Andhra HC (Pre-Telangana)
P. Nedumaran vs Union Of India (Uoi) Rep. By The ... on 14 June, 1993
Equivalent citations: 1993(2)ALT291, 1993(2)ALT(CRI)188
JUDGMENT M.N. Rao, J.
1. These two Habeas Corpus applications are interconnected: facts alleged and questions of law arising for consideration also are common apart from the fact that the petitioner is the same and so, we are inclined to dispose of both the cases by this common judgment.
2. The petitioner - Sri. P. Nedumaran - swears that he is a former member of the Tamilnadu Legislative Assembly and a supporter of the cause of the Sri. Lankan Tamils. He claims that the mother of Captain V. Jayachandran, one of the detenus, instructed him to file. W.P.No. 3792 of 1993 and the other detenus also instructed him through his counsel, Sri. S. Dorai Swamy, who interviewed them on 5-3-1993 at Visakhapatnam, to file the writ petition.
3. W.P.No. 3792 of 1993 was filed for release of nine accused - (1) M/s. V. Jayachandran, (2). K. Satkunalingam, (3) V. Krishnamoorty, (4) K. Nayagan, (5) S. Sivarajan, (6) S. Indalingam, (7) A. Subhas Chandran, (8) S. Balakrishnan and (9) T. Mohan - against whom F.I.R was registered by the Harbour Police Station, Visakhapatnam in Crime No. 4 of 1993 under Section 25 of the Arms Act, 1959, Sections 3 and 5 of the Explosive Substances Act, 1908, Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short the TADA Act), Section 436 (437?) I.P.C. and Section 174 Cr.P.C. The F.I.R. is pending with the designated court (Sessions Judge) under the TADA Act and by virtue of the orders passed by the learned Judge, all of them are in judicial custody in the Central Jail, Visakhapatnam.
4. W.P.N.3793 of 1993 was filed for production of Sadasivam Pillay Krishna Kumar alias Kittu (hereinafter referred to as Kittu) before this court and to set him at liberty after declaring his arrest and detention as illegal and void.
5. Two interlocutory applications also were filed in the two writ petitions praying for the immediate release of the nine detenus as well as Kittu on bail.
6. Seeking identical reliefs, the petitioner has filed earlier two H.C.P.Nos. 132 of 1993 and 134 of 1993 in the Madras High Court. During the pendency of the above H.C.Ps. by an interlocutory order, the Madras High Court directed the Deputy Superintendent of Police, Central Bureau of Investigation., Visakhapatnam to permit the counsel for the petitioner to interview the detenus on5-3-1993 when they were in police custody in Visakhapatnam. Subsequently, the two H.C.Ps. were dismissed by a Division Bench of that court by a common order dated 10-3-1993 without going into the merits. H.C.P.No. 134 of 1993 was dismissed on grounds inter alia that the records are with the Sessions Court, Visakhapatnam and so it would be more appropriate for the court in Andhra Pradesh to consider the matter. H.C.P.No. 132 of 1993, which pertained to production of Kittu, was dismissed on the ground that records were common in both the cases and in the counter-affidavit, the stand taken by the respondents, was that at no point of time, Kittu was taken into custody.
7. In W.P.No. 3792 of 1993, the first respondent is the Union of India represented by the Secretary, Ministry of Defence., the second respondent is the Secretary, Ministry of Home Affairs and respondents 3 and 4 are the Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam and the Superintendent of Police, Central Prison, Visakhapatnam respectively. In W.P.No. 3793 of 1993, besides the Union of India represented by the Secretary, Ministry of Defence, the Secretary, Ministry of Home Affairs and the Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam. The Director-General of Police, Tamilnadu is shown as one of the respondents. The Superintendent of Police, Central Prison, Visakhapatnam is not a respondent, presumably since there is no allegation that Kittu was lodged in the Central Prison, Visakahapatnam.
8. In the two affidavits filed by the petitioner in both the writ petitions, it was alleged that the nine detenus are crew-men employed in the ship M.V. Yahata, which was registered at San Lorenzo in Honduras and one of the detenus -Y. Jayachandran - is their Captain since 8-9-1992. The vessel - M.V. Yahata - was engaged in transport of essential commodities like petrol, diesel and medicines to the northern part of Sri Lanka as there was no supply of medicines and petrol in that area by the Sri Lankan Government and the cost of petrol at Jaffna is Rs. 750/- per litre. The organisation "Liberation Tigers of Tamil Eelam" (for short L.T.T.E.) is the real ruler of the northern part of Sri Lanka and so it had to get petrol and medicines from foreign countries. The vessel was engaged in transporting diesel, petrol and medicines for over four months prior to 7-1-1993 without any interruption. On 7-1-1993 at Puberhala Island in the Malaca Straits, Kittu and nine other members of the L.T.T.E. boarded the vessel and at that time, there were no explosive substances in the ship ; it was only carrying large quantities of petrel, diesel and medicines. On 13-1-1993, M.V. Yahata was in the international waters at a latitude of 6° North and longitude of 8° East about 290 miles East of Hambanotota in South Sri Lanka and 440 miles South East of South India. The Ship was facing towards Trincomale. The Captain stopped the ship and allowed it to drift waiting for a signal that there was no interruption on the way since they wanted to reach Jaffna on 16-1-1993. The sign "not under control" signifying that the ship was adrift was put up by the Captain - V. Jayachandran - as was the usual practice. INS 38 - Viveka, without flying any flag, came closer to M.V. Yahata and contacted her Captain V. Jayachandran over the radio whether she (the ship) was bound for Trincomale and on receiving an affirmative reply, a further enquiry was made whether there was any passenger on board the ship. When Jayachandran gave a negative reply, the Captain of the Indian Ship (INS 38 - Viveka) asked over the radio whether they were all Sri Lankan Tamils for which an affirmative reply was given. Thereafter, the Captain of INS - Viveka wanted to board M.V. Yahata to find out whether there was any passenger. When Captain Jayachandran asked the Captain of the Indian vessel who he was, the latter replied that he belonged to the International Patrol and wanted to know why he (Captain Jayachandran) had put up the sign "not under command". Thereafter, Jayachandran disclosed to the captain of the Indian ship that he had 100 tons of explosive substances and threatened him not to approach his vessel. Until then, the Indian ship did not disclose her identity and so Jayachandran and his crew suspecting that the ship was of the Sri Lankan Navy, decided to attack it. When the Captain of the Indian ship disclosed her identity Kittu instructed Jayachandran "we should not attack an Indian ship or the Navy at any cost even if we lose bur lives". But for the directions of Kittu, the crew-men of M.V. Yahata would have struck at INS 38 - Viveka. After knowing the identity of the Indian ship, Kittu talked to her Captain without disclosing his identity. When the Captain of the Indian Ship enquired at to who he was, Kittu replied that he could be called as Marran and he would disclose his identity later on. So saying, he asked the Captain of the Indian ship why their ship was stopped. The Indian Captain replied that he did not know and asked the detenus to sail the ship to the Indian coast failing which, she would be attacked. The detenus agreed to that since the vessel was loaded with petrol and diesel and any attack by the Indian Navy would result in the ship going up in flames but the condition they insisted upon was that they would not enter the Indian territorial waters and would not come out of the ship. It was around mid-night when the ship M.V. Yahata sailed towards the Indian coast. Around 6.00 A.M. on the next day i.e., 14-1-1993, the detenus noticed another ship - INS Papa - 44 Kirubani - stationed at 390 nautical miles South East of Madras and even if they had escaped from INS 38- Viveka, they would have been surely captured by INS Papa - 44 Kirubani. The position of INS Papa indicated that the Union of the India had information that Kittu was traveling in the ship - M.V. Yahata - and in order to capture him and prevent him from proceeding to Jaffna, the Indian Naval ships were stationed at those points. Kittu disclosed over the radio his identity to the Captain of INS Papa and informed that he was on his way to meet Mr. Prabhakaran, their leader, carrying some peace messages to be sorted out by the leader. The Captain of INS Papa asked the detenus to sail to Madras and when Kittu enquired for the reason, the Captain replied that only on reaching Madras, he could tell the reason. On the Morning of 16-1-1993, the ship - M.V. Yahata - reached 16th mile east of Madras near Ennore and after anchoring the ship, the detenus refused to move into the Indian territorial waters.
9. In the meanwhile, another Indian ship - INS Savitri - also approached M.V. Yahata. The Captain of INS Papa asked Kittu and others to surrender but refusing to do so, Kittu informed the Indian Captain that they could bring I.B. officials and some other officials to Madras for talks. Rejecting this request, the Captain of the Indian ship informed Kittu that he would give time till 6.00 in the morning for surrender, failing which, their ship would be captured. Exactly at 6.00 A.M. on 16-1-1993, M.V. Yahata - the ship of the detenus - was circled by two helicopters and three Indian Air Force fighters. At that time, Kittu was on the roof deck and Captain V. Jayachandran at the fore-castle deck of M.V. Yahata. The Captain of the Indian ship directed the detenus to come near the bridge and stand for the surrender and from a distance of about 1,000 metres. INS Papa opened file on M.V. Yahata. Immediately, Kittu directed the L.T.T.E. members to keep cynaide capsules ready but asked the crew-men to jump into the sea and save their lives telling them that they should not sacrifice their lives since they were crew-men and engaged only to work in the ship. When the crew-men refused to jump, they were pushed by the L.T.T.E. members into the sea. Thereafter, the crew-members were rescued by the Indian Navy and were taken to another Indian ship - INS Savitri. Kittu was taken into custody by the respondents on 13-1-1993 and he was last seen alive in the custody of the respondents by the crew-mem of M.V. Yahata at 6.30 A.M. on 16-1-1993 and thereafter, their ship was on flames.
10. It was further alleged in the affidavits that because of the firing by INS Papa, the ship - M.V. Yahata - caught fire immediately. Two persons - Krishna Murthy and Shivalinga Keshavan - were injured because of the firing by INS Papa. Later on, the detenus were brought to Visakhapatnam and produced on 18-1-1993 before the designated court at Visakhapatnam and Crime No. 4 of 1993 was registered against them. It was also alleged that when Kittu boarded the ship on 7-1-1993, he was carrying luggage containing 1 1/2 million U.S. dollars, some packages of important documents intended to be handed over to Mr. Prabhakaran, the leader of L.T.T.E. and the visit of Kittu to Jaffna was only to convey a peace message to Prabhakaran, which was intended to solve the Sri Lankan Tamils' problems. The petitioner raised the pleas that as M.V. Yahata was flying the flag of Honduras, that country alone has jurisdiction to enquire into, if any offences were committed by the crew; the detenus are not amenable to the jurisdiction of the Indian courts as at the time of sinking of M.V. Yahata it was outside the territorial waters of India. The fight against the Sri Lankan Government by the Sri Lankan Tamils for securing their liberation cannot be an offence under any Indian law and the ban imposed on L.T.T.E. in India is not valid and even if the allegation that M.V. Yahata was carrying arms and ammunition is true, it would not be an offence against the Indian Government nor could it be construed as an unlawful activity.
11. The true state of facts are in dispute. Most of the facts alleged by the petitioner in his two affidavits are controverted by the respondents in their counter affidavits. A threshold objection was taken by respondents 1 and 2 that the petitioner has no locus standi to file the writ petitions ; he is not a duly constituted attorney nor a relation of the detenus.
12. In the counter-affidavif filed in W.P.Nq.3793 of 1993 on behalf of respondents 1 and 2, it was specifically averred that Kittu is not in the custody of the respondents and no one bearing the name Sadasivam Pillay Krishna Kumar alias Kittu was captured from the vessel - M.V. Yahata - before it was sunk nor was any such person rescued from the sea by the Indian Navy. None of the dead bodies recovered from the ship or the sea has been identified to be that of Kittu. One of the dead bodies recovered as unidentifiable as it had been completely charred after the vessel was set ablaze by some of the persons on board the vessel before they jumped into the sea. The alleged packages containing peace messages and 1 1/2 million U.S. currency were neither discovered nor recovered throughout the operations. The counter-affidavit also - for want of knowledge denied the alleged mission undertaken by Kittu. In the two counter-affidavits filed on behalf of respondents 1 and 2 in W.P.Nos. 3792 and 3793 of 1993, it was averred that the vessel - M.V. Yahata - when she displayed the sign "not under command" was acting in an unusual and suspicious manner; she was carrying arms and ammunitions illegally and when sighted she was found moving towards India. Captain V. Jayachandran, when questioned over the radio - telephone, gave the name of the vessel as "M.V. Ahat" a false name. M .V. Yahata was not flying any flag and the name displayed was "M.V. Ahat". She was sailing under false navigational signals without any nationality. The allegation that the Indian Naval ship - INS Viveka - was not flying any flag at the time when it sighted the detenus ship was specifically denied. The Indian Naval ships and the Coast-Guard vessels are "Public Armed Vessels" under International Law and, therefore, had a right to visit any ship on high seas, if the circumstances warranted. Under the provisions of international law, the public armed vessels of the Indian Navy had a right of visit when they noticed M.V. Yahata sailing without any flag under a false name and without navigational lights. But as the said vessel did not recognise the right of visit of the Indian ships, the vessel was asked to sail to the Indian territorial waters, which had been done by the Captain. She was actually escorted to the Indian territorial waters on 16-1-1993 and thereafter - in accordance with national and international law - was asked to submit for search but the vessel refused to do so. The L.T.T.E. cadre themselves set vessel on fire in order to conceal the illegal and unlawful cargo she was carrying and to prevent its discovery by the ships of the Indian Navy. It was admitted in the counter-affidavits that the nine persons who were picked up from the sea by the Indian Navy were taken to Visakhapatnam and handed over to the Station House Officer, Harbour Police Station on 17-1 -1993; they were arrested and a case was registered against them in Crime No. 4 of 1993 of Harbour Police Station, Visakhapatnam. When produced before the designated court, they were remanded to custody and now they are lodged in the Central Prison, Visakhapatnam. As the detenus are in judicial remand pursuant to the orders of the designated court, the said orders cannot be challenged.
13. Denying various legal pleas raised in the affidavits filed by the petitioner, it was averred by respondents 1 and 2 in their counter-affidavits that with an ulterior motive for gaining political mileage, the petitioner had filed the writ petitions without any bona fides. The petitioner is a meddlesome interloper trying to whip up passions in the society by giving undue leverage and providing undue anti-national propaganda in favour of the banned organisation - L.T.T.E.
14. On behalf of the fourth respondent - Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam - a counter - affidavit was filed in W.P.No. 3793 of 1993 averring - inter alia - that the Naval authorities recovered three dead bodies and none could be identified as that of Kittu and that the investigations did not disclose that Kittu was taken into custody.
15. The Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam - the third respondent in W.P.No. 3792 of 993 - filed an elaborate counter- affidavit averring that this court has no power to quash the orders passed by a designated court in a TADA case. He alleged that all the nine detenus are L.T.T.E. men; Keshavan alias Nayagan (A-6) belongs to the C- Tiger unit of L.T.T.E. and the rest are L.T.T.E. men working as crew. The ship -M.V. Yahata - was registered at the embassy of Honduras in Singapore with the port of registry shown as San Lorenzo and the name of the ship was deliberately altered as M.V. Ahat under the orders of the Master of the ship. The Master (Captain) of the ship when contacted by Indian Naval vessel admitted that the ship was drifting on high seas with false navigational lights with no flag and with a false name - 'M.V. Ahat'. Since it was admitted by the petitioner in paragraph 9 of his affidavit filed in WP.No. 3792 of 1993 that the ship had on board 10 L.T.T.E. members, it is obvious that as they were not crew - men, the ship had passengers besides the crew and this fact was falsely denied by the Captain of M.V. Yahata when the Indian Naval Ship first established contact with her. The Indian Navy had seized two 'A.K 47' rifles and one hand-grenade from 'M.V. Yahata' and the accused have confessed that the ship was carrying arms, ammunition and explosives. Captain Jayachandran brought the vessel -M.V. Yahata - into the Indian territorial waters and the offences alleged against the detenus were committed by them within the Indian territorial waters and, therefore, they are answerable to the Indian courts. The L.T.T.E. is a banned organisation in India and the ban was upheld by Mr. Justice Nag Tribunal constituted under the Unlawful Activities (Prevention) Act, 1967.
16. Shri K. G. Kannabhiran, learned counsel for the petitioner, has contended that the ship - M.V.Yahata - not being a vessel registered in India, it could not be subjected to the jurisdiction or control of the Indian Navy. At the time when it was sighted by the 'Public Armed Vessel' of the Indian Navy, it was actually on the high seas and, therefore, under international law, as the vessel enjoyed uninterrupted navigation on the high seas, compelling her to sail towards the Indian territorial waters was clearly in breach of international law. There were no specific allegations of any crimes against M.V. Yahata except that it was in the service of the L.T.T.E. and even though it is a banned organisation in India, the crew members of M.V. Yahata, being foreigners, could not be subjected to the jurisdiction of the Indian courts and the Indian Penal Law. The public ammed vessels of India had no power to bring the nine crew members either to the Indian coast or to detain them under the provisions of any Indian Law. The learned counsel also has submitted that even assuming that the detenus could be subjected to the Indian Penal Laws, still the F.I.R. registered against the nine detenus does not render them liable for conviction for any of the offences alleged against them; the allegations in the F.I.R. even if accepted in their entirety, do not constitute any offence against them.
17. Supplementing the arguments advanced by Shri Kannabhiran, Sri Doraiswamy, learned cousel, has argued that as Kittu was last seen alive when M.V. Yahata was about to sink, a presumption would arise that Kittu was in the custody of the Indian authorities and so, the respondents are bound to produce him before this court.
18. In opposition to this, Shri Tulsi, learned Additional Solicitor-General of India, has argued that both the writ petitions are not maintainable; under the provisions of the TADA Act, an appeal is allowed only to the Supreme Court against the orders of the designated court. Shri Nedumaran, who swore to the affidavits, has no authority to file the writ petitions on behalf of the detenus. None of the detenus had expressed any inclination to question the legality of the F.I.R., now pending with the designated court. Apart from the fact that no public interest would be served by these two writ petitions., they are bereft of bona fides; the only objective the petitioner is seeking to achieve is to utilise the forum of this court for propaganda purposes in International forums to denigrate the fair name of this country. In as much as the jurisdiction of the High Court is ousted under the TADA Act, it is not open to the petitioner to indirectly invoke the jurisdiction of this court by filing Habeas Corpus writ petitions under Article 226 of the Constitution. What is forbidden directly cannot be permitted to be achieved by indirect methods. Even on merits, both the writ petitions deserve to be thrown-out. All the nine detenus - by virtue of the lawful orders passed by the designated court under the TADA Act - have been committed to judicial custody and, therefore, the remedy by way of Habeas Corpus is unavailable. Under international law, there is no unrestricted freedom of navigation on high seas ; every ship must fly the flag of the country of her registration and the flag must, at all times, be exhibited. This mandatory injunction of international law, when flouted, would give rise to a right of visit by the public armed vessels of any nation and in accordance with this well known principle of international law, the vessels of Indian Navy intercepted M.V. Yahata. Even according to the averments in the affidavits filed by the petitioner, the said vessel was carrying a huge cargo of explosive - about 100 tons - and the members of the L.T.T.E. on board the ship, before committing suicide, set the vessel a flame after pushing the nine detenus into the sea within the territorial waters of India. The ammunition was intended to be diverted to the South Indian coast for subversive activities by the members of L.T.T.E - a banned organisation. The investigation now points to this and in course of further investigation, many new facts may emerge giving rise to commission of fresh offences by the detenus. The present stage of investigation indicates that Kittu is dead ; the torso recovered could be his but a final conclusion in this regard is yet to be arrived. The F.I.R. clearly alleges commission of cognisable offences by the nine detenus and, therefore, it is not open to this court to scrutinise the allegations for the purpose of recording a finding whether or not the allegations are true ; such an inquiry is clearly barred in habeas corpus proceedings. The F.I.R is not a final report and investigation is still in its preliminary stage. The allegations in the F.I.R must be taken at their face value it this stage and if so clone, both the writ petitions must fail.
19. On the contentions urged, the points that arise for consideration are :
(1) Whether the writ petitions are maintainable?
(2) Whether the action of the Public Armed Vessesl of the Indian Navy in directing M.V. Yahata from the high seas to sail into the Indian territorial waters was in breach of any principle of International Law?
(3) Whether the detenus, being foreigners, are liable to be tried under the Penal Law of India?
(4) Whether the F.I.R in Crime No. 4 of 1993 against the nine detenus is liable to be quashed?
and (5) Whether Sadasivam Pillay Krishna Kumar alias Kittu is in wrongful custody of the Indian authorities?
Re. (1):
20. The first aspect to be considered is whether the petitioner has locus standi to file the writ petitions ? It was the submission of the learned Additional Solicitor - General that the petitioner has absolutely no locus standi; none of the detenus had authorised him to move this court. The motive of the petitioner was only to use the forum of this court for publicity in India and abroad. Relying upon the rulings of the Supreme Court in Janata Dal v. H.S. Chowdhary, 1992 (4) SCC 307, Krishna Swami v. Union of India, and Simranjit Singh Mann v. Union of India, he strongly contended that both the writ petitions should be thrown out on the question of maintainability without going into merits.
21. We are not inclined to agree with the plea that the writ petitions should be summarily thrown out on the ground of locus standi. It is true that the petitioner is in no way related to any of the detenus. But the mother of Captain V. Jayachandran, one of the detenus, by a letter dated 29-1-1993 has authorised Sri D. Veerasekaran and S. Doraiswamy "to appear on her behalf and take up necessary legal actions as they deem suitable to secure the release of her son". The fact was adverted to by the Division Bench of the Madras High Court in its judgment in H.C.P.Nos. 132 of 1993 and 134 of 1993. Sri Doraiswamy has filed vakalat for She petitioner in these two writ petitions.
22. Sri Nedumaran, the petitioner, is a former member of the Legislative Assembly of Tamilnadu and a supporter of the cause of the Sri Lankan Tamils. He claimed to have received instructions to file the writ petition through the mother of Captain V. Jayachandran and also from the other detenus through his counsel Sri. Doraiswamy, who interviewed them on 5-3-1993 at Visakhapatnam pursuant to the directions issued by the Madras High Court. The petitioner asserted that he has been in public life for the last four decades and we do not see any reason to doubt either the petitioner's claim about his being in public life or his interest in the Sri Lankan Tamils. The detenus, being foreigners - Tamils of Sri Lanka - the espousal of their cause by Sri Nedumaran, the petitioner, cannot be equated with that of an interloper o intermeddler. It is a well established fact that in Habeas Corpus applications, normally, it is not possible for the affected person - by reason of his detention - to swear to an affidavit setting out all the necessary facts and also the legal issues that may arise there from. That is why, courts have always permitted a relation or friend or anyone interested in the detenu to challenge the legality of the detention by way of a Habeas Corpus application. Rule 5 (f) of the Writ Proceedings Rules, 1977 made by this court under Article 225 of the Constitution allows a person other than the detenu to swear to the affidavit, provided he is acquainted with the facts. As the nine detenus are in judicial remand, they are obviously disabled from filing affidavits in support of the pleas raised on their behalf in W.P.No. 3792 of 1993.
23. The general principle is that one person cannot seek to enforce the rights of another except in cases where the law specifically allows him to do so. Writ of Habeas Corpus is a well known exception to this general rule. Adverting to this, Mukherjea, J. said in Charanjit Lal v. Union of India, .
"Not only the man who is imprisoned or detained in confinement by any person, provided he is not an absolute stranger, can institute proceedings to obtain a writ of habeas corpus for the purpose of liberating another from an illegal imprisonment."
Reiterating the principle that existence of a claimed right is the foundation for the exercise of jurisdiction under Article 226 of the Constitution, the Supreme Court in Cal. Gas Co. Ltd v. State of W.B., following the view earlier expressed in Charanjit Lal's case, stated the legal position :
"The right that can be enforced under Article 226 also shall ordinarily be the personal or individual right of the petitioner himself, though in the case of some of the writs like habeas corpus or quo warranto this rule may have to be relaxed or modified."
24. The principles governing locus standi in entertaining applications concerning public interest litigation do not apply to writs of habeas corpus and this was recognised by the Supreme Court even in the rulings cited by the learned Additional Solicitor-General. In Janata Dal's case (1 supra), recognising the rule that a writ of habeas corpus is an exception to the strict rule of standing, Pandian, J., observed:
"... any other person other than the person under detention may file an application for issue of a writ of habeas corpus challenging the legality of the detention of the detenu."
In Simranjit Singh Mann's case (3 supra), reiterating the principle, it was held by the Supreme Court:
"Cases which have ended in conviction by the apex court after a full gamut of litigation are not comparable with preventive detention cases where a friend or next of kin is permitted to seek a writ of habeas corpus."
Krishna Swami's case ( 2 supra) falls within the ambit of the general rule as to standing for maintaining an action in order to enforce the rights of others. In that case, an advocate filed a writ petition in the Supreme Court by way of public interest litigation seeking reconsideration of an earlier decision of the Constitution Bench of the Supreme Court. By a majority of 4 against 1, the Supreme Court ruled that the petitioner therein did not allege any special injury and, therefore, "the right he claims is no better than that available to every other advocate in the country".
25. In M.A. Dharman v. State of A.P. , a Division Bench of this court negatived the plea as to non-maintainability of the writ petition in which the legality of the detention of nine foreigners was challenged by an Indian citizen observing:
"the rights under Articles 14, 20, 21 and 22 are available to both citizens and non-citizens."
26. An inter-related contention urged by the learned Additional Solicitor-General was that since the jurisdiction of the High Court to entertain any appeal or application under the provisions of the TADA Act was excluded, the petitioner is not entitled to seek indirectly what he could not seek directly. It is undisputable that the jurisdiction of the High Court is excluded under the provisions of the TADA Act. The petitioner could not have approached this court by way of an application under Section 482 Cr.P.C to quash the F.I.R and seek the release of the detenus. But that position would not deprive him of his right to seek constitutional remedy under Article 226 of the Constitution. The availability of such a remedy was never in dispute. In Usmanbhai v. State of Gujarat, after referring to the legal position as to the exclusion of jurisdiction of the High Court under the provisions of the TADA Act, the Supreme Court observed:
"At the very outset, Shri Poti, learned counsel appearing for the State Government with his usual fairness, unequivocally accepted that the provisions of the Act do not take away the constitutional remedies available to a citizen to approach the High Court under Article 226 or Article 227 or move this Court by a petition under Article 32 for the grant of an appropriate writ, direction or order. It must necessarily follow that a citizen can always move the High Court under Article 226 or Article 227 or this Court under Article 32 challenging the constitutional validity of the Act or its provisions on the ground that they offend against Articles 14, 21 and 22 or on the ground that a notification issued by the Central Government or the State Government under Section 9 (1) of the Act constituting a Designated Court for any area or areas or for such case or class or group of cases as specified in the notification was a fraud on powers and thus constitutionally invalid."
27. The grounds of challenge, mentioned above- it is clear - are only illustrative and not exhaustive. When a foreigner, detained under the TADA Act, files a habeas corpus writ petition contending that the Indian Penal Law would not apply to him, it is not open to this court to dismiss the case in limine on the ground of want of jurisdiction. The contentions urged must be examined on merits and the result should be based upon the conclusion arrived.
28. The point is accordingly answered in favour of the petitioner and against the respondents.
Re. (2):
29. International Law recognises that the sovereignty of a State extends to a belt adjacent to its coast and the extent of this sea-belt is commonly called the 'territorial waters' of the State. Prior to 1947, the territorial waters claimed by India were limited to 3 nautical miles from the coast line. By a proclamation dated 22nd March, 1956, the President of India declared the extent of territorial waters to a distance of 6 nautical miles measured from the appropriate baseline. That limit was extended to 12 nautical miles by a later proclamation issued by the President of India on 30 the September, 1967. The position continues to be the same even now, the virtue of Section 3 (2) of Act 80 of 1976. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act.
30. In customary international law, open sea is not the territory of any State and the term 'freedom of the open sea' indicates the rule of international law :
"The open sea is not and never can be under the sovereignty of any State whatever.... Freedom of the open sea involves perfect freedom of navigation for vessels of all Nations, whether men-of-war, other public vessels or merchantmen.", See International Law by L. Oppenheim -Vol. 15th Edn. pp.468 and 470.
It is a mandatory principle of international law:
"In the interest of order on the open sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the open sea is freedom for such vessels only as sail under the flag of a State.", L. Oppenheim Op. Cit., p.474.
A further binding rule of customary international law, as stated by L. Oppenheim, is:
"Every State must register the names of all private vessels sailing under its flag and it must make them bear their names visibly, so that every vessel may be identified from a distance. No vessel may be allowed to change her name without permission and fresh registration.", L. Oppenheim Op. Cit., p.476 Customary International Law also lays down:
"Every State is under a duty to fix the conditions for the grant of nationality of its ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly, and each State has an obligation to issue to ships to which it has granted the right to fly its flag documents to that effect", See Principles of Public International Law by Ian Brownlie-4th Edn., 237. "Ships flying no flag and refusing to show a flag when called upon to do so in a proper manner, may be boarded by the ships of any State.", Ian Brownlie, Op. Cit., 248.
It is the universally recognised customary rule of international law:
"War- ships of all nations, for the purpose of maintaining the safety of the open sea against piracy, have the power to require suspicious private vessels on the open sea to show their flags; but the vessels must be suspicious.", L. Oppenheim, Op. Cit.,481 "The right to enjoy the protection of the law balances the responsibility of the flag State for the behaviour of its ships and a ship without nationality loses the protection of the law with respect to boarding and seizure on the high seas", See lan Brownlie, Op. Cit, 238.
In order to make success of the system and for maintaining order on the high seas, international law recognises the right of war-ships to approach any vessel in order to verify her identity and nationality. Such a right of approach exists in all circumstances. The right of men-of-war - also commonly called 'Public Armed Vessels' - to verify the flags of suspect merchant ships and to arrest foreign ships or ships under the flags of more man one State is an exception to the rule of the exclusive jurisdiction of the flag State in respect of the ships flying their flags on the high seas. See International Law as applied by International Courts and Tribunals - Vol.I -by Georg Schwarzenberger -3rd Edn, 341. Also see Introduction to International Law by J.G. Starke -10th Edn. P. 244.
31. In this context, it is appropriate to notice judicial interpretation of the rules of international law concerning freedom of the open sea.
32. In the case of the I'M Alone, a British ship of Canadian registry, which was owned and controlled by the United States citizens - while engaged in rum-running - was pursued by a U.S. Coast Guard vessel when the ship was within an hour's sailing distance from the shore. When the ship -I' M Alone - ignored the warning from another Coast Guard vessel that has joined in the chase at a point more than 200 miles off the coast of the United States, the suspected vessel was sunk. Both the countries referred the matter to the joint consideration of two Commissioners - one from the United States and another from Canada -whose report the parties agreed to accept. The Commissioners, inter alia, stated the rule:
"If sinking should occur incidentally, as a result of the exercise of necessary and reasonable force for such purpose, the pursuing vessel might be entirely blameless"
But on a consideration of the facts, they held that the sinking of the ship was not justified., See Georg Schwarzenberger, Op. Cit., 344-345
33. The principles of customary international law governing the freedom of the open sea, adverted to supra, have been incorporated to a very large extent in two important Conventions - the Convention of the High Seas of 1958 and the Law of the Sea Convention of 1982. It is not in dispute that India has ratified both the Conventions. Article 3 of the 1982 Convention recognises that every State has the right to establish the breadth of its territorial sea upto a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with the Convention. Part VII deals with 'High Seas'. Article 87 lays down "freedom of the high seas is exercised under the conditions laid down by mis Convention and by other rules of international law", thereby clearly indicating mat in matters not covered by the Convention, the rules of customary international law still govern the field. Article 88 enjoins that the high seas shall be reserved for peaceful purposes. Every State is empowered by Article 90 to sail ships flying its flag on the high seas. The principle that ships have the nationality of the States whose flags they are entitled to fly is recognised by Article 91, which also lays down that there must exist a genuine link between the State and the ship. Article 92 forbids a ship from changing her flag during the voyage or while in a port of call except in case of real transfer of ownership or change of registry. What are the duties of a flag State are found incorporated in Article 94. Article 101 defines 'piracy' and Article 105 confers power on a flag State to seize a pirate ship and the courts of the State which carried out the seizure may decide upon the penalties to be imposed and may also determine the action to be taken. Only war-ships or military aircraft may effect seizure on account of piracy. Article 110 recognises the right of visit of a war-ship encountering a foreign ship on the high seas if:
(a) the ship is engaged in piracy;
(b) the ship is engaged in the slave trade;
(c) the ship is engaged in unauthorized broadcasting and the flag State of the war-ship has jurisdiction under Article 109;
(d) the ship is without nationality; or
(e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship.
In the aforesaid five cases, for the purpose of carrying out verification, the warship may send a boat under the command of an Officer to the suspected ship and if suspicion remains after the documents have been checked, a further examination of the ship may also be carried out.
34. What are the rights and duties of public armed vessels navigating on high seas in time of peace came up for consideration before the United States Supreme Court in "The Marianna Flora", See Cases on International Law - Vol.1 - by Pitt Cobbett and W.L. Walker - 1947 Edn., pp.294-297. Story, J., expounding the legal position in customary international law, held :
"It is the duty of public armed vessels to keep the police of the seas and to put down pirates and for this purpose, every such vessel has a right of approach and in a cases of suspicion, a right to compel the suspected vessel to show her flag, together with a right of further investigation... Even in time of peace, the public armed vessels of one State have a right to detain or arrest vessels belonging to other States: (1) in cases of suspected piracy and (2) in cases where there is reasonable ground for believing that the vessel is engaged in some enterprise against the sovereignty or safety of the State to which the Public vessel belongs .."
35. The doctrine of 'freedom of the open sea' came up for consideration before the Privy Council in Naim Molvan, Owner of Motor Vessel "Asya" v. Attorney-General for Palestine, 1948 Appeal Cases p.351. The Immigration Ordinance, 1941 of Palestine provided for exclusion of certain categories of persons from Palestine for the inspection, detention and removal of intending immigrants. It also further provided that the owner of a vessel is deemed to have abetted the unlawful immigration of any person who is proved to have been on board the vessel in the territorial waters of Palestine, whether that person or vessel came there voluntarily or not. Motor Vessel Asya when first sighted by a British destroyer was on the high seas - some 100 miles South-West of Jaffa. She was filing no flag but later hoisted a Turkish flag and when the boarding party arrived on the ship, the Turkish flag was hauled down and the Zionist flag hoisted. As it did not reply to the signals sent by the British warship, a boarding party was sent and the vessel was escorted to the outer harbour of Haifa, where the police and immigration authorities boarded her. There were 733 passengers on board and non of them had any passport or travel document to enter Palestine. There was no passenger list nor any usual ship's papers. The Supreme Court of Palestine affirmed the order of the District Court for forfeiture of the ship to the Government of Palestine on the ground that she was within the territorial waters of Palestine in circumstances in which the owner of the vessel was deemed to have abetted the unlawful immigration of passengers.
36. Lord Simonds, speaking for the Judicial Committee of the Privy Council, expressed the view that international law does not recognise unqualified freedom of the open sea. He further observed :
"For the freedom of the open sea, whatever those words may connote, is a freedom of ships which fly, and are entitled to fly, the flag of a State which is within the comity of nations. The 'Asya' did not satisfy these elementary conditions. No question of comity nor of any breach of international law can arise if there is no State under whose flag the vessel sails. Their Lordships would accept as a valid statement of the law the following passage from Oppenheim's International Law (6th Edn.) Vol.1 p.546. 'In the interest of order on the open sea, a vessel not sailing under the maritime flag of a State enjoys no protection whatever, for the freedom of navigation on the open sea is freedom for such vessels only as sail under the flag of a State.' Applying that principle, the learned Law Lord ruled that as 'M.V. Asya' had no ship's papers to identify her and as there was no evidence that she had a right to fly the Turkish flag and the flag hoisted later - Zionist flag - was not the flag of any existing State, she could not claim the protection of any State and, therefore, no principle of international law was breached by her seizure.
37. In the light of these legal principles, the question has to be decided whether under international law, the Indian public armed vessels had any right to direct 'M.V. Yahata' to sail into the Indian territorial waters when they sighted the vessel on the high seas on 13-1-1993.
38. Even according to the specific averment in the affidavits filed by the petitioner, Kittu and nine other members of the L.T.T.E. boarded 'M.V. Yahata' on 7-1-1993 at the port of Puberhala Island in the straits of Malaca. The vessel was registered - according to the petitioner - at San Lorenzo in Honduras. But according to the counter - affidavit filed by the Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam - the third respondent in W.P.No. 3792 of 1993 - the vessel was registered at the embassy of Honduras in Singapore showing its port of registry as San Lorenzo in Honduras. No further details in this regard are forthcoming.
39. What appears to be fairly clear is that the country of the ship's registration is Honduras. At the time when she was sighted by the Indian Public Armed Vessel on 13-1-1993, the vessel was on the high seas. Admittedly, she was drifting exhibiting the sign "not under control" and she was not flying any flag. The allegation of the petitioner that when INS 38 Viveka sailed closer to M.V. Yahata, the Indian ship was not flying any flag was specifically denied in the counter and no rejoinder was filed by the petitioner traversing the same. It is hard to believe that the Indian Naval ship - INS 38 Viveka - was sailing on the high seas without flying her flag. We are inclined to believe the assertion in the counter-affidavits that M.V. Yahata was displaying a false name- M.V. Ahat -when it was sighted by the Indian Naval ship; had it been otherwise, a rejoinder would have been definitely filed by the petitioner denying the aforesaid assertion in the counter - affidavits. INS Viveka - very justifiably - made an enquiry on radio as to whether there were any passengers on board the ship -M.V. Yahata. Despite the fact that admittedly there were ten persons other than the crew on board the ship - Kittu and nine others - V. Jayachandran, the Captain of M.V. Yahata chose to send a negative reply. In that fact situation, INS Viveka was entitled - under the rules of international law - to claim a right of visit. By not flying her flag and not displaying her correct name and also by giving an incorrect reply as to the presence of passengers on board the ship, M.V. Yahata had lost her right to claim uninterrupted navigation on the high seas M.V. Yahata could not be considered to be a vessel subject to the jurisdiction of the laws of the State of Honduras - she has lost the right to claim the nationality of Honduras. Further, prima facie, there appears to be no genuine link between the State of Honduras and M.V. Yahata barring the purported tenuous link of registration, as is evident from the absence of any protest from that State (Honduras) when the vessel was sunk.
40. When a ship sails without a flag, the public armed vessels of any State have a right to arrest such a ship and this right is a recognised exception to the general principle of the freedom of the open sea. This right is the corollary of the duty imposed by international law on public armed vessels to police the seas and to put down pirates. The fact situation clearly justifies the action of INS 38 Viveka in asking M.V. Yahata to sail to the Indian coast and the other two Indian men-of-war - INS Papa and INS Savitri - in escorting M.V. Yahata to the Indian territorials waters ; the action perfectly accords with State practice, judicial interpretation and the governing of principles of international law. We accordingly answer point No. 2 against the petitioner.
Re. (3):
41 The arguments advanced by Shri Kannabhiran on the question as the non-application of the Indian Penal Law to the nine detenus ran along the following lines:
42. The detenus admittedly being foreigners, could not be tried for any of the offences mentioned in the F.I.R. The accusations against the nine detenus are under the provisions of the TADA Act, the Indian Penal Code, the Code of Criminal Procedure, the Explosive Substances Act and the Arms Act. Section 1 (2) of the TADA Act excludes the application of the Act to the detenus since they do not fall under any of the three categories specified therein. By Section 2 of the Indian Penal Code, every person is liable to punishment, provided the offence with which he is charged has been committed within India and the offence alleged under the Indian Penal Code was not committed within the territory of India by the detenus. The Arms Act has no extra-territorial application and this is made clear by Section 1 (2) and the same is the case with regard to the Explosive Substances Act, 1908 as is evident from Section 1 (2) thereof. Section 188 of the Code of Criminal Procedure confines the extra-territoriality only to citizens of India whether on the high seas or elsewhere and to non-citizens in respect of offences committed on any ship or aircraft registered in India. The offences alleged against the detenus not having been committed within India or on any ship or aircraft registered in India, they are not liable to be tried under any of the provisions of the penal laws of India.
43. In the First Information Report registered with the Harbour Police Station (L.A.O.) Visakhapatnam, the offence alleged against the nine detenus are under Section 25 of the Indian Arms Act, Sections 3 and 5 of the Indian Explosive Substances Act, Sections 3 and 4 of the TADA Act, Section 436 I.P.C. (Section 437 ?) and Section 174 Cr.P.C The material portion of the F.I.R. reads:
"It is intimated that on 14th January, 1993 movement of a merchant vessel M.V. Ahat belonging to L.T.T.E. carrying sophisticated arms, ammunitions, explosives and some L.T.T.E. cadre on board was monitored to be moving towards the Indian Coast The vessel was directed to shape course towards Madras escorted by Navy and Coast Guard Ships. On the morning of I6th the vessel was stopped off Madras in Indian territorial waters. The crew and L.T.T.E. cadre were given every opportunity to surrender. Some personnel were seen throwing the arms, ammunitions and explosives over board before setting the ship on fire, Nine survivors and one dead body were recovered and carried on board this ship to Visakhapatnam for further disposal".
44. Although the detenus are foreigners, from the nature of the allegations in the F.I.R., it is not possible to hold that the Indian Penal Law has no application to them. As already noticed, under international law, the sovereignty of a State extends to waters adjacent to its coast and the extent of this sea-belt is commonly called 'the territorial waters of the State'. Act 80 of 1976 (the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976) was enacted by the Union Parliament to provide, inter alia, for matters relating to the territorial waters. Section 3 reiterates the admitted position under international law the sovereignty of India extends and as always extended to the territorial waters of India. Sub-section (2) declares that the limit of the Indian territorial waters is 12 nautical miles from the nearest point of the appropriate base line. Sub-section (1) of Section 4, subject to the provisions of any other law for the time being in force, guarantees innocent passage through the territorial waters to all foreign ships including submarines and other under-water vehicles. By virtue of Section 3, the territorial waters of India shall be treated as Indian territory; with the consequence, inter alia any offence committed within the territorial waters of India shall be subject to the jurisdiction of the Indian courts and the Indian laws. The specific allegation in the F.I.R. is mat the incidents alleged happened in the Indian territorial waters and in the counter-affidavits, the same was averred but no rejoinder was filed denying the same. Even if the petitioner had filed a rejoinder denying the allegation that the offences alleged were committed in the Indian territorial waters, it would not have been possible for this court to adjudicate upon that disputed question. The allegations in the F.I.R. must be taken at their face value and in their entirety while deciding questions relating to jurisdiction.
45. The TADA Act applies to the whole of India by Sub-section (2) of Section 1 and it also applies to three categories specified therein viz;
(a) to citizens of India outside India,
(b) to persons in the service of the Government,. wherever they may be; and
(c) to persons on ships and aircraft registered in India, wherever they may be.
Even if an accused falls outside the ambit of the three specified categories, still, if the offence or offences alleged were committed within India, including the territorial waters, the TADA Act would apply to him. Section 2 of the Indian Penal Code makes it clear that for any of the offences committed within India, every person is liable to punishment under the Code. Same is the resultant position with regard to offences alleged under the Arms Act and the Explosive Substances Act by virtue of Section 1 (2) in the two Acts. Section 174 Cr.P.C. deals with procedural aspects - to cases in which an inquest is necessary. Section 188 speaks of liability of Indian citizens for offences committed outside India and offences committed by non-citizens on any ship or aircraft registered in India. In respect of both the categories of persons, the section lays down that they may be tried for such offence as if it had been committed at anyplace within India at which they will be found. It is, therefore, not possible to accept the plea that the nine detenus, although foreigners, could not be tried in India for the offences alleged against them.
46. The point is accordingly answered against the petitioner.
Re. (4):
47. Shri Kannabhiran, learned counsel for the petitioner, has argued that even if the allegations in the F.I.R. registered against the nine detenus are taken at their face value and accepted in their entirety, do not constitute the offences alleged and, therefore, the F.I.R must be quashed. As a principle of law, we must say, the proposition is unexceptionable; a catena of case law establishes this.
48. In Emperor v. Nazir Ahmad, AIR 1945 P.C. 18 while cautioning that the court should not interfere - by exercising its inherent jurisdiction under Section 561-A of the old Criminal Procedure Code corresponding to Section 482 of the new Code - with the police in " matters which are within their province and into which the law imposes upon them the duty of enquiry", the Privy Council, in unmistakable terms, laid down the rule :
"No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation..."
Stating that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the inherent jurisdiction under Section 561-A of the old Criminal Procedure Code, Gajendragadkar, J said in R.P. Kapur v. State of Punjab, .
"It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage."
One category of cases in which the inherent power should legitimately be exercised by the High Court is:
".....where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not."
In State of W.B. v. Swapan Kumar, AIR 1982 SC 948 it was held by A.N. Sen, J, after reviewing the entire case law:
"Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy fornothing"...In considering whether an offence in to which an investigation is made or to be made, is disclosed or not, the court has mainly to take into consideration the complaint or the F.I.R. and the court may in appropriate cases take into consideration the relevant facts and circumstances of the case."
This principle was reiterated in State of U.P. v. R.K. Srivastava, .
"It is now a well settled principle of law that if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such F.I.R should be quashed."
In Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre, the test for quashing criminal prosecution at the initial stage was reiterated - "whether the uncontroverted allegations as made, prim facie, establish the offence." Very recently, the Supreme Court - in a path - breaking ruling - in State of Haryana v. Bhajan Lal, after exhaustively reviewing the entire case law, illustratively enumerated seven categories of cases in which the High Court, in exercise of its powers under Article 226 of the Constitution or under Section 482 Cr.P.C., could quash criminal proceedings. Category -I relates to cases where the allegations in the F.I.R. even if taken at their face value and accepted in their entirety, do not, prima facie, constitute any offence or make out a case against the accused.
49. Applying the above legal principle with reference to the contents in the F.I.R, it is not possible to hold that this is a fit case for quashing the F.I.R.
50. The L.T.T.E is an organisation based in Sri Lanka and one of its professed objectives is to fight for a separate homeland for the Tamils of Sri Lanka. The Government of India, in exercise of their powers under Sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967, declared the L.T.T.E. to be an unlawful association and the notification in this regard was published in the Gazette of India on 14th May, 1992. While stating that the L.T.T.E has sympathisers, supporters and agents in India, the notification recites :
"(i) LTTE's objective for a homeland for all Tamils disrupts the sovereignty and territorial integrity of India and thus appears to fall within the ambit of an unlawful activity;
(ii) LTTE has created the Tamil National Retrieval Troops (TNRT) and encouraged and aided its members to undertake unlawful activities in India;
(iii) LTTE encourages and aids United Liberation Front of Assam (ULFA) which is an unlawful association;
(iv) Persons and organisations derive inspiration and encouragement from LTTE for their unlawful activities as well as activities punishable under Section 153 of the Indian Penal Code."
The validity of the aforesaid notification is not in issue in these two writ petitions. The F.I.R. clearly mentions that "M.V. Ahat" belonged to the L.T.T.E; it was "carrying sophisticated arms, ammunition, explosives and some L.T.T.E. cadre on board" and was monitored to be "moving towards the Indian coast".
In the Indian territorial waters, off the coast of Madras, on 16-1-1993 it was stopped and the members of the crew and the L.T.T.E. cadre were given every opportunity by the Indian Navy to surrender but "some personnel were seen throwing arms, ammunition and explosives over board before setting the ship on fire". Taken at their face value in their entirety, it is impossible to hold that these allegations do not constitute the offences mentioned in the F.I.R. There were passengers on board the ship other than the crew was clearly admitted in paragraph 9 of the affidavit filed by the petitioner in W.P.No. 3792 of 1993: "I state that Sadasivam Pillay Krishna Kumar alias Kittu and nine other members of the L.T.T.E. boarded the vessel on 7-1-1993 at Puberhala Island in Malaca straits near Indonesia". That the ship was carrying 100 tons of explosives also was admitted in the affidavit in paragraph 10. "Then he (Jayachandran, one of the detenus) threatened the captain of the Indian ship (INS 38 Viveka) that he has 100 tons of explosive substances and threatened him not to approach his vessel". Whether the nine detenus, the members of the crew, were also members of the L.T.T.E. is not free from doubt. According to the counter-affidavit filed by the Chief Investigating Officer, the Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam - the third respondent in W.P. No. 3792 of 1993 - all the detenus are members of the L.T.T.E. and they worked as crew men in M.V. Yahata. When a ship belonging to the L.T.T.E., a banned organisation, sails towards the Indian coast carrying 100 tons of explosives, it is hard to infer that no offence is made out especially when the allegations are viewed in the light of the objectives of the L.T.T.E mentioned in the notification of the Government of India dated 14-5-1992 banning that organisation; the allegations constitute terrorist acts under Sub-sections (1) and (3) of Section 3 and also disruptive acts under Section 4 of the TADA Act. Bringing arms into India is an offence punishable under Section 25(1) of the Indian Arms Act, 1959. The investigation discloses, according to the application filed by the Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam, before the designated court seeking police custody of the detenus:
".....The vessel 'M.V. Ahat' was carrying sophisticated arms, ammunition, explosives and when the members in the vessel were asked to surrender by the Indian Naval authorities, the L.T.T.E. cadre in the vessel were seen throwing the arms, ammunition and explosives into the sea. Some of the L.T.T.E.-cadres committed suicide by swallowing cynaide capsules while some of them jumped into the sea and the remaining occupants set fire to the ship causing explosion endangering the lives of the inmates and causing threat to the Indian Naval authorities. The carrying of arms, ammunition and explosives by the vessel M.V. Ahat and which was moving towards the Indian coast indicates the intention of the L.T.T.E. to cause disruptive, subversive and terrorist activities in the Indian territory."
Therefore, the prosecution invoking Section 436 (437?) I.P.C. and Sections 3 and 5 of the Indian Explosive Substances Act cannot be said to be legally impermissible. The jurisdiction of the designated court at Visakhapatnam was invoked because the detenus were brought to the Viskahapatnam Coast by INS Savitri, which operates from the Visakhapatnam Naval Base.
51. It is not necessary that in the F.I.R., there should be specific allegations regarding the intention of the detenus to use the arms and ammunition for terrorist and disruptive activities within the Indian territory. In the very nature of things, it was not possible to incorporate in the F.I.R., the information surfacing during the course of the investigation. The investigation done so far, according to the learned Additional Solicitor-General, points out that the ammunition was intended for use in India and many new offences also might surface in the course of further investigation. It is needless to say that the First Information Report is not intended to be an encyclopedia of the endire case. "Its effect", as pointed by the Privy Council in Emperor v. Nazir Ahmed (18 supra), is"
"to obtain early information of alleged criminal activity, to record the circumstances before there is time for them to be forgotten or embellished.....".
52. When once we are satisfied that there is no substance in the contention that the allegations mentioned in the F.I.R. - taken in their entirety - do not disclose the offences alleged, we are forbidden from scrutinising the contents of the F.I.R. for the purpose of ascertaining whether or not the prosecution is likely to succeed. Entertaining writ petitions against charge-sheets and considering the matter on merits by examining the available prima faice evidence with a view to drawing an inference whether the prosecution is likely to succeed amounts to prejudging a criminal trial under Article 226 of the Constitution even before the matter is taken cognisance of by the competent criminal court., See State of Bihar v. P.P. Sharma .
53. Before closing this aspect of the matter, we must refer to the decision of the Supreme Court in A. Lakshmanrao v. Judl. Magistrate, Parvatipuram, cited by the learned Additional Solicitor-General for the proposition that when detention was pursuant to an order of remand, the remedy of habeas corpus was unavailable. One of the contentions advanced in that case was mat there were no guidelines for making an order of remand under Section 344 of the old Criminal Procedure Code and, therefore, the power to remand was ultra vires being arbitrary and unguided. Rejecting mat contention, the Supreme Court expressed the opinion that the discretion to make a suitable order has to be exercised judicially keeping in view all the facts and circumstances of the case including the nature of the charge, the gravity of the alleged offence, the antecedents of the accused and other relevant factors and that the power being judicial, "the absence of an express, precise standard for determination of the question would not render the section unconstitutional". After observing so, the Supreme Court concluded:
"Detention pursuant to an order of remand which appropriately falls within the terms of Section 344 is accordingly not open to challenge in habeas corpus."
These observations, in our considered view, do not take away the power of this Court to examine the question whether the F.I.R. is liable to be quashed on the ground that the contents thereof do not disclose the offences alleged against the accused. This question did not fall for consideration before the Supreme Court in Lakshmanrao's case (25 supra) and, therefore, the aforesaid observations cannot have the effect of over-riding the settled legal principles for exercise of jurisdiction under Article 226 of the Constitution or under Section 482 of the Criminal Procedure Code to quash criminal proceedings.
54. In view of the fore-going reasoning, we hold that the F.I.R. in Crime No. 4 of 1993 is not liable to be quashed and accordingly, the point is answered against the petitioner.
Re. (5):
55. The assertion in the affidavit of the petitioner in W.P.No. 3793 of 1993 is that Sadasivam Pillay Krishna Kumar alias Kittu was taken into custody by the respondents on 13-1-1993 and "he was last seen alive in the custody of the respondents by the crew-men of M.V. Yahata at 6-30 a.m. on 16-1-1993" and as the whereabouts of the detenu - Kittu - are not known, it is deemed that he is in the illegal custody of the respondents. This was specifically denied in the counter-affidavit filed by the Chief Investigating Officer, the Deputy Superintendent of Police, Central Bureau of Investigation, Visakhapatnam respondent No. 4 in W.P.No. 3793 of 1993 - in which it was alleged that the L.T.T.E. cadres on board the ship set her aflame by firing with "A.K.-47" rifles and using hand grenades in spite of the repeated requests by the Naval authorities to surrender and when the ship was on flames, the Naval authorities rescued the nine detenus on 16-1-1993, who jumped into the sea. It was specifically averred in the counter-affidavit "the Naval authorities also recovered three dead bodies and none could be identified as that of Sri Sadasivam Pillay Krishna Kumar alias Kittu.....I also specifically deny the averment in para 16 that Sadasivam Pillay Krishna Kumar alias Kittu was last seen alive by the detenus in the custody of the respondents at 6-30 a.m. on 16-1-1993. The detenus and the L.T.T.E. cadre on board M.V. Yahata did not allow the Naval authorities to board their vessel. The investigation also did not disclose that Kittu was taken into custody by Naval /Coast Guard authorities". In view of the aforesaid specific averments in the counter-affidavit of the Chief Investigating Officer, it is not possible to believe that Kittu is in the custody of the respondents.
56. During the course of arguments, the learned Additional Solicitor-General has stated that at the moment, there is no definite information with the Government of India whether Kittu is alive or dead, but the present stage of investigation indicates that Kittu is no more; the torso recovered could be his but a final conclusion is yet to be arrived. We must also notice in this context that no rejoinder has been filed by the petitioner denying the assertions made by the fourth respondent in his counter-affidavit. On the material placed before us, we are inclined to hold that Kittu was not taken into custody by the respondents and, therefore, the question of producing him does not arise.
57. Point No. 5 is accordingly answered against the petitioner.
58. These two cases have been argued exhaustively for 2 1/2 days. Both the learned counsel - Shri Kannabhiran for the petitioner and the learned Additional Solicitor-General of India for the respondents -have covered the entire gamut of the subject with great thoroughness, precision and articulation. We place on record our grateful appreciation.
59. In the result, in view of our answers to point Nos. 2 to 5, both the writ petitions fail and accordingly they are dismissed.