Orissa High Court
Asia Pacific Shipping Company vs State Of Odisha Represented Through on 29 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1475 of 2025
Asia Pacific Shipping Company
Limited (Owner) represented
through its Authorized Legal
representative Mr. Arvind Kumar. ..... Petitioner
Mr. B.P. Bhatt, Advocate
Mr. Ravi Shankar Samal, Advocate
-versus-
State of Odisha represented through
the Superintendent Customs,
(Preventive) Commissionarate,
Bhubaneswar ..... Opp. Party
Mr. P.K. Parhi, D.S.G.I.
with Mr. D.S. Bhokta, C.G.C.
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
ORDER
29.04.2025 Order No. (Through hybrid Mode)
05.
1. This CRLMC has been filed with the following prayer:
"In view of the above facts and circumstances this Hon'ble Court may kindly be allow the CRLMC Application and allow the petitioner to comply the condition laid by the Learned Court below in condition No. III, Page No. 17 of the Order dated. 12.02.2024 under Annexure-1 by directing the Opp. Parties to allow the petitioner to comply the order of the learned Court below as soon as possible for the greater interest of Justice.
Or passed any order or orders as your Lordship thinks fit and proper.Page 1 of 13
And for the said act of your Kindness, the petitioner as in duty bound shall ever pray."
2. Annexure-1 to the CRLMC is order dated 12.02.2024 passed in Criminal Misc. Case No. 02 of 2024 by the learned Additional District and Sessions Judge, Kujang.
The operative portion of the order dated 12.02.2024 is extracted below:
"(i) The petitioner is directed to file bank guarantee of Rs. 10,00,00,000/- (ten crores) executed in any nationalised bank within the jurisdiction this court.
(ii) Further, the petitioner file an indemnity bond to the tune of the valuation of the vessel Rs.100,00,00,000 (rupees hundred crores) and one solvent surety for the like amount.
(iii) The petitioner is to file four hard copies of self attested photographs taken from all angles of the seized vessel. The digital photographs and a video clip of not more than one minute duration of the vessel from all angles, stored in a pen-drive is also to be filed.
The date on which data has been stored or copies to the pen-drive is to be furnished too. The photos and video stored in the pen-drive should be clearly visible and the photos should also reveal the International Maritime Organization (IMO) number of the vessel clearly. The images should be in JPG/JPEG/PNG format and the video should be of MPS/MOV/AVI etc. Page 2 of 13 format. The digital photographs and video clip be encrypted with a hash tag with date and time stamp with hash value. The digital photograph and video clip should carry date and time stamp with regard to their origin. Such photos and video clips are to be prepared in the presence of the both the parties. The cost of entire exercise is to be borne by the petitioner.
(iv) the aforesaid direction should be complied under the supervision of dealing assistant, Sri Durga Prasad Panda, Head Clerk who is also directed to supervise the compliance of above direction and to keep the encrypted copy with calculating hash value and the above compliance should be in accordance with the SOP as fixed by the Hon'ble High Court in W.P.C. No.34622/2021.
(v) He is not to tamper with the International Maritime Organization (IMO) number and colour of the said vessel and he is to keep the same in running condition.
(vi) He is not to dispose of the vessel in any manner pending trial of the present case and he is not to utilize the vessel in any illegal or criminal activity.
(vii) He is to file an undertaking that if ultimately it is found that he was not entitled to receive the possession of the seized vessel, and thereafter he is unable to return the vessel, the value of the vessel shall be recovered from him by enforcing the bonds and the security taken from him.
The Investigating Officer of the case is permit Page 3 of 13 the Petitioner to take photographs and video of the vessel. The Investigating Officer is to ensure that the photographs and video is taken in presence of both the parties. Issue notice to the complainant/petitioner to remain present before the Court for necessary compliance of the aforesaid direction.
Send a copy of this order to the Investigating Officer of this case for information."
Condition No.III which deals with taking of photographs and videos of the ship is relevant as the petitioner has prayed for compliance of the condition.
CASE OF THE PETITIONER
3. The facts of the case as per the CRLMC is that the vessel M.V DEBI was under chatter agreement with chatter DAVA and was on Voyage from Gresik Port, Indonesia to Paradeep Port, India. The vessel reached at Paradeep on 29.11.2023 and commenced loaded of cargo on 30.11.2023 and was supposed to discharge at Fredericia Port, Denmark. While loading of cargo was under process, there was an oil leakage on crane no.3 for which the master of the vessel sent to Chief Officer as well as the second engineer to inspect it. During the endeavour, it was found that some strange packet were present. Further, similar packets were also detected on crane no.2. Thereafter, the master of the vessel immediately sent mail to the charter agent Page 4 of 13 and also informed the Govt. authorities about the incident through mail, Thereafter, the Paradeep police station informed about the incident to the offices of Paradeep Custom Division. Basing on the information received from Paradeep Police station, the officers of Paradeep Custom Division during such proceeding effected seizure of total 22.22 k.g. of white/brown colour hard brittle substance with pungent smell suspected to be cocaine in total 22 number of packets all recovered from unboard vessel MV DEBI along with the packing materials and magnet. Subsequently, on dated 22.12.2023 the vessel MV DEBI was seized vide seizure memo dated 22.12.2023 under Panchnama dated 22.12.2023.
4. CRLMC No. 2 of 2024, under Section 457 of Cr.P.C. was filed by the petitioner in the Court of the learned Additional District and Sessions Judge, Kujang and the same has been disposed of on 12.02.2024.
5. After passing of this order, the petitioner had approached the investigation officer in Criminal Misc. Case No. 2 of 2024 arising out of Custom Paradeep Division through representation dated 04.04.2025 which was duly accepted by the I.O., but they did not comply with the Court's order by not permitting/allowing the petitioner to take photographs of the ship. Page 5 of 13
6. The representation dated 04.04.2025 which has been annexed as Annexure-3 to this CRLMC, is addressed to the Investigating Officer in Criminal Misc. Case No. 2 of 2024 arising out of Custom Paradeep Division, Jagatsinghpur File No.VIlI-CUS-26 (01) DEBI/PDP/2023 corresponding to Special G.R. Case No.65 of 2023, Custom Commissioner Paradeep and prayer has been made to permit the petitioner to take photograph and videography and to remain present during the photography. It has been stated in application that
(i) Mr. Arvind Kumr and (ii) Mr. Nguen Quoc Anh (Passport No.C7061514) will accompany the I.O. or his representative.
7. In paragraph-6 of this CRLMC it has been stated as follows:-
"That it is pertinent to mention here that on Ocean going vessel required timely maintenance including anti corrosive painting/treatment and the petitioner has been in brisk end of his business by loosing 20,000 U.S Dollar in a day basis and the vessel has been seating in dock since long which may leads to blast in engine, leakage of oil lead to marine pollution and damaged to floura and fauna and also marine life and further fisherman costal area may be affected including that of fish polluting for which International Marine Traffic shall be affected."
SUBMISSIONS
8. Mr. A.K. Bhatt, learned counsel appearing on behalf of the Page 6 of 13 petitioner submits that the insurance of the ship has been extended till 30.04.2025 and the vessel M.V. DEBI is critically overdue for dry-docking and maintenance, and her continued detention exposes grave dangers. But there is no pleading to that effect in the CRLMC nor any documents to that effect have been filed along with the CRLMC.
9. Today a chronological summery of events in the matter of vessel M.V. DEBI in the form of a note has been filed but most of the events mentioned in the note are not reflected in the CRLMC filed in this Court.
10 A written note of submission has also been filed today on behalf of the applicant Vessel owner where there is a reference to a number of decisions of the Supreme Court and two and three lines of these decisions have been quoted in the note, but none of these decisions have been furnished/submitted for perusal of this Court. The written note of submissions as well as the note of chronological summary of events in the matter of Vessel M.V. DEBI filed in Court, are taken on record.
11. In the written note of submission the following prayer has been made made which again is not the prayer in this CRLMC:-
"FINAL PRAYER In view of the above facts, principles of law, Page 7 of 13 humanitarian considerations, and grave risks to environment and public safety, the Applicant humbly prays that this Hon'ble Court may graciously be pleased to;
1. Direct the Customs Authorities to forthwith grant permission for photography and videography of the vessel M.V. DEBI in compliance with the Hon'bie Court's bail order dated 12.02.2024.
2. Record and accept the Applicant's unconditional undertaking to comply with any future orders of the Hon'bie Supreme Court;
3. Direct issuance of necessary No Objection Certificate (NOC) and Port Clearance (PC) within 24 hours of compliance;
4. Direct the release of vessel M.V. DEBI immediately upon fulfillment of the bail conditions;
5. Pass such other and further orders as may be deemed just and proper in the facts and circumstances of the case and in the interest of justice, public safety, and environmental protection.
AND FOR THIS ACT OF KINDNESS, THE
APPLICANT AS IN DUTY BOUND SHALL EVER
PRAY."
12. Mr. P.K. Parhi, learned Deputy Solicitor General of India for the Union of India does not object to the prayer of the petitioner for being granted permission to enter the port and to take photographs and video of the Vessel, but prays for an adjournment in order to file Page 8 of 13 an objection stating that the opposite party has filed an I.A. No. 1178 of 2025 stating therein that the common judgment dated 07.03.2025 passed by this Court has been challenged in the Supreme Court and the application has been registered as SLP Diary No. 20188 of 2025.
He submits that as the matter is subjudice before the Hon'ble Supreme Court, the CRLMC may be adjourned.
Mr. D.R. Bhokta, learned Central Government Counsel is present in Court and produces the latest status report in Diary No. 20188 of 2025 and submits that all defects in the case has been removed, but fairly admits the SLP has not yet been registered nor the matter listed before the Supreme Court.
ANALYSIS AND CONCLUSION
13. On 21.04.2025 when the CRLMC was listed, the State of Odisha had been arrayed as sole opposite party in this CRLMC, Mr. S.J. Mohanty, learned Additional Standing Counsel had brought to the notice of this Court about the common judgment passed on 07.03.2025 by this Court in CRLMC No.441 of 2024 filed by the petitioner and CRLREV No. 93 of 2024 filed by the opposite party.
The disposed of records in the two cases along with the judgment were therefore directed to be tagged to this CRLMC. On 24.04.2025, the CRLMC was allowed to be amended and Union of India was Page 9 of 13 impleaded as opposite party in place of State of Odisha.
14. As it has not been disclosed in the CRLMC that the petitioner had earlier approached this Court in CRLMC No. 441 of 2024 praying for modification of order dated 12.02.2024 passed in CRLMC No. 2 of 2024 by the learned Additional and District Sessions Judge, Kujanga and the same order had also been challenged by the Union of India in Criminal Revision No. 93 of 2024 and both the cases have been disposed of by common judgment dated 07.03.2025 by a coordinate Bench of this Court. It is apparent that the petitioner has not approached this Court which clean hands.
15. Perused the judgment dated 07.03.2025.
16. By said judgment, this Court dismissed Criminal Revision Petition No. 93 of 2024 as being devoid of merit but modified order dated 12.02.2024 by issuing the following directions:-
"31. Reverting back to the financial condition imposed in condition Nos.1 and 2, this Court finds that the condition No.1 with regard to furnishing a Bank Guarantee would be a harsh condition so far the Petitioner-Shipping Company is concerned since they are not having any bank account in India. Therefore. the condition No.1 requires reconsideration by this Court. Accordingly, the condition No.1 is hereby Page 10 of 13 waived. So far the condition No.2 is concerned, the value of the vessel has been assessed on a hypothetical basis. In other words, the real value of the vessel has not yet been assessed by any certified valuer in the present case. Basing upon the insurance declaration, the value of the vessel has been arrived at Rs.100 crores. Therefore, this Court is of the view that the same may not be the actual cost of the vessel which is stranded at the Paradeep port at the moment. Since no valuation report by a certified valuer could be produced in course of the hearing of the present application by the customs authorities, this Court is required to take a reasonable approach in the matter, particularly, keeping in view the factual background of the present case and the progress made in the investigation so far. Accordingly, the condition No.2 is modified to the extent that instead of Rs.100 crores, the Petitioner-Shipping Company shall now furnish an indemnity bond to the tune of Rs.75 crores and instead of one solvent surety for the like amount, they shall famish two solvent sureties for the like amount. Further, it is directed that the other conditions of order dated 12.02.2024 shall remain intact."
17. In effect this Court has modified condition no. II to the extent that instead of Rs.100 crores, the Petitioner-Shipping Company shall furnish an indemnity bond to the tune of Rs.75 crores and instead of Page 11 of 13 one solvent surety for the like amount, it shall furnish two solvent sureties for the like amount and this Court waived the direction for furnishing a bank guarantee as the petitioner does not have any bank account in India.
18. On account of the petitioner not mentioning about filing of the earlier CRLMC, normally, I would have dismissed this CRLMC with cost, but in view of the innocuous nature of the relief claimed in this CRLMC which is to direct the opposite party to allow the petitioner to enter the port and click photographs and videos of the Vessel which has already been directed by the learned Additional and District Sessions Judge, Kujanga and confirmed by this Court in its judgment dated 07.03.2025, I allow the CRLMC and direct the opposite party to permit the petitioner to take photographs and videographs as directed vide condition no.III of order dated 12.02.2024, but subject to payment of cost of Rs.10,000/- (Rupees Ten thousand only) to the Orissa High Court Bar Association Welfare Fund in course of the day.
19. The petitioner shall be permitted by the opposite party to take photographs and videographs of the vessel tomorrow (30.04.2025), as receipt showing payment of cost of Rs.10,000/- has been filed in the Court today.
Page 12 of 13
The receipt be scanned and incorporated in the digital record by the Registry.
20. Urgent certified copy of this order be granted on proper application in course of the day.
(Savitri Ratho) Judge Sukanta Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 29-Apr-2025 20:55:34 Page 13 of 13