BRANCH C.1.0., TIRUNELVELI RANGE, TAMILNADUversusMARIYAANTONVIJAY

                    [2015] 7 S.C.R. 581


  THE STATE REP. BY THE INSPECTOR OF POLICE, 'Q'                A
   BRANCH C.1.0., TIRUNELVELI RANGE, TAMILNADU
                              v.
                   MARIYAANTONVIJAY
             (Criminal Appeal No. 836 of 2015)                  B

                       JULY01, 2015
                [VIKRAMAJIT SEN AND
             ABHAY MANOHAR SAPRE, JJ.]
                                                                c
 Code of Criminal Procedure, 1973: ss.3971482- Quashing
 of proceedings/Revision - Vessel stationed at 3. 8 nautical
 miles from baseline carrying huge quantity of arms and
 ammunition without valid authorisation and documents -
 Case registered against crew members under Arms Act, 1959      D
and other statutes - Investigation revealed that owner of the
 vessel had credited 40,476 US$ from USA to India in the
 account ofA-43 and the amount was handed over to A-38 for
purchasing the bulk quantity of diesel which was transported
to vessel - Cognizance of offence - Quashing/revision of        E
proceedings sought by accused persons - High Court held
that no prima facie case was made out under the Arms Act
and quashed the proceedings relating to offences
punishable under the Arms Act - Thereby, all the accused
except A-3 and A-38 were acquitted of the offences - On         F
State's appeal, Held: Prosecuting agency had collected
material during investigation to enable the Court to frame
appropriate charges for commission of the offences
punishable under the Arms Act and such material was             G
capable of being proved in evidence in accordance with law
- The very fact that huge quantity of arms and ammunition
were recovered from the possession and control of the crew
members from the vessel and that the crew members were
unable to satisfy their legal possession over such arms!        H
                            581
582      SUPREME COURT REPORTS                [2015] 7 S.C.R.


A ammunition with them by producing any evidence such as
  licenses, certificates etc. it was sufficient to attract the
  provisions of Arms Act - High Court while deciding the
  matters virtually acted as an appellate Court as if hearing
  appeals arising out of the final order and proceeded to
B examine each and every issue mentioned in the charge
  sheet by appreciating the material on record and applying
  the relevant provisions of various Acts, Rules and
  international treaties governing the controversy - This
  approach of High Court while hearing the case u/s.4821397
C was wholly unwarranted and cannot be upheld.
          Allowing the appeals, the Court

           HELD: 1. The High Court while deciding the
o matters virtually acted as an appellate Court as if he was
  hearing appeals arising out of the final order and
  proceeded to examine each and every issue mentioned
  in the charge sheet by appreciating the material on
  record and applying the relevant provisions of various
E Acts, Rules and international treaties governing the
  controversy. This approach of the High Court while
  hearing the case under section 482 of the Code, was
  wholly unwarranted, illegal and cannot be upheld.
  [Paras 91to93] [618-D, F-H; 619-A]
F
           2. Six reasons given by the High Court were not
  the reasons which could be made basis to invoke the
  inherent jurisdiction of the High Court. For quashing the
  charge-sheet, those six factual reasons had nothing to
G do with the jurisdiction of the court while entertaining
  the charge sheet. Apart from the fact as to whether such
  reasons were relevant or not, the fact remained that none
  of them were of any avail unless each reason was
  proved by the evidence adduced by both parties during
H trial. [Para 94) [619-B-C]
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   583
                     MARIYA ANTON VIJAY

        3. It cannot be disputed that prosecuting agency         A
had collected material during investigation to erii:itlle the
Court to frame appropriate charges for commission of
the offences punishable under the Arms Act and such
material was capable of being proved in evidence in
accordance with law to enable the Trial Court to reach           B
any conclusion as to whether a case of conviction or
acquittal is made out or not. The very fact that huge
quantity of arms and ammunition were recovered from
the possession and control of the crew members from
the vessel and further during investigation, the crew            C
members were unable to satisfy their legal possession
over such arms/ammunition with them by not being able
to produce any evidence such as licenses, certificates
etc. it was sufficient to attract the provisions of Arms Act
                                                                 0
for initiating prosecution of the accused for commission
of the offences punishable under the Arms Act, namely,
for possessing unlicensed and unauthorized arms/
ammunition on the vessel. [Paras 95, 96] [619-0-G]

        4. The questions as to whether the vessel in             E
question was found in Indian sea waters, or outside
Indian territory, whether the vessel was in distress and
if so, for what reasons, what steps were taken by the
crew members on the vessel to come out of the distress           F
call given by them to the Indian authorities at Indian port
and whether steps allegedly taken in that behalf were in
conformity with the relevant clauses of UNCLOS which
govern the subject, whether the accused persons were
having any valid licenses and certificates issued by            G
statutory authorities under the applicable laws so as to
enable them to possess and carry with them the arms/
ammunition including prohibited categories of arms/
ammunition on the vessel, what was the nature of
business in whic,h .the vessel was engaged and whether          H
584       SUPREME COURT REPORTS                [2015] 7 S.C.R.


A owner of the vessel was having a license to do that
  business which enabled them to possess and carry such
  arms/ammunition in huge quantity, why amount of 40476
  US dollars (Rs.20 lakhs in Indian currency) was credited
  by the owner of the vessel (A-1 & A-2) from US to the
B accounts of some accused persons in their accounts in
  India (HDFC Bank, Chennai), whether such amount was
  used for purchase of diesel which was recovered from
  the deck of the vessel or it was used for doing some
  other illegal activity etc. were some of the material
C questions, which had a bearing over the issues involved
  in the case. Admittedly, these factual questions could be
  answered one way or other on the basis of evidence to
  be adduced by the parties in the trial but not otherwise.
  In other words; none of these questions were capable
0
  of being answered without the aid of evidence to be
  adduced by the parties, by mere reading of FIR, Final
  report, charge sheet, for the first time by the High Court
  in exercise of its inherent jurisdiction. Similarly, the High
E Court had no jurisdiction to appreciate the materials
  produced like an appellate court while hearing the
  petition under Section 482 of the Code or/and Revision
  Petition under Section 397 of the Code. [Paras 97, 98,
  99] [619-H; 620-A-H; 621-A]
F
      State of Madhya Pradesh vs S.B. Johari & Ors. (2008)
      2 sec 57 - relied on.

         5. The High Court erroneously went into the
  questions of fact, appreciated the materials produced in
G support of charge sheet, drawn inference on reading the
  statements of the accused, and applied the law, which
  according to the High Court, had application to the facts
  of the case and then came to a conclusion that no prima
H facie case had been made out against any of the accused
  for their prosecution under the Arms Act. This approach
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   585
                    MARIYA ANTON VIJAY

of the High Court while deciding petition under Section A
482 of the Code was wholly illegal and erroneous. [Para
103] (621-G-H; 622-A]

        6. The High Court committed yet another error
when it recorded the finding that provisions of Arms Act         s
 is not applicable to the case in hand and in any event
 are otherwise not applicable by virtue of Section 45(a)
 and hence no accused person can be prosecuted for
 any of the offences punishable under the Arms Act. This
finding was also not legally sustainable and deserves            C
to be set aside for more than one reason. In the first
place, this finding could not have been recorded by the
High Court either way till the prosecution and the
defence had led their full evidence. Secondly, it could
be done only in the trial and depending upon the                 D
decision rendered by the trial court on this issue, the
High Court in an appeal arising out of final order of the
trial court could have examined this issue in its appellate
jurisdiction at the instance of accused or State, as the
case may be. Thirdly, interpretation made by the High           E
Court of Section 45(a) is wholly unsustainable. The
question that needs to be examined is what is the true
interpretation of Section 45 of the Arms Act and, in
particular, clause (a) of Section 45. Section 45 of the Arms     F
Act sets out certain type of cases to which the provisions
of Arms Act are not made applicable. These cases are
specified in clause (a) to clause (d) of Section 45. In other
words, if the case of the accused falls in any of the
clauses of Section 45 and he is able to satisfy the             G
requirement of such clause then such accused cannot
be prosecuted for commission of any offence punishable
unqer the Arms Act. He is then held exempted from the
applicability of the Arms Act Mere perusal of the section
would go to show that it applies only to those arms/            H
586      SUPREME COURT REPORTS              [2015] 7 S.C.R.


A ammunition stored on board of any sea-going vessel,
  which forms part of the "ordinary armament or
  equipment of such vessel". In other words, in case if
  the accused seeks to place reliance on Section 45(a) to
  avoid his prosecution under the Arms Act then it is
B necessary for him to prove that arms/ammunition stored
  on the vessel were "forming part of the ordinary
  armament or equipment" of the vessel. The qualifying
  words to seek exemption are "forming part of the
  ordinary armament or equipment of the vessel." The
C question as to whether arms/ammunition form part of
  the ordinary armament or equipment of any vessel is a
  question of fact. The accused has to, therefore, satisfy
  that the arms/ammunition seized from the vessel are, in
  fact, part of the ordinary armament or equipment of their
0
  vessel and hence were exempted from the operation of
  the Arms Act by virtue of Section 45 (a). The object of
  Section 45(a) is to give exemption from applicability of
  the Arms Act to those arms/ammunition, which form part
E of any ordinary armament or equipment of the vessel
  and not to all arms/ammunition on the vessel. It cannot,
  therefore, be construed to mean that Section 45(a) enable
  every vessel to carry any number of arms/ammunition
  regardless of its purpose, necessity and requirement to
F carry such arms/ammunition on the vessel. [Paras 104
  to 111] [622-B-H; 623-A-B, D-H; 624-A-B]

  7. Now coming to the facts of the case in hand, firstly,
  there was no evidence adduced by the accused to prove
G that huge quantity of arms and ammunition including
  prohibited category of arms which were seized from the
  ve_ssel formed part of the ordinary armament or
  equipment of their vessel within the meaning of Section
  45(a) of the Arms Act. Secondly, this stage had in fact
H not reached and in the meantime, the High Court
  STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.1.D., T. N. v.   587
                   MARIYA ANTON VIJAY

interfered with causing prejudice to the rights of the          A
parties and especially to the prosecution, who were
unable to prove their case and lastly, in the absence of
any finding on this issue, the impugned order cannot be
sustained. Therefore, this was a case where the High
Court should have dismissed the revision filed by the           B
accused under Section 397 and also the petition filed
under Section 482 of the Code and remanded the case
to the Trial Court to proceed in the case to enable the
prosecution to adduce evidence on merits in support of
the charge sheet after framing of the charges and also          C
allow the defence to lead their evidence so as to bring
the case to its logical conclusion in accordance with law.
The law laid down by this Court in Bhajan Lal and S.B
Johari's case was not applied properly. The trial court,
                                                                0
which has seized of the case out of which these matters
arise, is directed to proceed with the case and decide
the same on merits in accordance with law.[Paras 112,
115, 117, 119] [624-C-E; 628-E-G; 629-C, E-F]

  State of Madhya Pradesh v. S. B. Johari & Ors. (2008) 2       E
  sec 57 - relied on.
  State of Haryana & Ors v. Bhajan Lal & Ors. 1990
  (3) Suppl. SCR 259:1992 Supp (1) sec 335;
  Gunwantlal v. The State of Madhya Pradesh 1973 (1)            F
  SCR 508: ( 1972) 2 SCC 194; Republic of Italy through
  Amba~sador& Ors. v. U.0.1. & Ors. 2013 (4) SCR 595:
  (2013) 4 sec 721 - referred to.

                   Case Law Reference                           G
1990 (3) Suppl. SCR 259          referred to.        Para 45
(2008) 2 sec 57                 · relied on.         Para 45
1973 (1) SCR 508                  referred to.       Para 56
2013 (4) SCR 595                 .referred to.       Para 72    H
588         SUPREME COURT REPORTS                 [2015] 7 S.C.R.


A         CRIMINAL APPELLATE JURISDICTION : Criminal
      Appeal No. 836of2015
       From the Judgment and Order dated 10.07.2014 of the
  Madurai Bench of Madras High Court in Crl. O.P. (MD) No.
B 6719 of2014

                                WITH

           Criminal Appeal No. 837 of2015

c          K. Ramamoorthy, Subramonium Prasad,AAG, Ram J.
      Thalapathy, J. Janani, M. Yogesh Kanna for the Appellant.

        C. A. Sundaram, Rohini Musa, Zafar lnayat, Hari V. B.,
  Viju Abraham, Nazia Hasan, Sajith P. Warrier, P. B. Suresh,
D Vipin Nair, Vishnu S. Jain for the Respondents.

           The Judgment of the Court was delivered by

           ABHAY MANOHAR SAPRE, J. (1) Leave granted.

E      (2) These appeals are filed by the State against the
  common final judgment and order dated 10.07 .2014 passed
  by the Madurai Bench of the Madras High Court in Crl.
  R.C.(MD)No. 204 of2014 and Crl. O.P. (MD) No. 6719 of2014
  whereby the High Court partly allowed the criminal revision
F case and the criminal original petition filed by the accused
  persons.

         (3) The relevant facts giving rise to these appeals though
  have been set out in great detail in the impugned judgment of
G the High Court, have to be recapitulated in order to enable us
  to give our own reasons keeping in view the law laid down by
  this Court in the decisions referred to hereinbelow. The
  material facts mentioned herein are taken from impugned
  judgment, charge sheet/final report and the special leave
H petitions.
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   589
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

      (4) The appellant is the State of Tamil Nadu represented A
through the Inspector of Police "Q" Branch of CID Tirunelveli
Range and Thoothukudi, Tamil Nadu whereas the respondents
are the accused persons.

       (5) On 11.10.2013, the Indian Coast Guard Thoothukudi s
received an information that one Vessel named "M. V. Seaman
Guard Ohio" was stationed at 10.8 Nautica1 miles from
Vilangusuhi Island of lndiafThoothukudi Port and 3.8 Nautical
miles away from the baseline promulgated by the Ministry of
External Affairs, Government of India vide Notification No. SO- C
1197 (E) 11.05.2009. The Vessel was located within the
territorial seawaters of India. The information received also
revealed that one unidentified boat from Thoothukudi coast
was suspected to have sailed to the Vessel for doing some
kind of illegal activities on the vessel with the connivance of D
crew members on the vessel.

       (6) On the basis of information received, the Indian Coast
Guard Station Ship "Naikidevi" intercepted the suspected
vessel. On reaching there, the sleuths of the Coast Guard E
questioned the crew members and inquired as to whether they
possessed any arms, ammunitions, guards etc. on the vessel?
On being questioned, the crew members candidly admitted
that they do possess and were carrying with them arms and
ammunitions on the vessel.                                        F

      (7) On such disclosure being made admitting therein that
the vessel was carrying arms/ammunition, the Coast Guard
Ship directed M.V. Seaman Guard Ohio to weigh anchor and
proceed to Tuticorin Port for further investigation by the G
concerned agencies. The vessel was accordingly escorted
under the supervision of Captain KPP Kumar along with 3
armed guards of Indian Coast Guard Station. The vessel
reached the port around 13.25 hrs on 12.10.2013.
                                                               H
590        SUPREME COURT REPORTS                   [2015) 7 S.C.R.


A        (8) The joint interrogation team was accordingly
  constituted comprising of representatives of Indian Coast
  guard, Customs Department and other agencies. The team
  members visited the vessel on the same day, i.e., 12.10.2013
  at 14.00 hrs. and undertook thorough inspection of the vessel.
B The team members also interrogated the crew members
  staying on the vessel. It continued till the next day (13.10.2013),
  which inter a/ia revealed that the vessel was carrying huge
  quantity of arms/ammunition without any valid authorization and
  documentation by the crew members. It was further revealed
C that the vessel had received diesel in bulk quantity from one
  Indian fishing boat illegally few days back after the vessel
  entered in Indian Sea waters.

       (9) The vessel was accordingly handed over to Coastal
D Security Group Thoothukudi on 13.10.2013. Mr. Narendran-
  Assistant Commandant Boarding Officer of Indian Coast
  Guard Ship, Naikidevi lodged a written complaint with the
  Tharuvaikulam Marine Police Station, Tuticorin stating the
  aforementioned facts with details, which had come to their
E knowledge while inspecting the vessel.

         (10) On receipt of the report, imm~diatelythe Inspector
  of Police Marine PS Tharuvaikulam registered a First
  Information Report (in short "FIR") in Cr.No. 18/2013 under
F Section 25 (1 B) (a) and (f) of the Arms Act, 1959 read with
  Section 3(b) and Section 7 (1) (a) (ii) of the Essential
  Commodities Act, 1955 read with Section 2(m) (5) of Motor
  Spirit and High Speed Diesel (Regulation of Supply, Distribution
  and Prevention of Malpractices) Order 1990.
G
         (11) The registration of FIR led to deeper investigation
  into the matter. However, looking to the seriousness of the
  matter, the DGP Tamil Nadu, by order dated 15.10.2013 in
  RC No 176936/crime/ IV (2)/2013 transferred the case to "Q"
H Branch, CID for further investigation.
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   591
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

       (12) The sleuths of CID Branch accordingly took up the A
investigation and visited the vessel on 16.10.2913 (MV
Seaman Guard Ohio Vessel), which was by that time brought
to the V.O.C. Thoothukudi port. After inspecting the vessel,
the team made necessary sketches and directed the vessel
to remain at the port under the custody of Port authorities to B
enable them to carry out thorough investigation. It was revealed
that around 35 crew members were stationed on the vessel
out of which 11 were Indian national whereas remaining were
foreign nationals.
                                                                c
      (13) On 17.10.2013, the investigation team again visited
the vessel to collect more information. During this visit, it was
found that 35 firearms, 5682 ammunition and 102 magazines
were kept in the vessel without any documents and
authorization certificates. These arms and ammunition were D
accordingly seized after doing physical verification on
18.10.2013. The investigating team also intimated to the Court
of Judicial Magistrate-II, Thoothukudi about the factum of
seizure of arms/ammunition made by them. Independent
witnesses attested the seizure of arms/ammunition made by E
the team members.

       (14) On 18.10.2013, three crew members on the vessel
described as A-4 A-6 and A-37 were arrested whereas other
two, A-3 and A-5, were allowed to remain in vessel for doing F
maintenance work on their request. These arrests were made
after observing necessary legal formalities.

     (15) On 19.10.2013, the other two crew members, A-3
andA-5, were also arrested, as none of the crew members, G
namely, A-3 to A-37, including the Captain of the vessel, who
was under legal obligation to carry with him the necessary
documents during voyage, were able to produce any document
such as licenses issued by the statutory authorities or
authorization orders issued by any competent,,authority as H
592       SUPREME COURT REPORTS                  [2015] 7 S.C.R.


A required under the Arms Act or/and any other law akin to Arms
  Act of any country in relation to the seized arms/ammunition to
  show thafthey were duly authorized to possess and carry these
  arms/ammunition for their own use while on the vessel.

B       (16) The seized firearms and ammunition were
  accordingly remanded to the judicial custody on 18.10.2013
  and kept at the armory of CISF Thoothukudi as ordered by the
  Court. On 19.10.2013, Maria Anton Vijay (A-38) was arrested
  whereas Vijay (A-39), Ranjit Kumar (A-40), Murgesh (A-41)
C and Selvam (A-42), crew members, were arrested on
  20.10.2013. On 24.10.2013, Paul David Dennish Towers (A-
  4), Lalit Kumar Gurung (A-6) and Radhesh Dhar Dwivedi (A-
  7) crew members were taken to police custody for interrogation
  where their voluntary confessions were recorded. Later on, they
D were also arrested.

         (17) Pursuant to the disclosure made, the investigating
   team again visited the vessel on 27.10.2013 and recovered
   certain documents in relation to the seized weapons movement
 E and e-mail transactions exchanged between the owner of the
   vessel- Advanfort Company USA and the crew members
   stationed at the vessel. The investigating team also seized
   about 2000 liter diesel kept in 10 barrels on the deck, which
   was purchased by the crew members on 11.10.2013 when
 F the vessel was in territorial waters of India and anchored
   therein.

         (18) It was further revealed that the owner of the vessel
  had credited 40,476 US$ (around Rs.20 lakhs) from USA to
G India through HDFC, Chennai account of A-43 bearing No.
  50200000105782. Thereafter,A-43 had credited Rs.10 lakhs
  in HDFC account of A-41 (Ale No. 11041050004770) who, in
  turn, had withdrawn Rs. 7 lakhs on 09.10.2013 and handed over
  the same toA-38 to enable him to purchase the bulk quantity
H diesel, which was transported to the vessel with the help of
    STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.        593
       MARIYA ANTON VIJAY [ABHAY MANOHAR SAP RE, J.]

fishing boats successfully.                                            A

      (19) On 31.10.2013, the seized arms/ammunition were
sent to Tamil Nadu Forensic Sciences Department, Chennai
for analysis and diesel samples collected from 10 barrels were
sent to Hindustan Petroleum Corporation Limited, Chennai for B
its analysis under the orders of the Court.

       (20) On 08.11.2013 the ballistics report was received
which confirmed that out of 49 items of arms/ammunition, item
Nos. 16 to 21 were prohibited arms/ammunition as defined              c
under Section 7 of the Arms Act whereas rest were ordinary
firearms.

       (21) Investigation also revealed that the vessel in question
 belongs to A-1, which is a company known as "Advanfort               D
 Company" having its office at 1875 Eye Street, MW 51h floor
Washington DC-2006, USA and its Operations Director isA-
 2-Mr. Mohamed Frajallah. BothA-1 andA-2 were responsible
for all clandestine acts and deeds done by them with the
 connivance of crew members. Likewise, as mentioned above,            E
A-3, who was the Captain of the vessel, and A-4, who was
Tactical Deployment Officer of the vessel were found in physical
possession of 35 illegal and unauthorized firearms and other
ammunition without any valid documents and were thus found
directly involved in the entire operation. Likewise, A-5 to A-37,     F
who were crew members on the Board, were equally found
involved in joint operation with A-3 and A-4 and were
accordingly found responsible for commission of various
offences registered against them so also A-38 to A-45, who
were found involved in supply of bulk quantity of diesel and          G
other items to the crew members for running 1vessel and,
t~erefore, found responsible for commission of the offences
registered against them under various Acts as detailed in the
FIR
                                                                      H
594         SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A           (22) After completion of the investigation which was
      based on spot inspection of the vessel and other places as
      disclosed by the accused persons during their interrogation,
      examination of witnesses, seizure of documents, arms/
      ammunition, various articles from the vessel and other places,
B     opinion of statutory authorities on seized items, opinion of
      public prosecutor and sanction order obtained from competent
      authorities for filing prosecution case under the Arms Act, a
      detailed charge sheet along with several documents and other
      materials collected during investigation was filed by the
C     investigation officer against the respondents herein (A-1 to A-
      45) on 30.12.2013 before the Judicial Magistrate Court No. 1
      Thoothukudi bearing PRC No.1 of2014 seeking prosecution
      of the accused persons (A-1 to A-45) for commission of
      offences punishable under Sections 33, 35 and 3 read with
0
      Section 25 (18) (a), Section 7 read with 25 (1-A), Section 10
      read with Section 25 (1-8) (f) oftheArmsAct 1959 and Rule
      30 of the Arms Rules, 1962, Section 36 (2) read with Section
      30 of the Arms Act and Section 3 (2) (d) read with Section
E     7(1)(a)(ii) of the Essential Commodities Act, 1955 and Order
      2(e)(v)(vi) of the Motor Spirit and High Speed diesel(Regulation
      of Supply Distribution and Prevention of Malpractices) Order
      1998 and Section 120-8 of IPC.

 F      (23) On perusal of charge sheet and enclosed materials,
  the Court took cognizance of the case and accordingly on
  20.01.2014 issued non-bailable warrants against A-1
  (Advanfort Company) andA-2 (Mohamed Frajallah Director
  Operations), who are the resident of USA (Washington) for
G their arrest and appearance in the Court in connection with
  the commission of aforementioned offences along with other
  accused named above. However, two accused (A-1 andA-2)
  are still not apprehended despite issuance of non-bailable
  warrants against them, which remain unexecuted. Similarly,
H A-43, A-4•f and A-45 are also not yet apprehended and
    STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.1.0., T. N. v.     595
       MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]
                                                                     .
 absconding.                                                        A

      (24) So far as the other accused, i.e., A-3 to A-41 are
 concerned, though they were arrested on different dates, some
 were enlarged on bail by the Trial Court and remaining by the
 High Court on different dates on terms imposed on them.       B
                                                  ~·
                                                  >

        (25) This led to filing of two criminal cases by the accused
  persons before the Madurai Bench of Madras High Court. So
 far as accused A-38 is concerned, he filed Criminal
  Revision(MD) No. 204/2014 under Section 397 of Criminal           c
 Procedure Code, 1973 (hereinafter referred to as ''the Code")
 wherein the challenge was to the cognizance taken by the
 Judicial Magistrate of the charge sheet seeking to prosecute
 A-38 for commission of several offences detailed therein. So
 far asA-3 toA-37 are concerned, they filed Crl.O.P. (MD) No. D
 6719 of 2014 under Section 482 of the Code wherein they
 also sought quashing of the iinal report/charge sheet filed
 seeking to prosecute them for commission of various offences
 detailed therein.
                                                                     E
       (26) By common impugned judgment/order, the learned
 Single Judge of the High Court partly allowed both the cases.
The High Court quashed the charge sheet/final report filed
 against all the accused persons insofar as it related to offences
 punishable undertheArmsActare concerned. It was held that F
no prima facie case has been made out on the facts set out in
the charge sheet to prosecute any of the accused persons for
commission of any offence punishable under the Amis Act and
hence charge sheet/final report filed by the State prosecuting
agency for commission of various offences punishable under G
the Arms Act against all the accused persons .to that extent
deserves to be quashed at the threshold, It was accordingly
quashed to that extent.
                                                   ~




      (27) The High Court, however, upheld th~ filing of the H
596         SUPREME COURT REPORTS                  [2015] 7 S.C.R.


A charge sheet against A-3 and A-38 for their prosecution in
  relation to the offences punishable for violating the Control
  Order, 2005 punishable under Section 3 (ii) (d) read with
  Section 7 (1) (a) (ii) of the Essential Commodities Act, 1955
  (in short "the EC Act"}, holding that prima facie case against
B these accused for commission of offences under the EC Act
  is made out and hence these accused persons have to face
  trial on merits insofar as the offences punishable under the
  said Act are concerned.

 C          (28) It is apposite to reproduce the operative portion of
      the order of the High Court in paragraph 43 infra,

        "In fine, I find that the prosecution of the accused
        for the offences under the Arms Act, 1959 is not
 D      maintainable. Hence, the prosecution of the
        petitioners in both petitions under the Arms Act,
        1959 is quashed. Mariya Anton [A38] will be liable
        for prosecution for violating the Control Order, 2005
        punishable under Section 3(ii)(d) r/w 7(1 )(a)(ii) of the
 E      Essential Commodities Act, 1955. DudinikValentyn
        [A3), the Captain of the Ship will be liable for
        abetment of the offence committed by Mariya Anton
        [A38] under the Essential Commodities Act within
        the Indian territorial waters.
 F
         The cognizance taken by the learned Judicial
         Magistrate for offences under the Arms Act is set
         aside.

         Accordingly, the Criminal Original Petition and the
 G
         Criminal Revision Case stand partly allowed.
         Consequently, M.P.Nos. 1&2/2014 in Crl.R.C(MD)
         No. 204/2014 and M.P.Nos. 1,2&4/2014 in
         Crl.O.P.(MD)No.6719/2014 are closed."
                  ~:
 H
            (29) The effect of the impugned order is that only two
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.     597
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

accused namely A-3 and A-38 will have to face prosecution in A
relation to the offences punishable for allegedly violating the
conditions of the Control Order, 2005 issued under the
Essential Commodities Act. In other words, all the accused
persons (A-3 to A-45) stand discharged insofar as offences
punishable under the Arms Act are concerned whereas the B
charge sheet/final report filed against two accused, A-3 and
A-38, in relation to offences punishable under the Essential
Commodities Act is held legal and proper and, therefore, trial
on merits would be held against A-3 and A-38 in relation to
offences punishable under the Essential Commodities Act.        C

      (30) Aggrieved by the said judgment/order of the High
Court, the State has filed these appeals byway of special leave
before this Court.
                                                                  D
      (31) This is how the controversy is brought before this
Court to examine the legality and correctness of the impugned
order passed by the High Court.

      (32) The question which arise for consideration in these E
appeals is whether the High Court was justified in quashing
the charge sheet in part in exercise of powers under Section
397 or/and Section 482 of the Code at the instance of accused
persons insofar as it related to the offences punishable under
the Arms Act?                                                  F

      (33) Heard Mr. K. Ramamoorthy, Mr. C.A. Sundaran,
learned senior counsel Mr. Hari Narayan V.B and Mr. P.B.
Suresh, learned counsel for the parties.

      (34) Mr. K. Ramamoorthy, learned senior counsel for the G
State, the appellant herein while assailing the ·legality and
correctness ofthe impugned order, urged several contentions.
He contended that the High Court erred in quashing ~he charge
sheet in relation to offences punishable under the Arms Act H
against all the accused. According to him, the entire approach
                      "

598        SUPREME COURT REPORTS                     [2015] 7 S.C.R.


A of the High Court in entertaining the criminal revision and
  petition filed under Section 482 of the Code seeking to quash
  the charge sheet filed against the accused persons was per
  se illegal and erroneous being against the well settled principle
  of law laid down by this Court in a catena of decisions.
B
        (35) Elaborating his submissions, learned senior counsel
  contended that firstly, there was no basis factually or/and legally
  to invoke the revisionary power under Section 397 or/and
  inherent power under Section 482 of the Code for quashing
C the charge sheet at the threshold.
          (36) Secondly, learned counsel contended that having
   regard to the nature of controversy and the materials collected
   during investigation coupled with the admitted fact that huge
o  quantity of unlicensed, unauthorized arms/ammunition including
   prohibited arms were recovered from the vessel were sufficient
   to attract the provisions of the Arms Act for prosecuting the
   accused persons as it was enough for holding that prima facie
   these accused persons have committed the offence punishable
 E under the Arms Act rendering them liable to face the prosecution
   in accordance with law.

         (37) In any case, according to learned counsel, the issues
   involved in this case were such that it required full trial on merits
 F and for that the prosecution should have been afforded an
   opportunity to prove their case set up in the charge sheet by
   adducing evidence in support of the contents of the charge
   sheet.

 G       (38) Thirdly, learned counsel contended that this was not
   a case where the High Court could have formed any opinion
   or as a matter of fact was in a position to form any opinion by
   simple reading the contents of the charge-sheet and perusing
   the materials collected in support of the charge sheet for holding
 H that no prima facie case under the Arms Act against any of the
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   599
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.)

accused was made out or that allegation made in the charge A
sheet were so absurd that no trial on such facts was legally
possible and if it was allowed to be held then it would have
amounted to sheer abuse of exercise of powers and
harassment to all accl)sed.
                                                                 B
      (39) On the other hand, learned counsel contended that
mere reading of the charge sheet running into several pages
coupled with the materials filed in support thereof and more
importantly, the admitted fact that unlicensed and unauthorized
arms/ammunition in huge quantity were recovered from the C
vessel which was in possession and control of crew
members(accused persons) fully justified prima .facie that
prosecution of accused for the offences punishable under the
Arms Act was called for requiring them to face trial on merits
in accordance with law.                                         D

      (40) Fourthly, learned counsel contended that the High
Court committed yet another jurisdictional error wl:ien it decided
the matter like an appellate court and in this process
appreciated the factual allegations made in the charge sheet E
and documents/materials filed along with the charge sheet
which were yet to be proved in evidence and further committed
an error in proceeding to draw inferences therefrom for holding
that no prima facie case was made out against any of the
accused persons for commission of the offences punishable F
under the Arms Act. Such approach of the High Court,
according to the learned counsel, being against the well settled
principle of law laid down by this Court in many decisions has
rendered the impugned order bad in law.
                                                                G
       (41) Fifthly, learned counsel contended that the High Court
failed to keep in mind the subtle distinction between the powers
which are exercised by the High Court while deciding criminal
appeal arising out of final order of conviction and the powers
which are exercised by the High Court while deciding petition H
                                                            . .. ... .. .. . -
                                                                  ~




600          SUPREME COURT REPORTS                     [2015] 7 S.C.R.


A     under Section 482 of the Code.

         (42) lri the former category of cases, according to learned
  counsel, the High Court is fully empowered to probe into the
  issues offacts and the law as also empowered to appreciate
B the entire evidence for recording findings whereas in the later
  category of cases, the High Court is empowered to examine
  only jurisdictional issues arising in the case on admitted facts
  without going into any appreciation of such facts and evidence.
  Since the High Court, according to learned counsel, failed to
C keep this well settled distinction in mind and proceeded to
  decide the matters like an appellate court, it has rendered the
  impugned order wholly unsustainable.

             (43) Sixthly, learned counsel contended that the High
o     Court failed to see that once the charge sheet was filed and
      its cognizance taken, by the magistrate, the case was required
      to be committed to the Session Court for trial on merits in
      accordance with law so thcit the issue is brought to its logical
      conclusion one way or other, i.e., either resulting in conviction
E     or acquittal of the accused. · ·

             (44) In this case, acco'rding to learned counsel, before
      this stage could arrive, the High Court intervened without there
      being any justification by invoking its inherent jurisdiction under
F     Section 482 and quashed the charge sheet in part. Such
      exercise of jurisdiction by the High Court has rendered the
      impugned order bad in law.·                    ·

       · (45) Seventhly, learned counsel contended that the High•
G Court though mentioned the law laid down by this Court in State
  of Haryana & Ors Vs Bhajall Lal & Ors. (1992 supp (1)
  SCC 335) and State of Madhya Pradesh Vs S.B. Johari &
  Ors. (2008) 2 SCC 57 but unfortunately failed to examine the -
  faC'~S of the case in hand in the light of the law laid down in
H these two cases much less in its proper perspective.          ·
    STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.1.0., T. N. v.   601
       MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

        (46) It was, therefore, his submission that if the facts of A
 the case in hand had been examined in the light of law laid
 down in the case of S.B Johari's case (supra) because the
 facts of the case in hand and the one involved in S.B. Johari's
 case (supra) were more or less identical on all material issues,
 then the High Court would have upheld the charge sheet in its B
 entirety.

        (47) Eighthly, learned counsel contended that the case
 in hand did not involve any jurisdictional issue such as (1)
 despite there being a requirement to obtain prior statutory C
 sanction to file the charge sheet, no sanction was obtained or
 (2) lack of an authority of a person who has filed the charge
sheet or (3) the contents of the charge-sheet were so vague,
inadequate or/and absurd that even after reading them as a
whole it did not constitute prima facie case against any D
accused undertheArmsAct etc. so as to enable the High Court
to entertain the petition under section 482 of the Code.

        (48)According to learned counsel, these being usually
 the grounds raised by the accused to challenge the FIR/ charge E
 sheet/final report in a petition under Section 482 of the Code
 in the High Court no such ground really existed even prima
 facie in favour of any accused on facts/law so as to enable the
 High Court to quash the charge sheet by invoking inherent
jurisdiction of the High Court treating this case to bethe rarest F
of the rare.

       (49) Ninthly, learned counsel contended that in this case
there should have been a trial which would have enabled the
prosecution to adduce evidence in support of the charges and, G
in turn, would have enabled the accused to lead evidence in
defence. This not having been done, has caused prejudice to
the prosecution because despite collecting evidence against
the accused, the prosecution was deprived of their right to
prove their case against any accused on merits in trial. This H
                                               ·:
602        SUPREME COURT REPORTS                    (2015] 7 S.C.R.


A has also rendered the impugned order bad in law.

         (50) Tenthly, learned counsel contented that the High Court
   erred in travelling into the factual matrix of the whole controversy
   without there being any evidence on record and, therefore,
 B erred in recording factual findings on several material factual
   issues arising in the case such as whether the vessel in
   question was in Indian sea water and if so its effect, what was
   the nature of business in which the vessel was engaged,
   vessel's registration to do business etc., the effect of
 C registration on the controversy in question, whether vessel was
   enjoying the benefit of innocent passage as provided in
   (UNCLOS) in sea waters and if so its effect, whether vessel
   was in distress at any time and if so, whether it ensured
    compliance of the relevant clauses of United Nations
 D Convention on the law of Sea (UNCLOS) providing remedial
    measures to follow in such eventuality and how these clauses
    were complied with·, whether there was any conspiracy to
    commit any offence and if so, how?

 E       (51) It was his submission that in no case the High Court
   could have gone into any of the aforementioned material factual
   issues arising in the case in a petition filed under Section 482
   of the Code because all being purely factual issues, could be
   gone into only in an inquiry made by the Trial Court on evidence
 F in accordance with law.

          (52) Eleventhly, learned Counsel contended that the High
   Court further erred in not examining the effect of recovery of
   unauthorized/unlicensed arms/ammunition from the possession
 G and control of the accused lying in vessel and also the accused
   persons not being able to produce any documents of title in
   relation to the seized arms/ammunition or/and any certificate/
   license issued by the competent <Juthorities to prove their right
   to possess and carry along with them such arms/ammunition
 H on the vessel.
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   603
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAP.RE, J.]

     (53) Non-consideration of these material issues and A
without recording any finding thereon has, according to learned
counsel, rendered the impugned order bad in law.

       (54) Twelfthly, learned counsel contended that the High
Court grossly erred in holding thattheArms Act does not apply B
to the vessel in question and, in consequence, cannot be
applied against the accused persons. It was his submission
th~t the interpretation made by the High Court of Section 45
(a) was not in conformity with the Object of the Act. According
to learned counsel, due to erroneous interpretation of Section C
45 (a) made by the High Court, the accused person got the
benefit which otherwise they were not entitled to get. The finding
on this issue, therefore, deserves to be set aside.

       (55) Learned counsel further maintained that Section 45 o
 (a) does not apply to the case in hand and in any event,
according to him, the question as to whether benefit of
exemption as provided under Section 45 (a) is available to
the accused or not can be decided only when the accused
persons are able to prove in their defence by adducing E
adequate evidence that the ingredients of Section 45 (a) are
fully satisfied by them. This, according to learned counsel, was
not proved by the accused persons because no documents
were produced by them during investigation and before they
could be called upon to adduce evidence in trial, the High Court F
invoked the inherent powers and interfered in the investigation
by quashing it. The finding on this issue is, therefore, against
the plain reading of Section 45 (a) and renders the impugned
order legally unsustainable.
                                                                 G
       (56) Lastly, learned counsel placed reliance on the
decisions of this Court reported in Bhajan Lal case (supra),
S.B. Jo)lari case (supra) and Gunwantlal vs The State of
Madhya Pradesh, (1972) 2 SCC 194 and prayed that
applying the law laid down in these cases to the facts of the H
604         SUPREME COURT REPORTS·                 [2015] 7 S.C.R.


A case in hand, these appeals deserve to be allowed by setting
  aside the impugned order and remanding the case to the
  concerned trial court for conducting full trial on merits in
  accordance with law.

 B      (57) In reply, learned senior counsel Mr. C.A. Sundaram,
  and Mr. Hari Narayan V.B, and Mr. P.B. Suresh appearing for
  the respondents-accused supported the impugned order and
  contended that no case is made out to interfere in the
  impugned order. Learned counsel elaborated their
C submissions in support of the reasons recorded by the High
  Court by referring to counter affidavits and various documents
  on record.

            (58) Having heard learned Counsel for the parties at
 o    length and on perusal of the entire record of the case, we find
      force in various submissions urged by the learned senior
      counsel for the State.

            (59) Before we deal with aforementioned various
 E submissions, we consider it apposite to take note as to how
      and in what manner the High Court decided the issues in the
      impugned order. Indeed, it is necessary to keep this fact in
      mind in the light of the submissions of the learned counsel.

 F       (60) Out of 61 pages in which the impugned judgment
   was rendered, first 4 Paragraphs (pages 1 to 14) were devoted
   by the learned Single Judge in mentioning factual matrix of the
   case. This was followed by mentioning submissions of the
   parties in Paras 5 to 9 (15 to 30 pages) followed by the
 G discussion, findings and conclusion in Paras 10 to 43 (pages
   31to61).
            (61) After narrating the submissions, the Single Judge
      in Para 10 began his discussion with following observations:-

 H          " ......... Initially, this Court did not want to even
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.1.D., T. N. v.   605
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

  admit this quash petition and cro~s the Lakshman               A
  Rekha in view of the caution sounded by the
  Supreme Court in the aforesaid judgment. But, the
  following aspects prompted this Court to break
  away from the self imposed barrier and peep to see
  if there is any legitimacy in the prosecution. Even            B
  according to the Police, M.V. Seaman Guard Ohio
  is a Flag Ship registered in Sierra Leone, a U.N.
  Member State."

       (62) Immediately, after the aforementioned observations, C
the Single Judge set out the reasons in the same para which,
according to him, prompted him to break the "Laxman Rekha"
(expression used in the impugned order) due to peculiar facts
for invoking inherent powers to interfere. These reasons are
reproduced in verbatim infra:                                   D

  "(1) Even according to the police, M.V.Seaman Guard
  Ohio is a flag Ship registered in Sierra Leone, a
  U.N.Member State. ·
                                                                E
  (2) The majority in the ship's crew are Indian
  nationals with Indian passports (8 names are
  mentioned i.e. A-6 to A-13).

  (3) The Chief cook, who hails from Uttaranchal State,
                                                                F
  has also joined in the conspiracy and made
  accused along with others.

  (4) As regards the security guards, four are Indians
  (A-31, A-33, A-34, and A-37).
                                                                G
  (5) The central Agencies like Intelligence Bureau,
  ORI etc. got involved on 12 & 13.10.2013 and
  thereaftet they handed over the matter to the State
  Police to be investigated as any other ordinary
  municipal offence.                                            H
606         SUPREME COURT REPORTS                   [2015] TS.C.R.


A       (6) The "Q" branch CID of the Tamil Nadu Police is
        an elite investigating unit and has got a very good
        track record of cracking down terrorists and
        extremists. After their investigation, they were able
        to file a final report only for possession simplicter
 8      of prohibited firearms and for violation of control
        order under the Essential Commodities Act and
        nothing more. In other words, the final report does
        not even show any needle of suspicion about the
        involvement of the crew members and others in the
 c      ship in any crime that is prejudicial to the interest
        of this country."

            (63) After setting out 6 reasons, the learned Single Judge
      in para 10 observed as under:-
 D
        "Therefore, for the aforesaid reasons, this Court
        ventured to go into the final report and the
        accompanying documents to find out, even if by
        accepting the entire averments found therein as
 E      gospel truth, would it attract a prosecution under
        the Arms Act and the Essential Commodities Act?"

         (64) Then in Para 11 the Single Judge rejected the
   defence submission on the ground that the ship was not within
 F the Indian territorial Sea and holds that it being a question of
   fact cannot be looked into while deciding the petition under
   Section 482 of the Code, which reads as under:-

         "The learned counsel for the defence submitted that
 G       the ship was not within the Indian territorial sea. In
         my considered opinion, this is a disputed question
         of fact which cannot be looked into while dealing
         with a petition under Section 482 Cr.P.C. Therefore,
         this Court will go under the premise that the ship
 H       was within 12 Nautical Miles and was in the territorial
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   607
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPE, J.]

  sea of India."                                                 A
      (65) Thereafter in para 12, the Single Judge formulated
the question for decision which reads as under ;

  "Now the line of enquiry is, can the crew and the
                                                                 8
  guards in the ship be prosecuted for possession
  of prohibited arms under the Arms Act?"

       (66) Thereafter in Para 13, the Single Judge observed
that it is legitimate for the Court to take "judicial notice of
certain notorious facts" and then set out facts relating to C
piracy, which we consider has nothing to do with the case in
hand being general iri nature. However, it is worth reproducing
herein below:

  "13. It will be legitimate for this Court to take judicial    D
  notice of certain notorious facts and those facts are
  as follows:

     Merchant vessels all over the world are not
     permitted to carry arms. Piracy in and around              E
     Indian Ocean, especially by Somali Pirates, is a
     fact which has been taken note of by the
     Government of India, as could be seen from the
     Preamble to the circular dated 28.09.2011 issued
     by the Director General of Shipping, Ministry of           F
     Shipping, Government of India [which is also a
     document relied upon by the prosecution and
     supplied to the accused], which runs as under:

    "The menace of piracy continues unabated in                 G
    spite of increased naval presence in the Gulf of
    Aden region and merchant ships being asked to
    comply with best management practices which
    includes establishment of "Citadel".
                                                                H
608        SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A      The Hon'ble Supreme Court has also taken note of
       this, as could be seen from the judgment in
       Republic of Italy through Ambassador and others
       vs. Union of India and others reported in (2013) 4
       sec 121:
 B
          "The past decade has witnessed a sharp
          increase in acts of piracy on the high seas off
          the coast of Somalia and even in the vicinity of
          the Minicoy islands forming part of the
C         Lakshadweep archipelago."

       The Government of India has recognized the fact
       that th_ere are private maritime security companies
       that provide security for merchant vessels while
o      they traverse through pirate infested locations. This
       is evident from the circular dated 28.09.2011 issued
       by the Director General of Shipping, which is
       referred to ab~ve and is being strongly relied upon
       by the pr.osecution.
 E
       Apart from taking judicial notice of the aforesaid
       facts, this Court is constrained to bear in mind the
       following two facts that are admitted by the
       prosecution. Even ~ccording to the prosecution,
 F     M.V. Seaman Guard Ohio is a ship, registered with
       Sierra Leone and Registration Certificate is part of
       the final report and is one of the documents that is
       relied upon by the prosecution.

G       It is not the case of the prosecution that M.V.
        Seaman Guard Ohio is an unregistered vessel or a
        pirate vessel."

         (67) Then in Paras 14, 15 and 16, the Single Judge took
 H note of the issues relating to grant of registration of vessel, the
   nature of business carried on by the owner of the vessel with
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.     609
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

the use of vessel and the effect of both the issues on the whole A
controversy involved in this case.

      (68) The Single Judge th.en proceeded to consider these
issue on merits after taking into account the entries in log book,
GPS register, the registration certificate, the statement of B
Captain recorded during his interrogation by joint investigation
team where he had explained the functioning of the guards
posted in the ship, minutes of investigation team drawn during
inspection of the vessel, and lastly, the names of Indian crew
members.                                                           C

       (69) The Single Judge appreciated the aforesaid
material/documents and then after appreciation concluded that
the vessel in question is a ship registered in Sierra Leone and
is doing anti piracy business.                       ·          D

      (70) The concluding portion of Para 16 reads as under:-

  " .........Therefore, I have no doubt in my mind that
  M.V. Seaman Guard Ohio is a ship registered in
  Sierra Leone and is into Antipiracy business."                  E

      (71) In Para 17, the Single Judge formulated the question
as to whether the Indian Arms Act applies to the prohibited
arms on the Board of the flagship.
                                                                  F
  "The next line of enquiry is does the Indian Arms
  Act apply to the presence of prohibited arms on
  board the Flag Ship M.V. Seaman Guard Ohio?"

     (72) This issue was then considered by the learned           G
  Judge in Paras 18 to 22 after referring to Section 4 (2) of
  IPC, the law laid down by this Court in Republic of Italy
  through Ambassador & Ors. Vs U.0.1. & Ors. (2013)
  4 SCC 721, and certain Articles of UN CLOS 1982 and
  held that the crew and guards of the vessel cannot be           H
610        SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A      prosecuted for the offence punishable under the Arms
       Act for possessing simpliciter prohibited arms on board
       of the vessel. This finding is recorded in Para 22 and it
       reads as under:
       " ........ Therefore, I hold thatthe crew and the guards
 B     of M.V. Seaman Guard Ohio cannot be prosecuted
       for the offence under the Arms Act for possession
       simpliciter of prohibited arms on board their vessel."

        (73) Then in Para 23, the learned Judge observed that
C the aforesaid issue could be examined from yet another angle,
  namely, as to whether the vessel in question was in distress
  and secondly, whether it was sailing in the innocent passage
  in the sea waters?
              ....
 D       (74) This issue was considered in Paras 23 to 29 after
   taking into_ account the entries in logbook, GPS register,
   contents of final report, and applying Section 4( 1) of Territorial
   Waters, Continental Shelf, Exclusive Economic Zone and other
   Maritime Zone Act 1976, and Articles 18 (2) and 19 of
 E UNCLOS.

         (75) In Para 29, the Single Judge held that anchoring of
   the vessel was within Indian territorial seawaters and that the
   vessel was sailing out of necessity and hence their action is
 F saved by the principle of "innocent passage" as defined in UN
   Conventions (UNCLOS). The Single Judge held that none of
   the crew members can, therefore, be prosecuted for any of
   the offences punishable under the Arms Act. Para 29 reads
   as under:
 G
        "To sum up, I hold that the anchoring of M.V.
        Seaman Guard Ohio within our territorial sea was
        out of necessity and their action is saved by the
        principle of 'innocent passage' contemplated by
 H      Sec~?" 4(1) of the Territorial Waters, Continental
       ••   . ~   '   '   J ~
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.          611
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

   Shelf, Exclusive Economic Zone and Other Maritime                    A
   Zone Act, 1976 and Articles 18 and 19 of UNCLOS
   and therefore, the Crew and the Security Guards
   cannot be prosecuted for an offence under the
   Arms Act."
                                                              B
       (76) In Para 30, the Single Judge then dealt with the
question as to whether the vessel (ship) violated clauses 7.3
and 7.5 of Circular dated 28.09.2011 issued by Director
General of Shipping and then went into factual matrix of the
whole controversy and came to the conclusion on this issue in C
the following words:

   " ........ That apart, this Circular would apply only to
   a foreign ship visiting Indian port. In this case, I have
   given a finding that the said Ship was drifting and                  o
   out of necessity it had come into the Indian waters
   and had anchored at the Outer Port Limits (OPL) of
   Tuticorin Port. This Ship never had the intention of
   visiting the Indian Ports, because the Captain was
   waiting for further instructions from its owners as                  E
   to what the next move should be for getting
   provisions and fuel.. .... "

     (77) After recording the aforesaid finding, the learned
judge held that the ship did not violate the requirements               F
adumbrated in the said circular which reads as under:-

      " ......... Hence, I am of the opinion that the Ship
   has not violated the requirements adumbrated in
   the said Circular issued by the Director General of                  G
   Shipping."

             (78) The Single Judge then in Para 32 framed a question
viz.

   "Assuming for a moment that the ship, which has                      H
612          SUPREME COURT REPORTS                   [2015) 7 S.C.R.


A        been registered as an "utility vessel" in Sierra Leone
         has changed its status, can the captain, crew
         members and others on board the ship be
         prosecuted in India for violation of the registration
         granted by Sierra Leone?
B
        (79) The learned judge in the next sentence held "The
  answer is an obvious "No". He then referred to the
  statement of Mr. Senthil Kumar, Captain and after appreciating
  the contents of the statement held that breach bf registration
C of the vessel will not give any right to Indian prosecuting
  authorities to prosecute the accused under Indian Laws but
  such right is available only to prosecuting agencies to prosecute.
  the accused in Sierra Leone.

o            (80) The learned judge then proceeded to consider the
      next issue as to whether any case for breach of condition of
      the Notification dated 20.04.2012 issued under Section 457
      of the Merchant Shipping Act, 1958 read with the Rules framed
      thereunder is made out o~ the facts set out in the charge sheet?
E
         (81) The learned Judge in Paras 33 and 34 dealt with
  this issue and held that in the light of findings already recorded
  in favour of the accused persons and on interpretation of Rules
  3 and 4 of the Merchant Shipping Rules, no case for violation
F of any of the conditions is made out against the accused. In
  paragraph 34, the Single Judge held as under:-

        "(b) The maximum punishment is Rs. 1,000/ for the
      · violation of this Notification. Violation of this
G       Notification cannot lead to the inference that they
        have committed offences under the Arms Act."

         (82) The learned Judge then considered the last issue
  regarding applicability of Section 45 (a) of the Arms Act in
  Para 36. Without any discussion, the learned judge held that
H in the light of finding already recorded thatthe Indian authorities
  STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   613
     MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.)

cannot invoke Arms Act against the accused, the provisions A
of Section 45 (a) of the Arms Act, in any event, will otherwise
protect the accused, i.e., crew members and the guards on
the vessel from being prosecuted, under the Arms Act.

       (83) The learned Judge then in Paras 37 and 38 held B
that in the light of findings already recorded, no case is made
out against any of the accused to prosecute them for
commission of any offence undElr the Arms Act. However, the
learned Judge went on to hold against the two accused thatA-
3 and A-38 are liable to be prosecuted for commission of C
offences punishable under the Control Order, 2005 read with
Section 7 (1) (a) (ii) of the Essential Commodities Act for
purchase of fuel which was alleged to have been purchased in
violation of the Control Order. While recording finding on this
issue, the learned Judge referred to Section 81 of !he IPC.     D

      (84) We have purposefully mentioned supra in detail the
various findings recorded by the Single Judge only with a view
to show the approach and the manner in which the learned
Judge decided the case and eventually allowed it in part in E
favour of the accused.

      (85) The question as to how, in what manner and to what
e)5tent, the inherent powers of the High Court under Section
482 of the Code are exercised for quashing the registration of F
FIR/final report/charge sheet/complaint etc. are no more res
integra arid settled by several decisions of this Court.

      (86) One leading case on this question is Bhajan Lal's
case (supra) and the other is S.B.Johari's case (supra) G
apart from many others.

     (87) So far as the case of Bhajan Lal (supra) is
concerned, following proposition of law is laid down:

  "102. In the backdrop of the interpretation of the            H
614      SUPREME COURT REPORTS                [2015] 7 S.C.R.


A     various relevant provisions of the Code under
      Chapter XIV and of the principles of law enunciated
      by this Court in a series of decisions relating to the
      exercise of the extraordinary power under Article
      226 or the inherent powers under Section 482 of
B     the Code which we have extracted and reproduced
      above, we give the following categories of cases
      by way of illustration wherein such power could be
      exercised either to prevent abuse of the process of
      any court or otherwise to secure the ends of justice,
c     though it may not be possible to lay down any
      precise, clearly defined and sufficiently channelised
      and inflexible guidelines or rigid formulae and to
      give an exhaustive list of myriad kinds of cases
      wherein such power should be exercised.
D
      (1) Where the allegations made in the first
      information report or the complaint, even if they are
      taken at their face value and accepted in their
      entirety do not prima facie constitute any offence
E     or make out a case against the accused.

      (2) Where the allegations in the first information
      report and other materials, if any, accompanying the
      FIR do not disclose a cognizable offence, justifying
F     an investigation by police officers under Section
      156(1) of the Code except under an order of a
      Magistrate within the purview of Section 155(2) of
      the Code.

G     (3) Where the uncontroverted allegations made in
      the FIR or complaint and the evidence collected in
      support of the same do not disclose the
      commission of any offence and make out a case
      against the accused.
H
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   615
   MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J]

 (4) Where, the allegations in the FIR do not                 A
.constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
 Magistrate as contemplated under Section 155(2)
of the Code.                                                  B

.(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient              C
ground for proceeding against the accused.

(6) Where there is an express legal bar en grafted in
any of the provisions of the Code or the concerned
Act(underwhich a criminal proceeding is instituted)           o
to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.                                          E

(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a                  F
view to spite him due to private and personal
grudge.

103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should           G
be exercised very sparingly and with
circumspection and that too in the rarest of rare
cases; that the court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made             H
616         SUPREME COURT REPORTS                 [2015] 7 S.C.R.


A       in the FIR or the complaint and that the
        extraordinary or inherent powers do not confer an
        arbitrary jurisdiction on the court to act according
        to its whim or caprice."

B           (88) As far as S.B. Johari (Supra) case is concerned.
      following proposition of law is laid down:

        "4. In our view, it is apparent that the entire approach
        of the High Court is illegal and erroneous. From the
c       reasons recorded by the High Court, it appears that
        instead of considering the prima facie case, the
        High Court has appreciated and weighed the
        materials on record for coming to the conclusion
        that charge against the respondents could not have
D       been framed. It is settled law that at the stage of
        framing the charge, the court has to prima facie
        consider whether there is sufficient ground for
        proceeding against the accused. The court is not
        required to appreciate the evidence and arrive at
E       the conclusion that the materials produced are
        sufficient or not for convicting the accused. If the
        court is satisfied that a prima facie case is made
        out for proceeding further then a charge has to be
        framed. The charge can be quashed ifthe evidence
F       which the prosecutor proposes to adduce to prove
        the guilt of the accused, even if fully accepted before
        it is challenged by cross--examination or rebutted
        by defence evidence, if any, cannot show that the
        accused committed the particular offence. In such
G       case, there would be no sufficient ground for
        proceeding with the trial. In Niranjan Singh Karam
        Singh Punjabiv. Jitendra Bhimraj Bijjayya, (1990) 4
        SCC 76, after considering the provisions of Sections
        227 and 228 CrPC, the Court posed a question,
H
        whother at the stage of framing the charge, the trial
 STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.                                                                                           617
    MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

court should marshal the materials on the record                                                                                                       A
of the case as he would do on the conclusion of
the trial. The Court held that at the stage offraming
the charge inquiry must necessarily be limited to
deciding ifthe facts emerging from such materials
constitute the offence with which the accused                                                                                                          B
could be charged. The court may peruse the
records for that limited purpose, but it is not
required to marshal it with a view to decide the
reliability thereof. The Court referred to earlier
decisions in State of Biharv. Ramesh Singh, (1977)                                                                                                    c
4 SCC 39, Union of India v. Praful/a Kumar
Samal,(1979) 3 SCC 4 and Supdt & Remembrancer
of Legal Affairs, W.B. v. Anil Kumar Bhunja,(1979) 4
SCC 274 and held thus: (SCC p. 85, para 7)
                                                                                                                                                      D
   "From the above discussion it seems well settled
   that at the Sections 227-228 stage the court is
   required to evaluate the material and documents
   on record with a view to finding out if the facts
   emerging .therefrom taken at their face value                                                                                                      E
   disclose the existence of all the ingredients
   constituting the alleged offence. The court may
   for this limited purpose sift the evidence as it
   cannot be expected even at the initial stage to
                                                                                                                                                      F
   accept all that the prosecution states as gospel
   truth even if it is opposed to common sense or
   the broad probabilities of the case."

                                                                               (emphasis supplied)
                                                                                                                                                      G
5. •••
     •••••••I I I   I I 1 1 I I I I   I I• 1 I I I I I I   I I   I 1,1 I I I   I I I I   I I   I I I• I I   I I I   I I I   I I I I   I I I   I I I




6. In our view the aforesaid exercise of appreciating
the materials produced by the prosecution at the
stage offraming of the charge is wholly unjustified.                                                                                                  H
618        SUPREME COURT REPORTS                     [2015] 7 S.C.R.


A       The entire approach of the High Court appears to
        be as if the Court was deciding the case as to
        whether the accused are guilty or not. ................... "

         (89) Keeping the aforementioned principles of law in
 B mind and applying the same to the facts of the case in hand,
   we have no hesitation to hold that the High Court erred in
   allowing both the criminal cases filed by the accused persons
   thereby erred in quashing the charge sheet at the threshold.

 c          (90) In our considered opinion, both the cases out of
      which these appeals arise, deserve to be dismissed thereby
      enabling the prosecuting agency to prove the charges against
      the accused persons in a trial on merits in accordance with
      law. This we say for the following reasons.
 D
          (91) It is apparent from mere reading of the impugned
   order that the entire approach of the High Court while deciding
   the petition was illegal and erroneous. It looks so apparent
   that instead of considering the prima facie case, the High Court
 E appreciated and weighed the materials on record for coming
   to the conclusion that the charge sheet against the respondents
   could not have been filed and if filed no charges could have
   been framed against the respondents on the basis of such
   charge sheet, for facing trial.
 F
          (92) As rightly argued by the learned senior counsel for
   the appellant (State), the Single Judge while deciding the
   matters virtually acted as an appellate Court as if he was
   hearing appeals arising out of the final order and proceeded
 G to examine each and every issue mentioned in the charge
   sheet by appreciating the material on record and applying the
   relevant provisions of various Acts, Rules and international
   treaties governing the controversy.

        (93) This approach of the High Court while hearing the
 H case under section 482 of the Code, in our considered view,
    STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.    619
       MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

 was wholly unwarranted, illegal and thus cannot be upheld. A
 Having rightly observed by the Single Judge in the beginning
 that he cannot cross "barrier" while hearing the petition under
 Section 482 yet committed an error by crossing the barrier.

         (94) As noted above, six reasons given by the High Court, B
 iri our opinion, were not the reasons which could be made basis
 to invoke the inherent jurisdiction of the High Court. For
quashing the charge-sheet, those six factual reasons had
nothing to do with the jurisdiction of the court while entertaining
the charge sheet. Apart from the fact as to whether such C
reasons were relevant or not, the fact remained that none of
them were of any avail unless each reason was proved by the
evidence adduced by both parties during trial.

       (95) It cannot be disputed that prosecuting agency had o
collected material during investigation to enable the Court to
frame appropriate charges for commission of the offences
punishable under the Arms Act and such material was capable
of being proved in evidence in accordance with law to enable
the Trial Court to reach any conclusion as to whether a case of E
conviction or acquittal is made out or not?

        (96) The very fact that huge quantity of arms and
 ammunition were recovered from the possession and control
of the crew members from the vessel and further during F
 investigation, the crew members were unable to satisfy their
legal possession over such arms/ammunition with them by not
being able to produce any evidence such as licenses,
certificates etc. it was sufficient to attract the provisions of Arms
Act for initiating prosecution of the accused for commission of G
the offences punishable under the Arms Act, namely, for
possessing unlicensed and unauthorized arms/ammunition on
the vessel.

      (97) The questions as to whether the vessel in question H
620       SUPREME COURT REPORTS                  [2015) 7 S.C.R.


A was found in Indian sea waters, or outside Indian territory,
  whether the vessel was in distress and if so, for what reasons,
  what steps were taken by the crew members on the vessel to
  come out of the distress call given by them to the Indian
  authorities at Indian port and whether steps allegedly taken in
B that behalf were in conformity with the relevant clauses of
  UNCLOS which govern the subject, whether the accused
  persons were having any valid licenses and certificates issued
  by statutory authorities under the applicable laws so as to
  enable them to possess and carry with them the arms/
C ammunition including prohibited categories of arms/
  ammunition on the vessel, what was the nature of business in
  which the vessel was engaged and whether owner of the vessel
  was having a license to do that business which enabled them
  to possess and carry such arms/ammunition in huge quantity,
0
  why amount of 40476 US dollars (Rs. 20 lakhs in Indian
   currency) was credited by the owner of the vessel (A-1 & A-2)
   from US to the accounts of some accused persons in their
   accounts in India (HDFC Bank, Chennai), whether such amount
E was used for purchase of diesel which was recovered from
   the deck of the vessel or it was used for doing some other
   illegal activity etc.

          (98) These were some of the material questions, which
 F had a bearing over the issues involved in the case. Admittedly,
   these factual questions could be answered one way or other
   on the basis of evidence to be adduced by the parties in the
   trial but not otherwise.
         (99) In other words, none of the aforementioned questions
 G were capable of being answered without the aid of evidence
   to be adduced by the parties, by mere reading of FIR, Final
   report, charge sheet, for the first time by the High Court in
   exercise of its inherent jurisdiction. Similarly, the High Court
 H had no jurisdiction to appreciate the materials produced like
   an appellate court while hearing the petition under Section 482
   STATE REP. BY INSP. OF POLICE, J' BRANCH C.l.D., T. N. v.     621
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

of the Code or/and Revision Petition under Section 397 abid.       A

       (100) As rightly argued by the learned senior counsel
for the appellant, the law laid down by this Court in S.B. Johari's
case (supra) squarely applies to the facts of the case in hand
in favour of the State.                                             B

      (101) S.B. Johari's case (supra) was also a case where
 the High Court had qu~shed the charge at the instance of
 accused persons in exercise of its inherent jurisdiction by
 appreciating the material filed by the prosecution along with c
charge-sheet. The High Court therein had held that no case
was made out on the basis of the contents of the charge sheet
and the material filed in support thereof as in the opinion of the
High Court, it was insufficient to frame the charge against the
accused for their prosecution for commission of offence o
punishable under Section 5(1 )(d) and (2) of the Prevention of
Corruption Act. The accused were accordingly discharged by
the High Court without compelling them to face the trial on
merits.
                                                                  E
      (102) In an appeal filed by the State against the order of
the High Court, this Court allowed the State's appeal, set aside
the order of the High Court and upheld the charge sheet and
the charges which were framed by the trial court and laid down
the law which we have reproduced in para 88 above.               F

       (103) Coming back to the facts of this case, the High
Court committed the same error which was committed by the
High Court in S.B. Johari's case (supra) because in this case
also the High Court went into the questions of fact, appreciated G
the materials produced in support of charge sheet, drawn
inference on reading the statements of the accused, and
applied the law, which according to the High Court, had
application to the facts of the case and then came to a
conclusion that no prima facie case had been made out against H
622        SUPREME COURT REPORTS                   [2015) 7 S.C.R.


A any of the accused for their prosecution under the Arms Act.
  This approach of the High Court, in our considered view while
  deciding petition under Section 482 of the Code was wholly
  illegal and erroneous.

 B       (104) In our considered opinion, the High Court
   committed yet another error when it recorded the finding that
   provisions of Arms Act is not applicable to the case in hand
   and in any event are otherwise not applicable by virtue of
   Section 45(a) and hence no accused person can be
 C prosecuted for any of the offences punishable under the Arms
   Act. This finding, in our considered view, is also not legally
   sustainable and deserves to be set aside for more than one
   reason.

 o         (105) In the first place, this finding could not have been
      rec~rded by the High Court either way till the prosecution and
   the defence had led their full evidence. Secondly, it could be
   done only in the trial and depending upon the decision
   rendered by the Trial Court on ttiis issue, the High Court in an
 E appeal arising out of final.order of the Trial Court could have
   examined this issue in its appellate jurisdiction at the instance
   of accused or State, as the case may be. Thirdly, interpretation
   made by the High Court of Section 45(a} is wholly
   unsustainable.
 F
         (106) This takes us to the next question as to whether
   the High Court was justified in properly interpreting Section
   45(a) oftheArmsAct? In other words, the question that needs
   to be examined is what is the true interpretation of Section 45
 G of the Arms Act and, in particular, clause (a) of Section 45.

          (107) Section 45 of the Arms Act sets out certain type of
   cases to which the provisions of Arms Act are not made
   applicable. These cases are specified in clause (a) to clause
 H (d) of Section 45. In other words, if the case of the accused
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.    623
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

falls in any of the clauses of SeGtion 45 and he is able to satisfy A
the requirement of such clause then such accused cannot be
prosecuted for commission of any offence punishable under
the Arms Act. He is then held exempted from the a'pplicability
of the Arms Act. Section 45 {a) with which we are concerned
reads as under:                                                     B

   "45. Act not to apply in certain cases. -

   Nothing in this Act shall apply to -

   (a) Arms or ammunition on board any sea-going                   c
   vessel or any aircraft and forming part of the
   ordinary armament or equipment of such vessel or
   aircraft."

        (108) Mere perusal of the aforequoted section would go D
to show that it applies only to those arms/ ammunition stored
on board of any sea-going vessel, which forms part of the
"ordinary armament or equipment of such vessel". In other
words, in case if the accused seeks to place reliance on
Section 45(a) to avoid his prosecution under the Arms Act then E
it is necessary for him to prove that arms/ammunition stored
on the vessel were "forming part of the ordinary armament
or equipment" of the vessel .

     (109) The qualifying words to seek exemption are F
"forming part of the ordinary armament or equipment of
the vessel."

       (110) The question as to whether arms/ammunition form
part of the ordinary armament or equipment of any G
vessel is a question of fact. The accused has to, therefore,
satisfy that the arms/ammunition seized from the vessel are,
in fact, part of the ordinary armament or equipment of their
vessel and hence were exempted from the operation of the
Arms Act by virtue of Section 45 (a) ibid.                   H
624       SUPREME COURT REPORTS                  [2015)7 S.C.R.


A       (111) The object of Section 45(a) is to give exemption
  from applicability of the Arms Act to those arms/ammunition,
  which for~ part of any ordinary armament or equipment of the
  vessel and not to all arms/ammunition on the vessel. It cannot,
  therefore, be construed to mean that Section 45(a) enable
B every vessel to carry any number of arms/ammunition
  regardless of its purpose, necessity and requirement to carry
  such arms/ammunition on the vessel.

         (112) Now coming to the facts of the case in hand, we
C find that firstly, there was no evidence adduced by the accused
  to prove that huge quantity of arms and ammunition including
  prohibited category of arms which were seized from the vessel
  formed part of the ordinary armament or equipment of their
  vessel within the meaning of Section 45(a) of the Arms Act.
D Secondly, this stage had in fact not reached and in the
  meantime, the High Court interfered with causing prejudice to
  the rights of the parties and especially to the prosecution, who
  were unable to prove their case and lastly, in the absence of
  any finding on this issue, the impugned order cannot be
E sustained.

        (113) We are also of the considered view that the issue
  involved in this case should have been tried keeping in view
  the law laid down by this Court in the case of Gunwantlal
F (supra) along with several other legal provisions of Acts/Rules
  and International Treaties.
         (114) In the case of Gunwantlal (supra), while upholding
  the framing of charge for an offence punishable under Section
G 25(a) of the Arms Act, this Court remanded the case to the
  Sessions Court for trial. While examining this issue, this Court
  interpreted the expression "possession" used in Section
  25(a) of the Act. Justice P. Jaganmohan Reddy, speaking for
  the Bench held as under:
H
 STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.O~· T. N. v.   625
    MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

"4. The main question in this case is whether on               A
the facts alleged if true and at this stage 'nothing
can be said about the truth or otherwise of that
allegation, the appellant can be said            to
                                               be in
possession of the revolver for being charged with
an offence under Section 25(a) of the Act. Section             B
25(a) insofar as it is relevant states:

   "whoever acquires, has in his possession or
   carries any firearm or ammunition in
   contravention of Section 3... shall be punishable          c
   with imprisonment for a term which may extend
   t9 three years, or with fine or with bo~h".
 5. What is meant by possession in the context of
this section? Is it that the person charged should            D
 be shown to be in physical possession or is it
sufficient for the purposes of that provision that he
has constructive possession of any firearm or
ammunition in contravention of Section 3 which
prohibits him to be in such possession without a              E
licence. It may be mentioned that under Section 19
of the Arms Act, 1878, an offence corresponding to
Section 25(1 )(a) is committed if a person had in his
or under his control any arms or ammunition in
contravention of Sections 14 and 15 of that Act. The          F
word "control" under Section 25(1)(a) has been
omitted. Does this deletion amount to the
Legislature confining the offence only to the case
of a person who has physical possession          or
                                                does
                                                              G
it mean that a person will be considered to be in
possession of a firearm over which he has
constructive possession or over which he
exercises the power to obtain possession thereof
when he so intends? If the meaning to be given to
                                                              H
626      SUPREME COURT REPORTS               [2015] 7 S.C.R.


A     the word "possession" is that it should be a
      physical possession only, then certainly the charge
      as framed on the facts of the prosecution case will
      not be sustainable but if the meaning to be given to
      the word "possession" is wider than that of actual
 B    or physical possession then it is possible, if the
      evidence produced by the prosecution is such as
      would sustain a finding, that he had constructive
      possession on September 17, 1966, when he
      handed it over to Miroo and Miroo handed it over to
c     Chhaganlal because if it was not seized from
      Chhaganlal, the appellant could have at any time
      got back the physical possession of the revolver
      through Miroo. The possession of a firearm under
      the Arms Act in our view must have, firstly the
 D
      element of consciousness or knowledge of that
      possession in the person charged with such
      offence and secondly where he has not the actual
      physical possession, he has nonetheless a power
 E    or control over that weapon so that his possession
      thereon continues despite physical possession
      being in someone else. If this were not so, then an
      owner of a house who leaves an unlicensed gun in
      that house but is not present when it was recovered
 F    by the police can plead that he was not in
      possession of it even though he had himself
      consciously kept it there when he went out.
      Similarly, if he goes out of the house during the day
      and in the meantime some one conceals a pistol in
 G     his house and during his absence, the police arrives
       and discovers the pistol, he cannot be charged with
       the offence unless it can be shown that he had
       knowledge of the weapon being placed in his
       house. And yet again if a gun or firearm is given to
 H     his servant in the house to clean it, though the
STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   627
   MARIYA ANTON VIJAY [ABHAY MANOHAR SAP.RE, J.]

physical possession is with him nonetheless                   A
possession of it will be that of the owner. The
concept of possession is not easy to comprehend
as writers of Jurisprudence have had occasions to
point out. In some cases under Section 19(1)(f) of
the Arms Act, 1878 it has been held that the word             B
"possession" means exclusive possession and the
word "control" means effective control but this
does not solve the problem. As we said earlier, the
first precondition for an offence under Section
25(1 )(a) is the element of intention, consciousness          c
or knowledge with which a person possessed the
firearm before it can be said to constitute an offence
and secondly that possession need not be physical
possession but can be constructive, having power
                                                              D
and control over the gun, while the person to whom
physical possession is given holds it subject to that
power and control. In any disputed question of
possession, specific facts admitted or proved will
alone establish the existence of the de facto relation        E
of control or the dominion of the person over it
necessary to determine whether that person was
or was not in possession of the thing in question.
In this view it is difficult at this stage to postulate as
to what the evidence will be and we do not therefore          F
venture to speculate thereon. In the view we have
                                               ..
taken, if the possession of the appellantincludes
the constructive possession of the firearm in
question then even though he had par~ed with
physical possession on the date when it was                   G
recovered, he will nonetheless be deemed to be in
possession of that firearm. If so, the charge that he
was in possession of the revolver on September
17, 1966, does not suffer from any defect particularly
when he is definitely informed in that charge that            H
628       SUPREME COURT REPORTS                 [2015] 7 S.C.R.

A     he had control over that revolver. It is also apparent
      that the words "on or before" were intended to bring
      home to the accused that he was not only in
      constrµctive possession of it on September 17,
      1966, but that he was in actual physical possession
B     of it prior to that date when he gave it to Miroo. It is
      submitted, however, that the word "on or before"
      might cause embarrassment and prejudice to the
      defence of the accused because he will not be in a
      position to know what the prosecution actually
c     intends to allege. From a reference of Form XX.VIII
      of Schedule 5 of the Code of Criminal Procedure,
      the mode of charging a person is that he "on or
      about" ..• did the act complained of. In view of the
      forms of the charge given in the Schedule to the
D
      Code, we think that it would be fair to the appellant
      if the charge is amended to read 'on or about'
      instead of 'on or before' which we accordingly
      order."
E        (115) In our considered opinion, therefore, this was a
  case where the High Court should have dismissed the revision
  filed by the accused under Section 397 and also the petition
  filed under Section 482 of the Code and remanded the case
F to the Trial Court to proceed in the case to enable the
  prosecution to adduce evidence on merits in support of the
  charge sheet after framing of the charges and also allow the
  defence to lead their evidence so as to bring the case to its
  logical conclusion in accordance with law. In other words, this
G was not a case falling in a category of rare case requiring
  interference of the High Court by invoking powers under
  Sections 397 or/and Section 482 of the Code as laid down in
  the case of Bhajan Lal (supra).

         (116) Learned counsel for the respondents-accused,
H
   STATE REP. BY INSP. OF POLICE, 'Q' BRANCH C.l.D., T. N. v.   629
      MARIYA ANTON VIJAY [ABHAY MANOHAR SAPRE, J.]

however, vehemently contended that this is not a fit case where A
an interference under Article 136 of the Constitution is called
for inasmuch as when the High Court has extensively dealt
with all the issues and given reasons. It was also w:ged that all
the accused (some Indian nationals and some foreign
nationals) are innocent having no connection with the alleged B
seizure of arms/ammunition from the vessel. We find no merit
in this submission at this stage.

      (117) It is a-settled principle of law that if a law laid down
by this Court was not applied properly by the High Court then C
such order has to be set aside. In this case, we find that the
law laid down by this Court in Bhajan Lal (supra) and S.B
Johari's case (supra) was not applied properly.

     (118) In the light of foregoing discussion, we cannot D
concur with the reasoning and the conclusion arrived at by the
High Court. As a result, the appeals succeed and are
accordingly allowed. Impugned order is set aside resulting in
dismissal of two cases filed by the respondents (accused)
before the High Court out of which these two appeals arise.    E

       (119) The Trial Court, which has seized of the case out
of which these matters arise, is directed to proceed with the
case and decide the same on merits in accordance with law.
Let the trial be completed by the Court concern~d within six F
months from the date of receipt of copy of this judgment. Copy
of this judgment be filed in the Trial Court within two weeks.
                                                  ~1 (

      (120) Before parting with the case, we consider it
appropriate to make it clear that we have not decided any issue G
arising in these appeals on its merits and nor has made any
observation on merits of controversy except to interpret Section
45 (a) of the Arms Act to enable the concerned competent
Trial Court to decide the rights of the parties accordingly in
accordance with law while deciding the case.                     H
630          SUPREME COURT REPORTS            [2015) 7 S.C.R.


A (121) The Trial Court (competent Court) would, therefore,
  decide the case strictly in accordance with law uninfluenced
  by any of our observations and of the High Court.

      Devika Gujral                             Appeals allowed.
 B