A.M.BASHEER AHAMED,J. - (1.) The present Criminal Appeals are directed against the conviction and sentence passed in S.C.No.262 of 2015, by the learned Principal Sessions Judge, Thoothukudi, dated 11.01.2016, holding that the appellants/accused A1 to A35 are guilty for the offences under Section 25(1-A) of the Arms Act, 1959 and sentenced them to undergo Rigorous Imprisonment for five years each and to pay a fine of Rs. 1000/- each, in default, Rigorous Imprisonment for six months each; to undergo Rigorous Imprisonment for one year each and to pay a fine of Rs. 1000/- in default, Rigorous Imprisonment for three months each, for the offence under Section 25(1-B) of The Arms Act, 1959 and to undergo Rigorous Imprisonment for one year each and to pay a fine of Rs. 1000/- each, in default, Rigorous Imprisonment for three months each, for the offence under Section 25(1-B)(f) of the Arms Act.
(2.) The brief facts, which leading to filing the present appeals, are as follows:- On 11.10.2013, the Indian Coast Guard received an information that a vessel named "M.V.Seaman Guard Ohio" with arms, ammunition and guards stationed at Latitude 080 52.0' North and Longitude 0780 26.7' East on 12.10.2013 at 03.30 hours and the location about 10.8 Nautical Miles from Thoothukudi Port, and 3.8 N.m from the baseline promulgated by the Ministry of External Affairs Notification SO.1197(E), Dated 11th May 2009, without any permission to enter into the Indian Coast and one unidentified boat from Thoothukudi was suspected to have sailed to that vessel for doing some illegal act. On the basis of information received, the Indian Coast Guard Station Ship "Naikidevi" intercepted the suspected vessel. On enquiry, the crew members admitted that they were carrying with arms and ammunitions on the vessel. On such admission, the Coast Guard Ship directed "M.V. Seaman Guard Ohio" proceed to Tuticorin Port, for further investigation. The vessel was accordingly escorted under the supervision of Captain KPP Kumar along with 3 armed guards of Indian Coast Guard Station. The vessel reached the port around 13.25 hrs on 12.10.2013. Thereafter, the vessel was boarded by Joint Interrogation Committee comprising representatives of Indian Coast Guard, Customs and other agencies on the same day at 14.00 hours. During interrogation, they found huge quantity of arms and ammunition's kept in the vessel "M.V.Seaman Guard Ohio". They verified the Deck Log book entry of the vessel and it tallied with the position of anchored vessel in the Indian Territorial waters. The Joint Interrogation continued on 13.10.2013 also and the minutes of the Joint Interrogation Committee reveals that the vessel was carrying arms, but did not have any authorisation for the same. The Master of the vessel could not produce documents or authorisation for carrying arms even after 24 hours. The minutes also observed that the vessel has received diesel illegally at Sea from a fishing boat. In accordance with the minutes of the Joint Interrogation Team, the vessel was handed over to the Coastal Security Group, Thoothukudi, on 13th October 2013. Mr. Narendran, Assistant Commandant Boarding Officer of Indian Coast Guard Ship, Naikidevi, lodged a written complaint with the Tharuvaikulam Marine Police Station, Tuticorin, narrating the aforementioned facts with details, which had come to their knowledge while inspecting the vessel. (ii) On receipt of the written complaint on 13.10.2013 at about 18.00 hours, the Inspector of Police, Marine Police Station, Tharuvaikulam registered an FIR in Crime No.18 of 2013, under section 25(1B), (a)(f) of the Arms Act, 1959 and Section 7 (1)(a) (ii) of the Essential Commodities Act, 1955 and Section 2(m) (5) of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 1998 and took up investigation. Latter, on 15.10.2013, as per the orders of the Director General of Police, Tamil Nadu in R.C.No. 176936/Crime/IV(2)/2013, dated 15.10.2013, the case was transferred to 'Q' Branch CID, for further investigation. (iii) The Inspector of Police, 'Q' Branch, Thoothukudi, took up the investigation on 16.10.2013 and visited the vessel "M.V.Seaman Guard Ohio", which was secured at 2nd berth, V.O.C. Port, Thoothukudi and prepared a rough sketch and observation mahazar on the same day. On 17.10.2013, the Investigating Officer visited the vessel to collect some more documents for the purpose of investigation. During the visit, it was found that 35 fire arms, 5,682 ammunition and 102 magazines were kept in the vessel, without any documents for its possession. Hence, those arms and ammunition were seized after physical verification from 11.30 p.m on the same day to 4.00 a.m on 18.10.2013. The factum of seizure of arms/ammunition was intimated to the Court of Judicial Magistrate No.II, Thoothukudi. Seizure was effected under the cover of mahazar, attested by independent witnesses, as there were no valid documents in the vessel, for such possession. (iv) On 18.10.2013, in continuation of earlier investigation A4/Paul David Dennish Towers, A6 to A37 were arrested at about 07.45 hours at 2nd berth, V.O.C Port, Thoothukudi. A3 and A5 were allowed to be in the vessel for its maintenance, as per their request. All the arrest had been made after observing all legal formalities. On 19.10.2013, A3 and A5 were also arrested in the vessel at 2nd berth V.O.C Port, Thoothukudi, after observing all legal formalities as well as the accused A3 to A37, who were sailing in "M.V. Seaman Guard Ohio" vessel were unable to produce licence or any authorisation order from the competent authority in accordance with the provisions of the Arms Act, 1959 for the possession of fire arms and ammunition in the vessel. They have also kept such documents, which they were expected to keep in the vessel itself during its voyage. (v). The seized fire arms and ammunition have been remanded to judicial custody on 18.10.2013 and kept at the Armoury of CISF, Thoothukudi. On 19.10.13, accused A38 Maria Anton Vijay was arrested and A39 Vijay, A40 Ranjithkumar, A41 Murugesh and A42 Selvam were arrested on 20.10.2013, for being responsible for the illegal supply of diesel to the vessel "M.V.Seaman Guard Ohio" with the able assistance and facilitation of absconding accused A43 to A45, when the vessel was anchored in the territorial waters of India in contravention of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices), Order 1998, which is punishable under Essential Commodities Act. (vi) On 24.10.2013, A4 Paul David Dennish Towers, A6 Lalith Kumar Gurung and A7 Radheshdhar Dwivedi were taken on police custody and based on their confession, Investigating Agency visited the vessel "M.V.Seaman Guard Ohio", on 27.10.2013 and recovered certain documents relating to the weapon movements and mail transactions between the vessel and 'Advan Fort Company'. In addition to those seizures, the Central Processing Unit (CPU) and the Digital recorder from the vessel bridge, besides 1 litre of diesel from 10 barrels kept on the deck which was illegally purchased from the accused A38 to A45 were also collected. On 31.10.2013, the seized 35 fire arms and samples of 50 ammunition of five categories ie., (i) 7.62 x 39 mm -10 (ii) 7.62 x 63 mm-10 (iii) 7.62 x 51 mm -10 (iv) 5.56 x 45 mm -10 and (v) 9 mm -10 and 17 magazines of 9 categories (I) Browning Ltrac Weapon -2, (ii) CZ858 Weapon -2 (iii) SAIGA M3 Weapon-2 (iv) HKG3 Weapon-2 (v) SLR Weapon-2 (vi) Benelli MRI Weapon-2 (vii) Benelli Argo E Weapon-1 (viii) Oberland Weapon-2 (ix) Glock 17 Weapon-2 were sent to the Tamil Nadu Forensic Sciences Department, Chennai, for analysis. Similarly, the diesel samples collected from 10 barrels were also sent to Hindustan Petroleum Corporation Limited, Washermanpet, Chennai, for analysis. The Ballistics Report of Tamil Nadu Forensic Sciences Department, Chennai, dated 08.11.2013, discloses that 49 items were analyzed and among them, items 16 to 21 are prohibited arms. (vii) Investigation also disclosed that the vessel belongs to A1 Advan Fort Company, 1875 Eye Street, MW, 5th Floor, Washington DC-2006, USA and its Operations Director is A2/Mohamed Frajallah. Both the 'Advan Fort Company' and its Operations Director Mohamed Frajallah are mainly responsible for all the clandestine acts committed by the other accused A3/Dudnik Valentyn, Captain of the vessel, A4/Paul David Dennish Towers, Tactical Deployment Officer of the vessel, who were found in physical possession of 35 fire arms and other ammunition without any valid documents in the vessel "M.V.Seaman Guard Ohio". A1/Advan Fort Company represented by Mohamed Frajallah and A2/Mohamed Frajallah, Operations Director of the Company are mainly responsible for the control over the administration of the company's vessel "M.V.Seaman Guard Ohio" in which, 35 fire arms and other ammunition were kept by A3/Dudnik Valentyn and A4/Paul David Dennish Towers jointly with other crew and guards, who were the occupants of the vessel, without having any licence and authorisation from the Competent Authority, only with the connivance and knowledge of the said company. Further A1 and A2 are also liable to be prosecuted for the contravention of the relevant provisions of The Arms Act, 1959, for such possession of the fire arms by A3 and A4 in the vessel, who were keeping the arms and ammunition at the joint control of other occupants of the vessel, such as A5 to A37, the crew and Guards on their behalf. (viii) Further A1/'Advan-Fort Company' represented by A2 and A2, the Operations Director of the said company are directly responsible for illegal bunkering of diesel from A38 to A45 and such purchase was effected by A3, A5, A6 and A7, employees of the vessel, on the instruction of A1 and A2. A1 'Advan Fort Company' represented by its Operations Director Mahamed Frajallah, owner of the vessel "M.V.Seaman Guard Ohio" and it is a utility vessel registered in Sierra Leone in West Africa. A2/Mohamed Frajallah, Operations Director, Advan Fort Company, USA is mainly responsible for the business administration of the vessel and also for the employees of "M.V.Seaman Guard Ohio". A3/Dudnik Valentyn, Ukraine, is the Captain of the vessel, who is responsible for the general control of the vessel for making arrangements of bunkering and provisions received illegally and dishonestly. He also aided and facilitated the possession of fire arms and ammunition in the ship without any licence or authorisation from the competent authority and he himself directly having the control and possession of the fire arms kept in the vessel, jointly with A4 and other crew and guards. A4/Paul David Dennish Towers, Britain, Tactical Deployment Officer, who is in charge of the armed guards in the vessel and looking after sending and receiving of guards with arms and ammunition to merchant vessels and maintaining the relevant records; A5/Sidorenko Valeriy, Ukraine, Chief Engineer, the person, who operates the engine of the vessel, aided and facilitated the possession of fire arms and ammunition in the vessel and indulged himself in illegal bunkering; A6 Lalitkumar Gurung, Maharashtra, India, Chief Officer, who is the person in charge of Deck Department and navigation watch, responsible for maintaining Deck Log Book and making entries relating to the vessel movements and about the illegal bunkering and unauthorised purchase of diesel from the Accused A38 to A45 and also maintaining the Chief Officers Deck Log Book in the bridge of the vessel, aided and facilitated the possession of fire arms and ammunition in the vessel and indulged himself in illegal bunkering; A7/Radhesh Dhar Dwivedi, Uttar Pradesh, India, Second Officer, the person in charge of navigation watch was responsible for maintaining Deck Log Book and Chief Officer's Deck Log Book in the bridge of the vessel along with A6 Lalit kumar Gurung, alternatively once in six hours, aided and facilitated the possession of fire arms and ammunition in the vessel and indulged himself in illegal bunkering; A8/Naveen Rana, Himachal Pradesh, India, Third Officer/Engineer is assisting the operation of the vessel aided and facilitated the possession of fire arms and ammunition in the vessel; A9/Dinesh Narayanan, Kerala, India, Oiler and A10/Ramesh Kumar, Himachal Pradesh, India, Oiler, who are the other crew of the vessel assisting engineering Department of the vessel, aided and facilitated the possession of fire arms; A11/Rajan Thandapani, Tamil Nadu, India and A12/Abijit Ashok Sawani, Maharashtra, India, Able Bodied Men, the person who are assisting the Deck Officer in doing certain work allotted to them in the bridge for the movement of the vessel and aided and facilitated the possession of fire arms and ammunition in the vessel; A13 Jagdish Prasad, Uttaranchal, India, Chief Cook, the person who maintains cooking Department, aided and facilitated the possession of fire arms and ammunition in the vessel in joint control; A14/Renee Tonissaar, Estonia, A16/Raigokustmann, Estonia, A17/Vladislov Korsunov, Estonia, A19/Alvar Hunt, Estonia, A21/William Irving, United Kingdom, A22/Igortotrov Lev, Estonia, A24 Krito Koha, Estonia, A25 Levgen Semenov, Ukraine, A27/Raymond John Tindall, United Kingdom, A28 Nicholas James, United Kingdom, A29/John Wilson Armstrong, United Kingdom, A31/K.V.Prakashan, Kerala, India, A33/Sudheer, Keala, India, A34/Unnikrishnan, Kerala, India, A36/Andrej Gortsagov, Estonia, A37/Harijeet Singh, Punjab, India are Security Guards, who provide security to merchant vessels under their team leaders as directed by A1/Advan Fort Company through Tactical Deployment Officer of Seaman Guard Ohio and aided and facilitated the possession of fire arms and ammunition in the vessel.; A15 Ignor Blinkov, Estonia, A18/Lauriader, Estonia, A29 Dennis Sukhenlov, Estonia, A23/Roman Obeitsak, Estonia, A26/Nicholas Simpson, United Kingdom, A30/Aleksei Tutonin, Estonia, A32 Demitri Pappel, Estonia and A35/Jogiste, Estonia, Team Leaders, who are in charge of one or more guards armed with fire arms, provides security to other merchant vessels as directed by Advan Fort Company through Tactical Deployment officer of Seaman Guard Ohio, aided and facilitated the possession of fire arms and ammunition; A38 Maria Anton Vijay received an amount of Rs. 7,00,000/- through his Manager A41/Murugesh and arranged for getting diesel from 'M.V.S.Muthuvel and Sons' Petrol Bunk, Thoothukudi and also provisions and transported the same to the fishing Harbour in a vehicle 'TATA Ace', bearing registration No. TN 69-AH-8457 with the able assistance of A39 to A45 and then the diesel was transported in a fishing boat by A39/Vijay in his father's boat along with A45/Vinoth to the vessel unauthorisedly and the boat was operated by one James and indulged himself in illegal sale and supply of diesel to "M.V.Seaman Guard Ohio" through his associates; A39/Vijay illegally and unauthorisedly transported about 2,000 litres of diesel in 10 barrels in the fishing boat by himself along with A40/Ranjithkumar supplied the same to "M.V.Seaman Guard Ohio" vessel on 11.10.2013 night along with A45/Vinoth and thus sold the same illegally, when the vessel was in the territorial waters of India and anchored; A41 Murugesh received an amount of Rs. 10,00,000/- from A43/Munithevan in his HDFC Bank Account No.11041050004770 at Thoothukudi on 09.10.2013 has withdrawn an amount of Rs. 7,00,000/- on the same day and handed over to his Master A38 Maria Anton Vijay. On receipt of the same, A38 purchased 2,000 litre of diesel from 'MVS. Muthuvel and Sons Petrol Bunk' at Thoothukudi, for supplying the vessel, as directed by A43/Munithevan; A42/Selvam, who accepted the contract with A38 for providing provisions to the vessel in the sea and received a sum of Rs. 15,000/- for the transaction, transported the provisions to the vessel M.V.Seaman Guard Ohio, but had to return halfway through due to rough sea, had stored the same in 'Raghu Ice and Cold Storage', Thoothukudi, with an intention for supplying the same to the vessel, the next day and also aided and facilitated and indulged himself in the illegal sale and supply of diesel to the vessel M.V.Seaman Guard Ohio on 11.10.2013; A43/Munithevan of Chennai received an amount of about Rs. 20,00,000/- (40,476 US$) from A1 Advan Fort Company through bank transaction, credited in his HDFC Bank Account No.50200000105782 in Chennai for purchase of diesel and provisions to be supplied to the vessel through his associates at Thoothukudi. On receipt of the same, A43 credited an amount of Rs. 10,00,000/- in the HDFC Bank account of A41 Murugesh, the Manger of A38 Maria Anton Vijay at Thoothukudi. On receipt of the same, A41 withdrew an amount of Rs. 7,00,000/- on 09.10.2013 and handed over the same to A38, who in turn purchased 2,000 litres of diesel from 'M.V.S.Muthuvel and Sons Petrol Bunk', Ettayapuram Road, Thoothukudi transported the same to the fishing Harbour with the assistance of other accused by transporting the same in a fishing boat on 11.10.2013 evening; A44/Vimal on the instruction of A43/Munithevan informed A38/Maria Anton Vijay at Thoothukudi regarding the purchase and supply of diesel to the vessel and thus aided and facilitated and indulged himself in illegal supply and sale of diesel to the vessel along with other accused concerned; A45/Vinoth, who unauthorisedly sailed along with A39/Vijay in the fishing boat owned by the father of A39 and A40/Ranjith Kumar supplied and sold diesel in 10 barrels to "M.V.Seaman Guard Ohio" vessel. A39 and A45 transported the same in a fishing boat from the fishing Harbour aided and facilitated and indulged themselves in the illegal supply and sale of diesel to the vessel on the night of 11.10.2013; (ix) All the Guards A14 to A37, who were provided with fire arms without any proper licence in accordance with the provisions of The Arms Act, 1959 did possess Flag Nation Endorsement Certificate for their employment in the Flag Nation vessel. The employees of "M.V.Seaman Guard Ohio" vessel A3 to A37 performing the duties allotted by 'Advan Fort Company' in Washington District of Columbia represented by A2/Mohamed Frajallah, Operations Director, has registered in the country Sierra Leone in West Africa. They are expected to keep the documents in the vessel in their journey at sea such as (1) certificate of registration (2) International Tonnage Certificate (1969), (3) Cargo ship safety Certificate (4) International Load Line Certificate (5) Cargo Ship Safety Radio Certificate (6) Record of equipment for the cargo ship safety Radio Certificate form (R), etc. But the certificates found on the vessel viz., (1) International Tonnage Certificate (1969), (2) Cargo ship safety certificate (3) International Load Line Certificate (4) Cargo Ship Safety Radio Certificate (5) Record of equipment for the cargo ship safety Radio Certificates issued by the International Register of Shipping (IRS) were recognized by Indian Maritime Administration or IACS (International Association of Classification Society) as per Merchant Shipping Regulation of Entry into Ports Government Gazette GSR 311 (E) dated 20.04.2012. The Seaman Guard Ohio vessel owned by 'Advanfort Company', USA, was illegally anchoring at the territorial waters of India since 10.10.2013 and remained there till its interception by the Indian Coast Guard officials on 12.10.2013 at 03.30 hrs. The Captain, the first officer and the second officer of the vessel are legally bound to make a declaration of their arrival in territorial waters of India and possession of arms and ammunition to the Port Authorities, as per Director General of Shipping Circular NT/ISPS/Circular No.1 of 2011, but failed to carry out the same and contravened the provisions of section 36 of the Arms Act, 1959. (x) On 10.10.2013 the Seaman Guard Ohio, a utility vessel owned by Advanfort Company, Washington District of Columba, USA which was registered at Sierra Leone country in West Africa, was anchoring in the territorial waters of India at the position 08052.0' North, 078026.7' East and remained there till its interception by the Coast Guard officials on 12.10.2013 at 03.30 hrs without any declaration of its entry and possession of arms and ammunition to the Port/Naval/Coastal authorities or to the nearest Port Marine Police Station of Thoothukudi as defined under section 36(2) of the Arms Act, 1959 and also in contravention of Direction General of Shipping circular NT/ISPS/Circular No.1 of 2011, without any proper documents for keeping them in the vessel and also for handing them and for such possession and carrying 35 firearms. Among them, 6 fire arms are in the nature of prohibited firearms as defined under Government of the Republic of India, in contravention of section 7 of the Arms Act, 1959, which is punishable under section 25 (1A) of The Arms Act 1959 as amended by Act 25 of 1983 and Act 42 of 1988 and under Section 25 (1B) (a) r/w section 3 of The Arms Act, 1959 and 25 (1B) (f) r/w. Section 10 in respect of other firearms. (xi) Having knowledge of the said unauthorized entry of the vessel in the territorial waters of India, A38 to A45, dishonestly and unauthorisedly supplied and sold about 2,000 litres of High Speed Diesel to the "M.V.Seaman Guard Ohio" vessel on 11.10.2013, contravening the provisions of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order 1998, under Order 2 (e) (vi) and in turn the employees of the vessel A3, A5, A6, A7 as per the directions of A1 and A2 dishonestly and unauthorisedly purchased the same in contravention of the said order under Order 2(e) (v), which are punishable under Section 7 (1)(a) (ii) of Essential Commodities Act, 1955. (xii) Thus, the accused A1 to A5, when the vessel "M.V.Seaman Guard Ohio" was in the territorial waters of India in the position 08052.0' North, 078026.7' East between 10.10.2013 and 12.10.2013 adjacent to Vilangusulli Island, Thoothukudi District at 3.8 Nautical Miles from the base line and earlier specifically in between first week of October 2013 and 12.10.2013 at Thoothukudi, Chennai, Dubai and other places agreed to do an act by illegal means and thus conspired to commit the offences such as conceal the possession of Arms and ammunition kept in the vessel without any document and without any declaration, when anchored the vessel "M.V. Seaman Guard Ohio" in the territorial waters of India, to the Port authorities or to the Indian Coast Guard authorities and others, illegally and unauthorisedly purchased High Speed Diesel from unauthorised persons A38 to A45, for the vessel "Seaman Guard Ohio" and thus the crew and guards of the vessel contravened the provisions of Sections 3, 7, 10, 33, 35, 36 (2) of the Arms Act, 1959 punishable under sections 25 (1-A), 25 (1B), (a) and 25 (1B) (f) of The Arms Act, 1959 and under Section 30 and also contravened the Order 2 (e) (v) and (vi) of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices), Order 1998, punishable under Section 7(1) (a) (ii) of Essential Commodities Act, 1955 and thus A1 to A45 did their best in carrying out, the said clandestine acts by abetting themselves with a view to achieving the common design of conspiracy and decided to do any other act, as per the needs of the situation, if warranted in future in achieving the common design of such conspiracy, as narrated and thereby, A1 to A45 have committed an offence of conspiracy punishable under Section 120(B) IPC and 120(B) IPC r/w Section 33, 35 and 3 r/w Section 25 (1B) (a), Section 7 r/w 25 (1-A), Section 10 r/w. Section 25 (1B) (f) of The Arms Act, 1959 and Rule 30 of The Arms Rules, 1962, Section 36(2) r/w section 30 of The Arms Act, 1959 and Section 3 (2) (d) r/w 7 (1) (a) (ii) of Essential Commodities Act, 1955 and Order 2 (e) (v), (vi) of Motor Spirit and high Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order 1998. (xiii) In pursuance of the said conspiracy and in the course of the same transaction, the accused A1, A2, A3 and A4 were directly responsible for keeping the firearms at the vessel and A5 to A37 being the occupants in the vessel found in constructive, physical and joint possession of 35 firearms, ammunition and magazines among them 6 prohibited HKG3 firearms as defined under section 2(1)(i) of The Arms Act, 1959, bearing serial Nos. 396870, E58118, 008847, 009366, 402401, 398368 kept under the joint control and in joint occupation without any valid document and authorization from the competent authority at the vessel "M.V.Seaman Guard Ohio" while anchoring in the territorial waters of India and when intercepted by Indian Coast Guard officials on 12.10.2013 at 03.30 hours. Further, they wilfully failed to make declaration of the joint possession of such firearms to the concerned Authorities, as per sections 35 and 36 of the Arms Act and in violation of the Director General of Shipping Circular NT/ISPS/Circular No.1 of 2011, and there by A1 to A37 have committed offences in contravention of Section 7 and section 35 of the Arms Act, 1959, punishable under section 25 (1A) of The Arms Act, 1959 since A1 and A2 are liable to be prosecuted for the said offence as they were responsible for the control over the possession of such prohibited firearms and the administration of "M.V.Seaman Guard Ohio" vessel and their employees, in which, these firearms were knowingly and dishonestly, allowed to be kept at the vessel by them without any authorization from the Competent Authority. (xiv) The accused A1, A2, A3 and A4 were in the physical, constructive and joint possession of 29 non prohibited firearms, 5682 ammunition and 102 magazines in the vessel without any licence issued in accordance with the provisions of The Arms Act, 1959 or any other valid document for such possession along with A5 to A37, the other occupants of the said vessel, in contravention of Section 3, punishable under Section 25 (1B) (a) r/w section 35 of the Arms Act, 1959 and thereby A1 and A2, who were having direct control over such firearms and A3 to A37, who were having joint control and constructive possession of such firearms, have committed an offence punishable under Section 25 (1B) (a) of The Arms Act, 1959, as they have contravened, section 3 of the Arms Act, 1959. (xv) The accused A1, A2, A3 and A4 were in the physical, constructive and joint possession of 29 firearms, 5682 ammunition and 102 magazines at the said vessel along with A5 to A37, when it was in territorial waters of India and anchored there till its interception by Indian Coast Guard on 12.10.2013, without any valid licence issued in accordance with the provisions of The Arms Act, 1959 or any other valid document as narrated in charge II and III, for such possession and thereby, A1 to A37 have committed an offence in contravention of the Rule 30 of The Arms Rules, 1962 and under sections 10 and 35 of The Arms Act, 1959 punishable under section 25 (1B) (f) of The Arms Act, 1959. (xvi) The commission of the said offences committed by accused A1, A2, A3 and A4 who were in the physical, constructive and joint possession of 6 prohibited firearms and 29 ordinary firearms, 5682 ammunition and 102 magazines at the said vessel, when it was in the territorial waters of India and anchored there as narrated in charge IV, without any license or authorization issued in accordance with the provisions of the Arms Act, 1959 or any other valid documents for such possession along with the accused A5 to A37, who were the employees and occupants of the said vessel "M.V.Seaman Guard Ohio", wilfully failed to inform the possession of such arms and ammunition by them to the officer of the nearest Police Station and thus A1 to A37 have committed an offence by contravening the provisions of section 36 (2) of The Arms Act, 1959, punishable under section 30 of The Arms Act, 1959. (xvii) The accused A3, A5, A6 and A7, who were employed as crew in the utility vessel "M.V.Seaman Guard Ohio" unauthorised and illegally purchased about 2,000 litres of high Speed Diesel on the advice of A1/Advanfort Company and A2, its Operations Director, on the night of 11.10.2013, when the vessel was in the territorial waters of India and anchored there, from the unauthorized persons/accused A37 to A45 at the instigation, facilitation and directions of A1/Advanfort Company represented by its Operations Director Mohamed Frajallah and A2 Mohamed Frajallah, the Company's Operations Director at U.S.A and thereby, A1, A2, A3, A5, A6 and A7 have committed an offence by contravening the provisions of the Order 2 (e) (v) of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices), Order 1998 punishable under section 7(1) (a)(ii) of Essential Commodities Act, 1955. (xviii) The accused A38 to A45 did their best in one way or other, illegally and unauthorizedly supplied about 2,000 litres of high speed diesel to the vessel "M.V.Seaman Guard Ohio" and sold the same to the vessel as narrated in charge VI with assistance of specifically A41, the Manager of A38, who received Rs. 10,00,000/- through HDFC Bank transactions from A43 of Chennai, to whom an amount of Rs. 20,00,000/- (40476 US $) was credited in the HDFC Bank Account, Chennai in Account No.50200000105782 by A1 Advanfort Company, USA for the purpose of purchase and supply of diesel and provisions to the M.V.Seaman Guard Ohio Vessel. From the said amount, Rs. 10,00,000/- was credited in the bank account of A41 Account No.11041050004770 HDFC Bank, Thoothukudi, who had withdrawn Rs. 7,00,000/- on 09.10.2013 and handed over the same to his Master A38. Further A38, who in turn, purchased about 2,000 litres of diesel in 10 barrels from M.V.S.Muthuvel and Sons Petrol Bunk, Ettayapuram Road, Thoothukudi and transported the same with the assistance of A42, A44, A45 to the fishing Harbour in his 'TATA Ace' vehicle bearing Regn. No. TN 69-AH-8457, on 11.10.2013 and from there it was loaded and transported by A39 and A45 in a fishing boat owned by the father of A39 and A40 and unauthorisedly and illegally supplied to the vessel M.V.Seaman Guard Ohio on the same night on 11.10.2013, which was anchored in the territorial waters of India and thereby A38 to A45, who are directly responsible in the said clandestine act of purchase, transport and delivery of diesel to the vessel as narrated above and this A38 to A45 have committed an offence punishable under Section 7(1)(a) (ii) of the Essential Commodities Act, 1955, since they contravened the provision of Order 2 (e) (vi) of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order 1998, which is punishable as narrated above. (xix) After completion of the investigation based on spot inspection of the vessel and other places as disclosed by the accused persons during their interrogation, examination of witnesses, seizure of documents, arms and ammunition, various articles from the vessel and other places, opinion of statutory authorities on seized items, opinion of Public Prosecutor and sanction order obtained from Competent Authorities, for filing prosecution case under the Arms Act, a detailed charge sheet along with documents and other materials collected during investigation was filed by the Inspector of Police, Q branch, C.I.D against the accused on 30.12.2013, for the offences under section 120(B) IPC , 33,35 and 3 r/w 25(1-B)(a), 7 r/w 25(1-A), 10 r/w 25(1-B)(f) of The Arms Act 1959, Rule 30 of the Arms Rule 1962, 36(2) r/w 30 of the Arms Act 1959 and Order 2(e)(v)(vi) of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order 1998 and 3(2)(d) r/w 7(1)(a)(ii) of Essential Commodities Act 1955, before the Judicial Magistrate Court No. I, Thoothukudi. (xx) The case was taken on file against the accused as P.R.C No.1/2014 for the commission of offences punishable under Sections 33, 35 and 3 r/w Section 25(1B)(a), Section 7 r/w 25 (1-A), Section 10 r/w Section 25 (1-B) (f) of the Arms Act, 1959 and Rule 30 of the Arms Rules, 1962, Section 36(2) read with section 30 of the Arms Act and Section 3(2) (d) read with Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 and order 2 (e)(v)(vi) of the Motor Spirit and High Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Order 1998 and Section 120-B of IPC and the Court took cognizance of the case and accordingly on 20.01.2014 issued non-bailable warrants against A1 Advanfort Company and A2 Mohamed Frajallah, Director Operations (who are the resident of USA, Washington) for their arrest and appearance in the Court in connection with the commission of above mentioned offences along with other accused named above.
(3.) However, two accused A1 and A2 are still apprehended despite issuance of non-bailable warrants against them, which remain un-executed. So far as the other accused A3 to A45 are concerned, though they were arrested on different dates, some were enlarged on bail by the trial court and remaining by the High Court on different dates on terms imposed on them. The accused persons filed a Revision before this Court in Crl.R.C.(MD) No.204 of 2014, under section 397 of Criminal Procedure Code, 1973 challenging the cognizance taken by the Judicial Magistrate No. I, Thoothukudi of the charge sheet seeking to prosecute A38 for commission of several offences detailed therein. Sofar as A3 to A37 are concerned, they filed Crl.O.P. (MD) No.6719/2014, under section 482 of the Criminal Procedure Code, 1973 wherein, they also sought quashing of the charge sheet filed seeking to prosecute them for commission of various offences, detailed above.;