MT Enrica Lexie and M/S Dolphin Tanker SRL v Circle Inspector of Police, Coastal Police Station, Neendakkara, Kollam; State of Kerala; Deputy Conservator, Cochin Port Trust; Mercantile Marine Department; Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934 WP(C).No. 6083 of 2012 (I) -------------------------- PETITIONERS: ------------- 1. MT ENRICA LEXIE, A VESSEL FLYING THE FLAG OF ITALY AND REGISTERED AT NAPLES OWNED BY M/S.DOLPHIN TANKER SRL VIA DEI FIORENTINI-21, NAPLES, ITALY REPRESENTED BY ITS POWER OF ATTORNEY H0LDER MR.ROBERT WILLIAM, AGED 68 YEARS, S/O.N.D.CHACKO, BRANCH MANAGER, JAMES MACKINTOSH & CO. PRIVATE LTD DARRAGH SMAIL CENTRE, 2ND FLOOR, 5TH CORSS ROAD WILLINGTON ISLAND, COCHIN-682 003. 2. M/S.DOLPHIN TANKER SRL,, AGED 68 YEARS VIA DEI FIORENTINI-21, NAPLES, ITALY REPRESENTED BY ITS POWER OF ATTORNEY H0LDER MR.ROBERT WILLIAM, S/O.N.D.CHACKO, BRANCH MANAGER JAMES MACKINTOSH & CO. PRIVATE LTD DARRAGH SMAIL CENTRE, 2ND FLOOR, 5TH CORSS ROAD WILLINGTON ISLAND, COCHIN-682 003. BY ADVS.SRI.V.J.MATHEW (SR.) SRI.P.K.SURESH KUMAR (SR.) SRI.BIJISH B.TOM SRI.VIPIN P.VARGHESE SMT.GISS ANTONY RESPONDENTS: -------------- 1. CIRCLE INSPECTOR OF POLICE COASTAL POLICE STATION, NEENDAKKARA, KOLLAM-691 582. 2. STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETRIAT THIRUVANANTHAPURAM-695 001. 3. DEPUTY CONSERVATOR COCHIN PORT TRUST, WILLINGTON ISLAND COCHIN-682 009. ## **W.P.(C) 6083/2012** **==> picture [14 x 9] intentionally omitted <==** 4. MERCANTILE MARINE DEPARTMENT - P.B.NO.3701, NORTH END P.O., WELLLINGTON ISLAND COCHIN-682 009. 5. UNION OF INDIA REPRESENTED BY ITS SECRETARY (MINISTRY OF SHIPPING), NEW DELHI-110 001. ADVOCATE GENERAL SRI. K.P. DANDAPANI. BY ADV. SRI.K.ANAND (A.201) BY ADV. SMT.LATHA KRISHNAN BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV. SRI.BASIL ATTIPETY (PARTY-IN-PERSON) BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **W.P.(C) 6083/2012** ## _**APPENDIX**_ ## _**PETITIONERS' EXHIBITS:**_ EXT.P1 THE TRUE COPY OF THE LETTER DATED 26.2.2012 ISSUED BY THE 1ST RESPONDENT TO THE MASTER OF THE 1ST PETITIONER VESSEL. EXT.P2 THE TRUE COPY OF THE LETTER NO. 35-NT(001)/2012 DATED 16.2.2012 ISSUED BY THE DIRECTORATE GENERAL OF SHIPPING, MUMBAI TO FRATELLI D' AMATO SpA. EXT.P3 THE TRUE COPY OF THE LETTER No. 19-CAS (13)/1889 DATED 17.2.2012 ISSUED BY THE 4TH RESPONDENT TO THE CHAIRMAN, COCHIN PORT TRUST. EXT.P4 THE TRUE COPY OF THE CERTIFICATE DATED 2.3.2012 ISSUED BY THE REGISTRAR GENERAL OF THIS COURT. EXT.P5 THE TRUE COPY OF THE LETTER DATED 2.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD TO THE 1ST RESPONDENT. EXT.P6 THE TRUE COPY OF THE LETTER DATED 2.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD. TO THE 3RD RESPONDENT. EXT.P7 THE TRUE COPY OF THE LETTER DATED 3.3.2012 ISSUED BY THE 3RD RESPONDENT TO JAMES MACKINTOSH & CO. PRIVATE LTD. EXT.P8 THE TRUE COPY OF THE LETTER DATED 2.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD. TO THE 4TH RESPONDENT. EXT.P9 THE TRUE COPY OF THE LETTER NO. 19-CAS(13) DATED 5.3.2012 ISSUED BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT. EXT.P10 THE TRUE COPY OF THE LETTER DATED 5.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD. TO THE Dy. INSPECTOR GENERAL OF COAST GUARD, FORT KOCHI TOETHER WITH THE ACKNOWLEDGMENT AND ADVICE OF THE COAST GUARD. EXT.P11 THE TRUE COPY OF THE CIRCULAR/MS NOTICE NO.7 OF 2012 DATED 7.3.2012 ISSUED BY THE DIRECTOR GENERAL OF SHIPPING. :2: ## **W.P.(C) 6083/2012** EXT. P12 THE TRUE COPY OF THE LETTER DATED 29.2.2012 ISSUED BY THE MASTER OF THE 1ST PETITIONER VESSEL TO THE COMMISSIONER OF POLICE, KOLLAM AT THE TIME OF HANDING OVER THE ORIGINAL LOG BOOKS OF THE VESSEL TOGETHER WITH ACKNOWLEDGEMENT. EXT.P13 THE TRUE COPY OF THE RECEIPT DATED 6.3.2012 ISSUED BY THE 1ST RESPONDENT ON RECEIVING THE VDR HARD DISK, FURUNO OPERATOR'S MANUAL AND CABLE CONNECTOR FROM THE 1ST PETITIONER VESSEL. EXT.P14 THE TRUE COPY OF THE RECEIPT DATED 6.3.2012 ISSUED BY THE FIRST RESPONDENT ON REEIVING THE ORIGINAL BA CHART NO. 1566 FROM THE 1ST PETITIONER VESSEL. ## RESPONDENTS' EXHIBITS/ANNEXURES: ANNEXURE I TRUE COPY OF THE ORDER DATED 23.2.2012 BY THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. - ANNEXURE II: TRUE COPY OF THE ORDER DATED 2.3.2012 BY THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. // TRUECOPY // P.S. TO JUDGE. Knc/- _**“CR”**_ P.S. GOPINATHAN, J. = = = = = = = = = = = W.P.(C) 6083 OF 2012 = = = = = = = = = = = = = DATED THIS, THE 29[th] DAY OF MARCH, 2012. ## _**J U D G M E N T**_ Petition under Article 226 of the Constitution of India. On 15.2.2012, two fishermen on a fishing vessel by name St. Antony were shot dead. It was alleged that the assailants were on board of a vessel by name MT Enrica Lexie', which is the first petitioner, owned by the second petitioner. Basing upon the First Information Statement a case as Crime No. 2 of 2012 of Coastal Police Station, Neendakara, for offence under Section 302 of the Indian Penal Code was registered. Consequently, the first respondent was intercepted by Coast Guard during her continued voyage and brought to Kochi and anchored. Subsequently, two security men on board the ship were arrested. After obtaining a search warrant from the Chief Judicial Magistrate Kollam, the vessel was thoroughly searched. Weapons and other connected articles were seized by the investigating officer. But the vessel was not allowed to leave the port. In the meanwhile, three Admiralty suits were instituted. As ordered by this Court, in M.F.A. 35/2012 (Admiralty)a sum of Rupees three crores and ten lakhs were deposited before the Registrar General. But no sanction was accorded to _**W.P.(C) 6083/2012**_ 2 sale the ship from Cochin Port limits. According to the petitioners, the respondents are withholding permission for sail of the vessel without any rhyme or reason. With these pleadings, the petitioners sought for a writ of mandamus or any other appropriate direction or order directing to grant permission for sailing of the first petitioner vessel and her master to leave and proceed her voyage. 2. The first respondent, on 5.3.2012 filed a statement that the investigation is not completed since the investigation could not be conducted for a period of ten days due to the non-cooperation of the first petitioner and that the vessel could be searched only after obtaining warrant from the Chief Judicial Magistrate, Kollam on 2.3.2012 and that the Forensic examination of the fire arms and other items is only progressing and the report would be received within fourteen days and that only thereafter, it could be decided whether the master of the ship is to be implicated and therefore, the first petitioner shall not be allowed to continue the voyage. 3. During the course of the argument, it was submitted that on 26.3.2012, a report under Section 102(3) of the Code of Criminal Procedure was filed before the Chief Judicial Magistrate, Kollam, reporting that the vessel was under the police custody and that the second petitioner had _**W.P.(C) 6083/2012**_ 3 preferred a petition as Crl. M.P. 1500/2012 under Section 457 Cr.P.C and therefore, the remedy open to the petitioners is to pursue the petition under Section 457 Cr.P.C. Copies of the report and the petition were made available. 4. The third respondent filed a statement that the third respondent has no objection for leaving the first petitioner provided the petitioner gets a clearance from the Police and Mercantile Departments. 5. On behalf o the 4[th] respondent, a statement is filed stating that the Director General of Shipping, Mumbai and Mercantile Marine Department have no objection to release the vessel as it was felt that the vessel need not be held any further for preliminary investigation conducted by the first respondent since all evidence from the vessel have been taken. The 4[th] respondent further stated that the first petitioner may be released on condition that the second petitioner shall present Master/Crew/Security Guards of the first petitioner before any competent authority or court in India in order to pursue the investigation further, if so required, at the cost of the second petitioner. 6. It is not in dispute that the investigating officer had made a thorough search of the first petitioner and all arms and other materials found relevant were seized. The plea of the learned Advocate General that after _**W.P.(C) 6083/2012**_ 4 getting report from the Forensic Science Laboratory there may be circumstance necessitating further search of the vessel. In the light of the report filed by the investigating officer under Section 102(3) Cr.P.C., I find no merit in the submission because it is specifically stated that search was conducted in the ship and documents and weapons involved in the offence were seized. From the report of the investigating officer, I find that the vessel was subject to the disposal of the Chief Judicial Magistrate, Kollam, as the custody of the same was no more warranted by the investigating officer. Therefore, I find that it is not appropriate to detain the vessel any more on the reason that Forensic Science Laboratory Report is not received. 7. As regards the disposal of the vessel, in pursuance to a petition under Section 457 of the Code of Criminal Procedure, I find that though the second petitioner has filed a petition under Section 457 Cr.P.C., the petitioners need not be shunted from this Court to the Court of the Chief Judicial Magistrate, Kollam, especially since the report was filed before that court during the pendency of this proceeding before this Court. Incidentally my attention is canvassed to the decision reported in Indrakumar v. State of Maharashtra (1989 Crl. L.J. 1439) wherein it is ruled that the person from whom the property is seized cannot bypass the magistrate who has to pass appropriate orders and rush to High Court and invoke its inherent _**W.P.(C) 6083/2012**_ 5 jurisdiction. In this case, it is pertinent to note that the investigating officer had not seized the vessel at the time when this writ petition was filed on 9.3.2012. Had the vessel been seized as and when it was anchored at Kochi and report filed, or at least after search, definitely the petitioners would have moved the Chief Judicial Magistrate, Kollam for release. So also, no written communication prohibiting the voyage was served on the petitioners. It is therefore, the petitioners approached this Court. When the first respondent filed statement on 5.3.2012 also, there was no case of seizure. It is three weeks thereafter the seizure now comes. It is also pertinent to note that because of the detention of the vessel, Master and crew members on vessel, reported to be 23 are also stranded in high seas. In this view of the matter, crew members are detained rather than the vessel. Therefore, I find that it is not appropriate to nonsuit the petitioners on the basis of a subsequent seizure made for no good purpose. The ratio of the above decision has no application to the case on hand. 8. The Apex Court, on time and again, cautioned that the vessels and vehicles seized for investigation shall not be unnecessarily detained causing loss to the owner of the vessel. See the decision reported in Sunderbhai Ambalal Desai v. State of Gujarat (2002(10) SCC 283 = 2002 KLT 1089). At para 7, the Apex Court has held as follows: _**W.P.(C) 6083/2012**_ 6 “In our view, the powers under Section 451 Cr.PC should be exercised expeditiously and judiciously. It would serve various purposes, namely; 1. owner of the article would not suffer because of its remaining unused or by its misappropriation; 2. Court or the police would not be required to keep the article in safe custody; 3. if the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and 4. this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.” Admitted panchanama and other relevant documents were already prepared and produced before court. 9. As alleged by the second petitioner, this vessel was detained since 15.2.2012. In the above circumstance and guided by the ruling of the Apex Court, I find that it would be appropriate to release the first petitioner to the second petitioner on conditions. In the result, this petition is allowed. There would be a writ of mandamus directing respondents 1 and 2 to allow the voyage of the first petitioner on the following conditions: _**W.P.(C) 6083/2012**_ 7 - i. The second petitioner shall execute a bond for Rupees three crores before the third respondent undertaking to produce the vessel/master/crew as and when called upon by respondents 3 to 5. - ii. The second petitioner shall file an affidavit before the third respondent undertaking that the vessel/master/crew of the first petitioner shall be produced before the third respondent as and when called upon on notice granting three weeks time. The learned Advocate General would submit that on getting the report from the Forensic Science Laboratory, in the event the other security guards are found involved, respondents 1 and 2 should be permitted to arrest the other security guards now on board the first petitioner. Till now none of the security guards on board are made as accused. However, it is clarified that in the event any of them are found involved with the offence alleged, this judgment would not hinder the course of investigation. knc/- P.S. GOPINATHAN, (JUDGE)