MT ENRICA LEXIE RELEASED - HIGH COURT JUDGMENT
posted on May 18, 2012 00:14 am

MT ENRICA LEXIE RELEASED - HIGH COURT JUDGMENT WP(C) No. 6083/2012

 

IN THE HIGH COURT OF KERALA ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.S.GOPINATH

THURSDAY THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934

WP (c) NO.6083 OF 2012(I)

PETITIONERS:

1. M.T.ENRICA LEXIE,

A VESSEL FLYING THE FLAG OF ITALLY AND REGISTERED AT NAPLES OWNED

BY M/S.DOLPHIN TANKER SRL

VIA DEI FIORENTINI.21,NAPLES,ITALLY

REPRESENTED BY ITS POWER OF ATTORNEY HOLDER

MR.ROBERT WILLIAM,AGED 68 YEARS S/OF.N.D.CHACKO,BRANCH

MANAGER,JAMES MACKINTOSH AND CO. PVT.LTD.

DARRAGH MAIL SENDER,SECOND FLOOR,5TH CROSS ROAD,WILLINGTON ISLAND,COHIN-682003

 

2. M/S DOLPHIN TANKER SRL, AGED 68 YEARS VIA DEI FIORENTINI.21,NAPLES,ITALLY

REPRESENTED BY ITS POWER OF ATTORNEY HOLDER

MR.ROBERT WILLIAM,AGED 68 YEARS S/OF.N.D.CHACKO,BRANCH

MANAGER,JAMES MACKINTOSH AND CO. PVT.LTD.

DARRAGH MAIL SENDER,SECOND FLOOR,5TH CROSS ROAD,WILLINGTON ISLAND,COHIN-682003

 

3. ADVS. SREE.  V.J.MATHEW (SR)

   SREE.  P.K.SURESH KUMAR (SR)

   SREE.  BIJISH .B.TOM

   SREE. VIPIN. P.VARGHESE

   SMT. GISS ANTONY

 

RESPONDENTS:

 

1. CIRCLE INSPECTOR OF POLICE,

   COSTAL PLOCE STATION

   NEEDAKARA, KOLLAM – 691 582

 

2.  STATE OF KERALA REPRESENTED BY ITS CHIEF SECRATARIATE     THIRUVANATHAPURAM -695 001

 

3. DEPUTY CONSERVATOR COCHIN PORT TRUST, WILLINGTON ISLAND ,COCHIN -682 009

 

4. MERCHANT MARINE DEPARTMENT P.B. NO.3701 NORTH END P.O. WILLGTON ISLAND ,COCHIN -682009

 

5. UNION OF INDIARESENTED BY ITS SECRETARY

 MINISTRY OF SHIPPING NEW DELHI – 11000

 

ADVOCATE GENERAL SREE K.P.DANDAPPANI

BY ADV.SREE K .ANAND(A 201)

BY ADV.SMT.LATHA KRISHNAN

BY SREE P. PARAMESHARAN NAIR ,ASGO OF INDIA

BY ADV.SREE BASIL ATTIPETY(PARTY IN PERSON)

BY SREE P PARAMESHWARAN NAIR, ASGO OF INDIA

 

 

THIS WRIT PETITION (CIVIL ) HAVING BEEN FINALLY HEARD ON 29/3/2012 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :

 

P.S.GOPINATHAN J

WP ( C ) 6083 OF 2012

DTD THIS THE 29TH DAY OF MARCH 2012

 

JUDGMENT

 

Petition under article 226 of the constitution of India. On 15/2/2012 two fisherman on a fishing vessel by name St.Antony were short died. It was alleged that the assailants were on board of a vessel by name M.T.Enrica Lexie; Which is the 1st Petitioner, owned by the 2nd Petitioner. Basing upon the 1st information statement a case as crime No.2 of 2012 of Coastal Police station Neendakara for offence under sect.302 of the Indian Penal Court was registered. Consequently, the 1st Respondent was interpreted by cost Guard during her continued voyage and brought to Cochin and anchored subsequently, to security men own board the ship were arrested. After obtaining a search warrant from the Chief Judicial Magistrate Court Kollam, The vessel was thoroughly searched. Weapons and other connected articles were seized by the investigation officer. But the vessel was not allowed to leave the port. In the mean while, three Admiralty suits were instituted. As ordered by this court, In MFA 35/2012 (Admiralty) a sum of Rs.3 Crores. And 10 Lakhs Where deposited before the Registrar General But no sanction was accorded to sale the ship from Cochin port limits. According to the Petitioners the respondent are with holding permission fro sail of the vessel without any rhyme of reason. With these pleadings the petitioners sought for a writ of mandamus or any other appropriate direction or order directing to grand permission for sailing of the 1st petitioner vessel and her master to leave and proceed her voyage.

 

2        The 1st Respondent, on 5/3/2012 filed a statement that the investigation is not completed since the investigation could not be conducted for a period of 10 days due to the non – cooperation of the 1st petitioner and that the vessel could be searched only after obtaining warrant from the Chief Judicial Magistrate, kollam on 2/3/2012 and that the forensic examination of  the fire arms and the other items is only progressing and the report would be received within 14 days and that only thereafter, it could be decided whether the master of the ship is to be implicated and therefore the 1st petitioner shall not be allowed to continue the voyage.

 

3        During the course of the argument, it was submitted that on 26/3/2012, a report under sect.102 (3)of the code of criminal procedure was filed before the Chief Judicial Magistrate, Kollam, reporting that the vessel was under the police custody and that the 2nd Petition had  referred a petition as criminal  M.P.1500/2012 under sect.457  Cr.P.C and therefore, the remedy open to the petitioners is to pursue the petition under sect.457 Cr.P.C. Copies of the report and the Petition were made available

 

4.       The 3rd Respondent filed a statement that the 3rd Respondent has no objection for leaving the 1st petitioner provided the petitioner gets a clearance from the Police and Mercantile departments.

 

5        On behalf of the 4th Respondent, a statement is filed stating that the Director General Shipping, Mumbai, and Mercantile Marine Department have no objection to release the vessel as it was felt that the vessel need not be held any further for preliminary investigation conducted by the 1st respondent. Since all evidence from the Vessel have been taken the 4th Respondent further stated that the first petitioner may be released on condition that the second petitioner shall present Master/Crew/Security Guards of the first petitioner before any competent authority or court in India in order to pursue the investigation further, if so required, at the cast of the 2nd petitioner.

 

6.       It is not in dispute that the investigating Officer had made a thorough search of the first petitioner and all arms and other materials found relevant were seized. The plea of the learned advocate General that after getting report from the forensic science Laboratory there may be circumstances necessitating further search of vessel. In the light of report filed by the investigating officer under sect.102 (3) Cr.P.C,  I find no merit in the submission because it is specifically stated that search was conducted in the ship and documents and weapons involved in the offence were seized. From the report of investigating officer, I find that the vessel was subject to the disposal of the chief Judicial Magistrate ,Kollam, as the custody of the same was no more warranted by the investigating officer. Therefore, I find that it is not  appropriate to detain the vessel any more on the reason that forensic science laboratory report is not received

 

7.       As regards the disposal of the vessel, in  pursuance  to a petition under Section 457 of the Code of Criminal Procedure, I find that through the 2nd Petitioner as filed a petitioner under sect 457 Cr.P.C, the petitioners need not be shunted from this Court to the Court of Chief Judicial Magistrate Kollam, especially since the report was filed before this Court of during the pendency of the proceeding before this court. Indecently my attention is canvassed to the decision reported in Indra Kumar v. State of Maharashtra (1989 Crl.L.J.1439) wherein it is ruled that the person from whom the property is seized cannot bypass the magistrate who has to pass appropriate orders and rush to High Court and invoke its inherent jurisdiction. In this case, it is pertinent to note that the investigating officer had not seized the vessel at the time when this writ petition was filed on 9.3.2012. Had the vessel been seized as and when it was anchored at Kochi and report filed, or at least after search, definitely the petitioners would have moved the Chief Judicial Magistrate, Kollam for release. So also, no written communication prohibiting the voyage was served on the petitioners. It is therefore, the petitioners approached this Court. When the first respondent filed statement on 5.3.2012 also, there was no case of seizure. It is three weeks thereafter the seizure now comes. It is also pertinent to note that because of the detention of the vessel, Master and crew members on vessel, reported to be 23 are also stranded in high seas. In this view of the matter, crew members are detained rather than the vessel. Therefore, I find that it is not appropriate to nonsuit the petitioners on the basis of a subsequent seizure made for no good purpose. The ratio of the above decision has no application to the case on hand.

 

8.       The Apex Court, on time and again, cautioned that the vessels and vehicles seized for investigation shall not be unnecessarily detained causing loss to the owner of the vessel. See the decision reported in Sunderbhai Ambalal Desai V. State of Gujarat (2002(10) SCC 283 = 2002 KLT 1089). At para 7, the Apex Court has held as follows:

“In our view, the powers under Section 451 Cr. P.C should be exercised expeditiously and judiciously. It would serve various purposes, namely;

 

1.   Owner of the article would not suffer because of its remaining unused or by its misappropriation;

2.  Court or the police would not be required to keep the article in safe custody;

3.  If the proper panchnama before handing over possession of the article is prepared, that can be used in evidence instead of its production before the court during the trial. If necessary, evidence could also be recorded describing the nature of the property in detail; and

4.  this jurisdiction of the court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles.”

 

Admitted panchnama and other relevant documents were already prepared and produced before court.

 

9.       As alleged by the second petitioner, this vessel was detained since 15.2.2012. In the above circumstance and guided by the ruling of the Apex Court, I find that it would be appropriate to release the first petitioner to the second petitioner on conditions.

 

In the result, this petition is allowed. There would be a writ of mandamus directing respondents 1 and 2 to allow the voyage of the first petitioner on the following conditions:

 

i.                   The second petitioner shall execute a bond for Rupees three crores before the third respondent undertaking to produce the vessel/master/crew as and when called upon by respondents 3 to 5.

ii.                 The second petitioner shall file an affidavit before the third respondent undertaking that the vessel/master/crew of the first petitioner shall be produced before the third respondent as and when called upon on notice granting three weeks time.

 

The learned Advocate General would submit that on getting the report from the Forensic Science Laboratory, in the event the other security guards are found involved, respondents 1 and 2 should be permitted to arrest the other security guards now on board the first petitioner.

 

Till now none of the security guards on board are made as accused. However, it is clarified that in the event any of them are found involved with the offence alleged, this judgment would not hinder the course of investigation.

 

 

                                                          P.S. GOPINATHAN,

                                                                  (JUDGE)

 

                                                                //TRUE COPY//

 

 

APPENDIX

PETITIONERS’ EXHIBITS:

 

EXT. P1            THE TRUE COPY OF THE LETTER DATED 26.2.2012 ISSUED BY THE 1ST RESPONDENT TO THE MASTER OF THE 1ST PETITIONER VESSEL

 

EXT. P2           THE TRUE COPY OF THE LETTER NO. 35-NT(001)/2012 DATED 16.2.2012 ISSUED BY THE DIRECTORATE GENERAL OF SHIPPING, MUMBAI TO FRATELLI D’ AMATO SpA.

 

EXT.P3            THE TRUE COPY OF THE LETTER No. 19-CAS (13)/1889 DATED 17.2.2012 ISSUED BY THE 4TH RESPONDENT TO THE CHAIRMAN, COCHIN PORT TRUST.

 

EXT.P4.           THE TRUE COPY OF THE CERTIFICATE DATED 2.3.2012 ISSUED BY THE REGISTRAR GENERAL OF THIS COURT.

 

EXT.P5            THE TRUE COPY OF THE LETTER DATED 2.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD. TO THE 1ST RESPONDENT.

 

EXT.P6            THE TRUE COPY OF THE LETTER DATED 2.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD. TO THE 3RD RESPONDENT.

 

EXT.P7            THE TRUE COPY OF THE LETTER DATED 3.3.2012 ISSUED BY THE 3RD RESPONDNET TO JAMES MACKINTOSH & CO. PRIVATE LTD.

 

EXT.P8            THE TRUE COPY OF THE LETTER DATED 2.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD. TO THE 4TH RESPONDENT.

 

EXT.P9            THE TRUE COPY OF THE LETTER No. 19-CAS (13) DATED 5.3.2012 ISSUED BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT.

 

EXT.P10           THE TRUE COPY OF THE LETTER DATED 5.3.2012 ISSUED BY JAMES MACKINTOSH & CO. PRIVATE LTD. TO THE Dy. INSPECTOR GENERAL OF COAST GUARD, FORT KOCHI TOGETHER WITH THE ACKNOWLEDDMENT AND ADVICE OF THE COAST GUARD.

 

EXT.P11           THE TRUE COPY OF THE CIRCULAR/MS NOTICE NO.7 OF 2012 DATED 7.3.2012 ISSUED BY THE DIRCTOR GENERAL OF SHIPPING.

 

EXT.P12           THE TRUE COPY OF THE LETTER DATED 29.2.2012 ISSUED BY THE MASTER  OF THE 1ST PEITTIONER VESSEL TO THE COMMISSIONER OF POLICE, KOLLAM  AT THE TIME OF HANDING OVER THE ORIGINAL LOG BOOKS OF THE VESSEL TOGETHER WITH ACKNOWLEDGMENT.

 

EXT.P13           THE TRUE COPY OF THE RECEIPT DATED 6.3.2012 ISSUED BY THE 1ST RESPONDENT ON RECEIVING THE VDR HARD DISK, FURUNO OPERATOR’S MANUAL AND CABLE CONNECTOR FROM THE 1ST PETITIONER VESSEL.

 

EXT.P14           THE TRUE COPY OF THE RECEIPT DATED 6.3.2012 ISSUED BY THE FIRST RESPONDENT ON RECEIVING THE ORIGINAL BA CHART NO.1566 FROM THE 1ST PETITIONER VESSEL.

 

RESPONDENTS’ EXHIBITS/ANNEXURES:

 

ANNEXURE I              TRUE COPY OF THE ORDER DATED 23.2.2012 BY THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM.

 

ANNEXURE II             TRUE COPY OF THE ORDER DATED 2.3.2012 BY THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM.

 

 

 

 

P.S. TO JUDGE

 

 

 

                                                                //TRUE COPY//

 

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