Crl.Rev.Pet Nos. 2351 of 2008 and 2352 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **Crl.Rev.Pet.No. 2351 of 2008** **CRA 541/2001 OF ADDL. SESSIONS COURT (ADHOC)-II, ERNAKULAM** **CC 632/2000 OF J.M.F.C.-I, KOCHI** ## **REVISION PETITIONER/S:** **1 MAN A. FISHERIES CO.LTD., 56, SAI NGAM ROAD, MUNANG, SHONGHLA,, THAILAND, REP. BY ITS MANAING DIRECTOR., MR. MANA SRIPITAK. 2 SIRICHAL MARINE FISHERIES CO. LTD. 1101/7, WICHIENCHEDOLE ROAD, MAHACHAL, SAMUTSAKORN 7400, THAILAND, REP. BY ITS MANAGING DIRECTOR, WICHARN SIRICHAI EKWAT.** **BY ADVS. SRI.B.V.DEEPAK B. KUMAR SMT.S.KARTHIKA** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. ALEX M. THOMBRA – SR. PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.10.2018 ALONG WITH CRL.REV.PET.2352/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **WEDNESDAY, THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **Crl.Rev.Pet.No. 2352 of 2008** **CRA 512/2001 of ADDL. SESSIONS COURT (ADHOC)-II, ERNAKULAM** **CC 632/2000 of J.M.F.C.-I, KOCHI** ## **REVISION PETITIONER/S:** ## **THONGLOR PRAPAKON** **14 VILLAGE, FIARG TONG LAND DISTRICT, LAMAKKA PATHUMTHARIM, THAILAND STATE** **BY ADVS. SRI.B.V.DEEPAK B KUMAR SMT.S.KARTHIKA** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **OTHER PRESENT:** **SRI. C S. HRITHWIK SR PP** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10.10.2018 ALONG WITH CRL.REV.PET.2351/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 ..3.. ## **ORDER** The petitioner in Crl.R.P. No. 2352 of 2008 was the accused in CC No. 632 of 2000 on the file of the Judicial First Class Magistrate Court-I, Kochi. He was charged with having committed the offences under Sections 10(b) & 15(c) of the Maritime Zones of India (Regulation of Fishing by foreign Vessels) Act, 1981 (for short, “the Act”). **2.** At about 9.45 pm on 23.05.2000, a foreign vessel by name MV Alkawser was sighted by the Coast Guard in the Exclusive Economic Zone of India. The petitioner, who was its master, failed to stop it when he was required to do so. The Coast Guard forced him to stop. On inspection it was found that the vessel contained about 670 tons of fish. It did not have the licence required by the Act. This was the prosecution case. The trial ended in the conviction of the petitioner. For the offence Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 **==> picture [31 x 8] intentionally omitted <==** under Section 10(b) of the Act he was sentenced to pay a fine of Rs.25,000/- and in default of payment of the fine to undergo simple imprisonment for six months, and for the offence under Section 15(c) to pay a fine of Rs.10,000/- and in default of payment of the fine to undergo simple imprisonment for three months. The vessel and the sale proceeds of the fish found in it were confiscated. Crl. Appeal No. 512 of 2001 filed by the petitioner challenging his conviction and sentence and Crl. Appeal No. 541 of 2001 filed by the first and second petitioners in Crl.R.P. No. 2351 of 2008, who are the owner of the vessel and the consignee of the fish respectively, challenging the confiscation were dismissed by the learned Sessions Judge (Adhoc-II), Ernakulam. In Crl.RP No. 2352 of 2008 the order of conviction and the sentence are challenged and in Crl.RP No. 2351 of 2008 the Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 **==> picture [31 x 8] intentionally omitted <==** order of confiscation is challenged. 3. Heard the learned senior counsel for the petitioner and the learned Public Prosecutor. 4. Certain facts are not disputed. The revision petitioner was the master of the foreign vessel, which was found in the Exclusive Economic Zone of India. He failed to stop the vessel when he was so required by the Coast Guard. The vessel was carrying about 670 tons of fish. It was frozen and kept in several packets, each containing 25 kg. 5. Section 10 of the Act provides that no foreign vessel shall, except under and in accordance with a licence granted under Section 4 by the Central Government, be used for fishing within the Maritime Zone of India. 6. Learned senior counsel for the petitioner submits that the vessel was not used for fishing in Exclusive Economic Zone of India and it was used only for transporting fish. Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 **==> picture [31 x 8] intentionally omitted <==** For this he relies on the fact that no equipments, tools, net or other things used for fishing were found in the vessel. The Commissioner who inspected the vessel reported that no such thing was found in the vessel. 7. Fishing has been defined under Section 2(c) of the Act as follows: “fishing” means catching, taking, killing, attracting or pursuing fish by any method and includes the processing, preserving, transferring, receiving and transporting of fish;” 8. The definition of fishing includes transportation of fish. Admittedly, the vessel was transporting fish. It had no licence granted by the Central Government for transporting fish through the Exclusive Economic Zone of India. So, I have no hesitation to hold that the vessel was used for fishing in the Exclusive Economic Zone of India. 9. The next submission of the learned senior counsel is that the State of Kerala had no Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 **==> picture [31 x 8] intentionally omitted <==** authority to prosecute the petitioner. He relies on the decision of the Supreme Court in Republic of Italy through Ambassador and Others v. Union of India & Others [(2013) 4 SCC 721]. That was a case in which an Italian ship was involved in an incident in which certain persons were allegedly killed by the crew. The incident happened in the Contiguous Zone of India. The apex court has observed: “... The incident of firing from the Italian vessel on the Indian shipping vessel having occurred within the contiguous zone, the Union of India is entitled to prosecute the two Italian marines under the criminal justice system prevalent in the country. However, the same is subject to the provisions of Article 100 of UNCLOS, 1982. I agree with Mr Salve that the “Declaration on Principles of International Law Concerning Family Relations and Cooperation between States in accordance with the Charter of the United Nations” has to be conducted only at the level of the Federal or Central Government and cannot be the subject-matter of a proceeding initiated by a Provincial/State Government.” It is further observed that the State of Kerala had no jurisdiction to investigate into the incident. 10.In the light of the judgment of the Supreme Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 **==> picture [31 x 8] intentionally omitted <==** Court referred to above, it is clear that the prosecution of the petitioner by the State of Kerala in this case is not legal. 11.The last submission of the learned senior counsel is that Section 19 empowers the court to take cognizance of an offence under the Act only on a report in writing of the facts constituting the offence made by an authorized officer. 12.The term “authorized officer” finds a place in Section 9 of the Act. Sub Section (1) of Section 9 runs thus: “Any officer of the Coast Guard constituted under the Coast Guard Act, 1978, or such other officer of Government as may be authrotised by the Central Government may, for the purpose of ascertaining whether or not the requirements of this Act have been complied with, either with or without a warrant,-” - 13.Admittedly, The Central Government had not issued any notification appointing an authorized officer as contemplated by Section 9(1) of the Act till 2016, when it issued SO Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 **==> picture [31 x 8] intentionally omitted <==** 209 (E) dated 13.06.2016. It follows that during the relevant period, no one had been authorized to initiate prosecution for any of the offences under the Act. The prosecution of the petitioner by the SHO, Harbour Police Station, Kerala was illegal. 14.For the two reasons stated above, I hold that the order of conviction and the sentence imposed on the petitioner are liable to be set aside. The vessel and the proceeds of the fish seized from the vessel were not liable to be confiscated. The order confiscating them also is liable to be set aside. In the result, Crl.M.C. No. 2352 of 2008 is allowed and the order of conviction of the petitioner for the offences under Sections 10 & 15(c) of the Act and the sentence imposed on him for the said offences are set aside. If the fine has been deposited by the petitioner, it shall be refunded to him. Crl.M.C. No. 2351 Crl.Rev.Pet.Nos. 2351 & 2352 of 2008 **==> picture [37 x 8] intentionally omitted <==** of 2008 also is allowed. The order of confiscation of the vessel and the proceeds of the sale of fish also is set aside. The bank guarantee furnished by the petitioner shall be released to the counsel for the petitioner. Sd/- ## **K.ABRAHAM MATHEW** **JUDGE** BKA/12.10.2018