ship,

M. V. Yahata had lost her right to claim uninterrupted navigation on the high seas

M. V. Yahata could not be considered to be a vessel subject to the jurisdiction of the

laws of the State of Honduras - she has lost the right to claim the nationality of

honduras. Further, prima facie, there appears to be no genuine link between the

state of Honduras and M. V. Yahata barring the purported tenuous link of

registration, as is evident from the absence of any protest from that State

(Honduras) when the vessel was sunk.


( 40 ) WHEN a ship sails without a flag, the public armed vessels of any Slate have a

right to arrest such a ship and this right is a recognised exception to the general

principle of the freedom of the open sea. This right is the corollary of the duty

imposed by interantional law on public armed vessels to police the seas and to put

down pirates. The fact situation clearly justifies the action of INS 38 viveka in asking

M. V. Yahata to sail to the Indian coast and the other two Indian men-of-war -INS

Papa and INS Savitri - in escorting M. V. Yahata to the Indian territorials waters ;

the action perfectly accords with State practice, judicial interpretation and the

governing of principles of international law. We accordingly answer point No. 2

against the petitioner. Re. (3):


( 41 ) THE arguments advanced by Shri Kannabhiran on the question as the nonapplication of the Indian Penal Law to the nine detenus ran along the following

lines:


( 42 ) THE detenus admittedly being foreigners, could not be tried for any of the

offences mentioned in the F.. R. The accusations against the nine detenus are under

the provisions of the TADA Act, the Indian Penal Code, the Code of criminal

Procedure, the Explosive Substances Act and the Arms Act. Section 1 (2) of the

TADA Act excludes the application of the Act to the detenus since they do not fall

under any of the three categories specified therein. By Section 2 of the Indian Penal

Code, every person is liable to punishment, provided the offence with which he is

charged has been committed within India and the offence alleged under the Indian

Penal Code was not committed within the territory of India by the detenus. The

Arms Act has no extra-territorial application and mis is made clear by Section 1 (2)

and the same is the case with regard to the explosive Substances Act, 1908 as is

evident from Section 1 (2) thereof. Section 188 of the Code of Criminal Procedure

confines the extra-territoriality only to citizens of India whether on the high seas or

elsewhere and to non-citizens in respect of offences committed on any ship or

aircraft registered in India. The offences alleged against the detenus not having

been committed within India or on any ship or aircraft registered in India, they are

not liable to be tried under any of the provisions of the penal laws of India.


( 43 ) IN the First Information Report registered with the Harbour Police station (L.

A. O.) Visakhapatnam, the offence alleged against the nine detenus are under

Section 25 of the Indian Arms Act, Sections 3 and 5 of the Indian explosive

Substances Act, Sections 3 and 4 of the TADA Act, Section 436. P. C. (Section 437?)

and Section 174 Cr. P. C The material portion of the F.. R. reads:"it is intimated that

on 14 th January, 1993 movement of a merchant vessel m. V. Ahat belonging to L.

T. T. E. carrying sophisticated arms, ammunitions, explosives and some L. T. T. E.

cadre on board was monitored to be moving towards the Indian Coast. The vessel

was directed to shape course towards Madras escorted by Navy and Coast Guard

Ships. On the morning of 16th the vessel was stopped off Madras in Indian territoral

waters. The crew and L. T. T. E. cadre were given every opportunity to surrender.

Some personnel were seen throwing the arms, ammunitions and explosives over

board before setting the ship on fire. Nine survivors and one dead body were

recovered and carried on board this ship to visakhapatnam for further disposal".


( 44 ) ALTHOUGH the detenus are foreigners, from the nature of the allegations in

the F.. R. , it is not possible to held that the Indian Penal Law has no application to

them. As already noticed, under international law, the sovereignty of a State extends

to waters adjacent to its coast and the extent of this sea-belt is commonly called

'the territorial waters of the State'. Act 80 of 1976 (the territorial Waters, Continental

Shelf, Exclusive Economic Zone and other maritime Zones Act, 1976) was enacted

by the Union Parliament to provide, inter alia, for matters relating to the territorial

waters. Section 3 reiterates the admitted position under international law - the

sovereignty of India extends and as always extended to the territorial waters of

India. Sub-section (2) declares that the limit of the Indian territorial waters is 12

nautical miles from the nearest point of the appropriate base line. Sub-section (1) of

Section 4, subject to the provisions of any other law for the time being in force,

guarantees innocent passage through the territorial waters to all foreign ships

including submarines and other under-water vehicles. By virtue of Sections, the

territorial waters of India shall be treated as Indian territory; with the consequence,

inter alia any offence committed within the territorial waters of India shall be subject

to the jurisdiction of the Indian courts and the Indian laws. The specific allegation in

the F.. R. is mat the incidents alleged happened in the Indian territorial waters and

in the counter-affidavits, the same was averred but no rejoinder was filed denying

the same. Even if the petitioner had filed a rejoinder denying the allegation that the

offences alleged were committed in the Indian territorial waters, it would not have

been possible for this court to adjudicate upon that disputed question. The

allegations in the F.. R. must be taken at their face value and in their entirety while

deciding questions relating to jurisdiction.


( 45 ) THE TADA Act applies to the whole of India by sub-section (2) of Sec. l, and it

also applies to three categories specified therein viz ; (a) to citizens of India outside

India, (b) to persons in the service of the Government. , wherever they may be; and

(c) to persons on ships and aircraft registered in India, wherever they may be. Even

if an accused falls outside the ambit of the three specified categories, still, if the

offence or offences alleged were committed within India, including the territorial

waters, the TADA Act would apply to him. Section 2 of the Indian penal Code makes

it clear that for any of the offences committed within India, every person is liable to

punishment under the Code. Same is the resultant position with regard to offences

alleged under the Arms Act and the Explosive substances Act by virtue of Section 1

(2) in the two Acts. Section 174 Cr. P. C. deals with procedural aspects - to cases in

which an inquest is necessary. Section 188 speaks of liability of Indian citizens for

offences committed outside India and offences committed by non-citizens on any

ship or aircraft registered in India. In respect of both the categories of persons, the

section lays down that they may be tried for such offence as if it had been

committed at any place within India at which they will be found. It is, therefore, not

possible to accept the plea that the nine detenus, although foreigners, could not be

tried in India for the offences alleged against them.


( 46 ) THE point is accordingly answered against the petitioner. Re. (4):


( 47 ) SHRI Kannabhiran, learned counsel for the petitioner, has argued that even if

the allegations in the F.. R. registered against the nine detenus are taken at their

face value and accepted in their entirety, do not constitute the offences alleged and,

therefore, the F.. R must be quashed. As a principle of law, we must say, the

proposition is unexceptionable; a catena of case law establishes this.


( 48 ) IN Emperor vs. Nazir Ahmad while cautioning that the court should not

interfere - by exercising its inherent jurisdiction under Section 561-A of the old

criminal Procedure Code corresponding to Section 482 of the new Code - with the

police in " matters which are within their province and into which the law imposes

upon them the duty of enquiry", the Privy Council, in unmistakable terms, laid

down the rule :"no doubt, if no cognizable offence is disclosed, and still more if

no offence of any kind is disclosed, the police would have no authority to undertake

an investigation. . . "stating that it was not possible, desirable or expedient to lay

down any inflexible rule which would govern the exercise of the inherent jurisdiction

under Section 561-A of the old Criminal Procedure Code, Gajendragadkar, J said in

R. P. Kapur vs. State of Punjab: ?it is well established that the inherent jurisdiction of

the High Court can be exercised to quash proceedings in a proper case either to

prevent the abuse of the process of any court or otherwise to secure the ends of

justice. (Emphasis supplied ). Ordinarily, criminal proceedings instituted against an

accused person must be tried under the provisions of the Code, and the high Court

would be reluctant to interfere with the said proceedings at an interlocutory stage.

"one category of cases in which the inherent power should legitimately be exercised

by the High Court is:". . . . . WHERE the allegations in the First Information Report

or the complaint, even if they are taken at their face value and accepted in their

entirety, do not constitute the offence alleged; in such cases, no question of

appreciating evidence arises; it is a matter merely of looking at the complaint or the

First information Report to decide whether the offence alleged is disclosed or not.

"in State of W. B. vs. Swapan Kumar, it was held by A. N. Sen, J, after reviewing the

entire case law: ?once an offence is disclosed, an investigation into the offence must

necessarily follow in the interests of justice. If, however, no offence is disclosed, an

investigation cannot be permitted, as any investigation, in the absence of any

offence being disclosed, will result in unnecessary harassment to a party, whose

liberty and property may be put to jeopardy for nothing". . . In considering whether

an offence into which an investigation is made or to be made, is disclosed or not,

the court has mainly to take into consideration the complaint or the F.. R. and the

court may in appropriate cases take into consideration the relevant facts and

circumstances of the case. "this principle was reiterated in State of U. P. vs. R. K.

Srivastava: "it is now a well settled principle of law that if the allegations made in the

f.. R. are taken at their face value and accepted in their entirety do not constitute an

offence, the criminal proceedings instituted on the basis of such F.. R should be"

quashed. "in Madhavrao Jiwaji Rao Seindia vs. Sambhajirao Chandrojimo Angre, the

test for quashing criminal prosecution at the initial stage was reiterated - "whether

the uncontroverted allegations as made, prima facie, establish the offence. " Very

recently, the Supreme Court - in a path - breaking ruling - in State of Haryana vs.

Bhajan Lal, after exhaustively reviewing the entire case law, illustratively

enumerated seven categories of cases in which the High Court, in exercise of its

powers under Article 226 of the Constitution or under Section 482 Cr. P. C. , could

quash criminal proceedings. Category -1 relates to cases where the allegations in

the F.. R, even if taken at their face value and accepted in their entirety, do not,

prima facie, constitute any offence or make out a case against the accused.


( 49 ) APPLYING the above legal principle with reference to the contents in the f.. R,

it is not possible to hold that this is a fit case for quashing the F.. R.


( 50 ) THE L. T. T. E is an organisation based in Sri Lanka and one of its professed

objectives is to fight for a separate homeland for the Tamils of Sri Lanka. The

government of India, in exercise of their powers under sub-section (1) of section 3

of the Unlawful Activities (Prevention) Act, 1967, declared the L. T. T. E. to be an

unlawful association and the notification in this regard was published in the Gazette

of India on 14th May, 1992. While stating that the L. T. T. E has sympathisers,

supporters and agents in India, the notification recites :" (I) LTTE's objective for a

homeland for all Tamils disrupts the sovereignty and territorial integrity of India and

thus appears to fall within the ambit of an unlawful activity; (ii) LTTE has created

the Tamil National Retrieval Troops (TNRT) and encouraged and aided its members

to undertake unlawful activities in India; (iii) LTTE encourages and aids United

Liberation Front of Assam (ULFA) which is an unlawful association ; (iv) Persons and

organisations derive inspiration and encouragement from ltte for their unlawful

activities as well as activities punishable under section 153 of the Indian Penal

Code,"the validity of the aforesaid notification is not in issue in these two writ

petitions. The F.. R. clearly mentions that "m. V. Ahat" belonged to the L. T. T. E; it

was "carrying sophisticated arms, ammunition, explosives and some L. T. T. E. cadre

on board" and was monitored to be "moving towards the Indian coast". In the

Indian territorial waters, off the coast of Madras, on 16-1-1993 it was stopped and

the members of the crew and the L. T. T. E. cadre were given every opportunity by

the Indian Navy to surrender but "some personnel were seen throwing arms,

ammunition and explosives over board before setting the ship on fire". Taken at

their face value in their entirety, it is impossible to hold that these allegations do not

constitute the offences mentioned in the F.. R. There were passengers on board the

ship other than the crew was clearly admitted in paragraph 9 of the affidavit filed by

the petitioner in W. P. No. 3792 of 1993: "i state that Sadasivam Pillay Krishna

Kumar alias Kittu and nine other members of the L. T. T. E. boarded the vessel on

7-1-1993 at Puberhala Island in Malaca straits near Indonesia". That the ship was

carrying 100 tons of explosives also was admitted in the affidavit in paragraph 10.

"then he (Jayachandran, one of the detenus) threatened the captain of the Indian

ship (INS 38 Viveka) that he has 100 tons of explosive substances and threatened

him not to approach his vessel". Whether the nine detenus, the members of the

crew, were also members of the L. T. T. E. is not free from doubt According to the

counter- affidavit filed by the Chief Investigating Officer, the Deputy Superintendent

of police, Central Bureau of Investigation, Visakhapatnam- the third respondent in

W. P. No. 3792 of 1993 - all the detenus are members of the L. T. T. E. and they

worked as crew men in M. V. Yahata. When a ship belonging to the L. T. T. E. , a

banned organisation, sails towards the Indian coast carrying 100 tons of explosives,

it is hard to infer that no offence is made out especially when the allegations are

viewed in the light of the objectives of the L. T. T. E mentioned in the notification of

the Government of India dated 14-5-1992 banning that organisation; the allegations

constitute terrorist acts under sub-sections (1) and (3) of Section 3 and also

disruptive acts under Section 4 of the TADA Act. Bringing arms into India is an

offence punishable under Section 25 (1) of the Indian Arms Act, 1959. The

investigation discloses, according to the application filed by the Deputy

Superintendent of Police, Central Bureau of Investigation, visakhapatnam, before

the designated court seeking police custody of the detenus:". . . . . THE vessel 'm.

V. Ahat' was carrying sophisticated arms, ammunition, explosives and when the

members in the vessel were asked to surrender by the Indian Naval authorities, the

L. T. T. E. cadre in the vessel were seen throwing the arms, ammunition and

explosives into the sea. Some of the l. T. T. E.-cadres committed suicide by

swallowing cynaide capsules while some of them jumped into the sea and the

remaining occupants set fire to the ship causing explosion endangering the lives of

the inmates and causing threat to the Indian Naval authorities. The carrying of

arms, ammunition and explosives by the vessel M. V. Ahat and which was moving

towards the Indian coast indicates the intention of the L. T. T. E. to cause

disruptive, subversive and terrorist activities in the Indian territory. "therefore, the

prosecution invoking Section 436 (437? ). P. C. and Sections 3 and 5 of the Indian

Explosive Substances Act cannot be said to be legally impermissible. The jurisd

Please Login To View The Full Judgment!

iction of the designated court at Visakhapatnam was invoked because the detenus were brought to ihe Viskahapatnam Coast by INS savitri, which operates from the Visakhapatnam Naval Base. ( 51 ) IT is not necessary that in the F.. R. , there should be specific allegations regarding the intention of the detenus to use the arms and ammunition for terrorist and disruptive activities within the Indian territory. In the very nature of things, it was not possible to incorporate In the F.. R. , the information surfacing during the course of the investigation. The investigation done so far, according to the learned Additional Solicitor-General, points out that the ammunition was intended for use in India and many new offences also might surface in the course of further investigation. It is needless to say that the First information Report is not intended to be an encyclopaedia of the entire case. "its object," as pointed by the Privy Council in Emperor vs. Nazir Ahmed (18 supra), is: ?to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished. . . . . ". ( 52 ) WHEN once we are satisfied that there is no substance in the contention that the allegations mentioned in the F.. R.- taken in their entirety - do not disclose the offences alleged, we are forbidden from scrutinising the contents of the F.. R. for the purpose of ascertaining whether or not the prosecution is likely to succeed. Entertaining writ petitions against change-sheets and considering the matter on merits by examining the available prima facie evidence with a view to drawing an inference whether the prosecution is likely to succeed amounts to prejudging a criminal trial under Article 226 of the Constitution even before the matter is taken cognisance of by the competent criminal court. ( 53 ) BEFORE closing this aspect of the matter, we must refer to the decision of the Supreme Court in A. 'lakshmanrao vs. Judl. Magistrate, Parvatipuram cited by the learned Additional Solicitor-General for the proposition that when detention was pursuant to an order of remand, the remedy of habeas corpus was unavailable. One of the contentions advanced in that case was that mere were no guidelines for making an order of remand under Section 344 of the old criminal Procedure Code and, therefore, the power to remand was ultravires being arbitrary and unguided. Rejecting that contention, the Supreme Court expressed the opinion that the discretion to make a suitable order has to be exercised judicially keeping in view all the facts and circumstances of the case including the nature of the charge, the gravity of the alleged offence, the antecedents of the accused and other relevant factors and that the power being judicial, "the absence of an express, precise standard for determination of the question would not render the section unconstitutional". After observing so, the Supreme Court concluded: ?detention pursuant to an order of remand which appropriately falls within the terms of Section 344 is accordingly not open to challenge in habeas corpus. "these observations, in our considered view, do not take away the power of this court to examine the question whether the F.. R. is liable to be quashed on the ground that the contents thereof do not disclose the offences alleged against the accused. This question did not fall for consideration before the Supreme Court in Lakshmanrao's case (25 supra) and, therefore, the aforesaid observations cannot have the effect of overriding the settled legal principles for exercise of jurisdiction under Article 226 of the Constitution or under Section 482 of the criminal Procedure Code to quash criminal proceedings. ( 54 ) IN view of the fore-going reasoning, we old that the F.. R. in Crime No. 4 of 1993 is not liable to be quashed and accordingly, the point is answered against the petitioner. Re. (5): ( 55 ) THE assertion in the affidavit of the petitioner in W. P. No. 3793 of 1993 is that Sadasivam Pillay Krishna Kumar alias Kittu was taken into custody by the respondents on 13-1-1993 and "he was last seen alive in the custody of the respondents by the crew-men of M. V. Yahata at 6-30 a. m. on 16-1-1993" and as the whereabouts of the detenu - Kittu - are not known, it is deemed that he is in the illegal custody of the respondents. This was specifically denied in the counter affidavit filed by the Chief Investigating Officer, the Deputy superintendent of Police, Central Bureau of Investigation, Visakhapatnam - respondent No. 4 in W. P. No. 3793 of 1993 - in which it was alleged that the l. T. T. E. cadres on board the ship set her aflame by firing with "a. K.-47" rifles and using hand grenades in spite of the repeated requests by the Naval authorities to surrender and when the ship was on flames, the Naval authorities rescued the nine detenus on 16-1-1993, who jumped into the sea. It was specifically averred in the counter-affidavit "the Naval authorities also recovered three dead bodies and none could be identified as that of Sri Sadasivam Pillay krishna Kumar alias Kittu. . . . . I also specifically deny the averment in para 16 that Sadasivam Pillay Krishna Kumar alias Kittu was last seen alive by the detenus in the custody of the respondents at 6-30 a. m. on 16-1-1993. The detenus and the L. T. T. E. cadre on board M. V. Yahata did not allow the Naval authorities to board their vessel. The investigation also did not disclose that Kittu was taken into custody by Naval/coast Guard authorities". In view of the aforesaid specific averments in the counter-affidavit of the Chief Investigating Officer, it is not possible to believe that Kittu is in the custody of the respondents. ( 56 ) DURING the course of arguments, the learned Additional Solicitor- general has stated that at the moment, there is no definite information with the government of India whether Kittu is alive or dead, but the present stage of investigation indicates that Kittu is no more; the torso recovered could be his but a final conclusion is yet to be arrived. We must also notice in this context that no rejoinder has been filed by the petitioner denying the assertions made by the fourth respondent in his counteraffidavit. On the material placed before us, we are inclined to hold that Kittu was not taken into custody by the respondents and, therefore, the question of producing him does not arise. ( 57 ) POINT No. 5 is accordingly answered against the petitioner. ( 58 ) THESE two cases have been argued exhaustively for 21/2 days. Both the learned counsel-Shri Kannabhiran for the petitioner and the learned Additional solicitor-General of India for the respondents - have covered the entire gamut of the subject with great thoroughness, precision and articulation. We place on record our grateful appreciation. ( 59 ) IN the result, in view of our answers to point Nos. 2 to 5, both the writ petitions fail and accordingly they are dismissed.
O R