ARIJIT BANERJEE,J. - (1.) This is an application under section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India for quashing of the proceeding of Hut Bay Police Station Case No. 37 of 2016 dated 1 May, 2016 under Sections 304/282/34 of the Indian Penal Code, 1860 (corresponding to GR Case No. 607 of 2016) and Charge-sheet No. 67 of 2017 dated 27 August, 2017 under Sections 304/282/336/34 of the Indian Penal Code, as against the petitioner, currently pending before the Chief Judicial Magistrate, Port Blair, Andaman and Nicobar Islands.
(2.) The case arises out of disappearance of a Motor Sailing Vessel namely MSV Our Lady of Vailankanne (in short 'the said vessel') in mid-December, 2014. The said vessel had sailed from Hut Bay in the morning of 15 December, 2014. She was expected to reach Car Nicobar around 23:00 hours on the same date. However, the vessel never arrived at the destination port. Coordinated search and rescue operations did not yield any result. The vessel or its wreckage could not be traced. There were seven crew members on board the said vessel. The crew members have also been missing since 15 December, 2014.
(3.) The charge-sheet, in so far as the same concerns the petitioner, reads as follows:- "He was posted in Mercantile Marine Department (MMD) at Port Blair as surveyor Incharge since 03.06.2013 and he was the Head of the Office of MMD, Port Blair. Being Surveyor Incharge, his duties and responsibilities are to carry out the annual inspection of vessels and to send reports to the Principal Officer, MMD Kolkata for issuance of Survey Certificates. He inspects the vessels as per the check list of various categories that includes Sailing Vessels, Passenger Vessels, Cargo Vessels, Mechanized Sailing Vessels etc. The inspection report is prepared in the prescribed format SV (Annexure A) and SV (Annexure B) as per the DG Shipping NT Branch Circular No. 33-NT (8)/2010 dated 01/11/2010. Annexure A relates to all equipments on board the vessel and Annexure B relates to hull's general inspection including engine and associated machineries. In accordance with the request letter No. SSSILPL/MMSD/176/14-15 dated 06/11/14 submitted by Shri. K. S. Babu, Ex-Manager, Sakthi Shipping Services India Pvt. Ltd., Junglighat, Port Blair, Shri Ubaidu Rehman conducted the inspection of the vessel MSV Our Lady of Vellankannie in presence of Shri K. S. Babu. It was revealed from the Visit Report of Shri Ubaidu Rehman, Surveyor Incharge, MMD, the vessel MSV Our Lady of Vellankannie was inspected on 20/11/14 and 26/11/14 at Junglighat Jetty and on 01/12/14 and 02/12/14 at Haddo Jetty and the report was duly signed by him and Shri K. S. Babu, the then Manager of the firm. As per norms, after completion of inspection, Mr. Ubaidu Rehman, Surveyor Incharge recommended the Principal Officer, MMD, Kolkata for consideration of issue of "Certificate of Inspection of a sailing vessel" for the vessel MSV Our Lady of Vellankannie, for a period of three years i.e. till 19/11/2017, vide his letter No. PB/2(184)/2013/1192 dated 03/12/14. It is quite strange to see that, his report was silent about the non-fitment of NAVTEX (Navigational Telex), Mobile Station Licence, EPIRB (Emergency Positions Indicating Radio Beacon, SART (Search and Rescue Transponder), SSAS (Ship Security Alert System) despite the fact that in the requisition letter vide No. SSILPL/MMSD/176/14-15 dated 06/11/2014 for the firm, M/s. Sakthi Shipping Services had requested for time to submit the exemption from the previous owner of the vessel. In that scenario, the undue haste in recommending for issuance of Survey Certificate of the vessel without the fitment of mandatory live saving and rescue equipments shows the connivance of Shri Ubaidu Rehman with the firm. According to the said recommendations of Shri Ubaidu Rehman, the Principal Officer, Mercantile Marine Department, Kolkata issued a Certificate of Inspection of a Sailing Vessel vide No. 03/2014 dated 05/12/2014. Further, the Principal Officer, MMD, Kolkata had issued revised Certificate of Inspection of a Sailing Vessel to MSV Our Lady of Vellankannie vide No. 03/2014 dated 02/03/2015 being correction in the name of the Tindal in the earlier certificate. During the course of annual survey of the above vessel, Shri Ubaidu Rehman, Surveyor did ensure the fitment of mandatory safety and security equipments i.e. DAT (Distress Alert Transmitter) and NAVTEX (Navigational Telex) in the vessel and cleared the survey, which could have been pivotal in saving 07 precious lives at high seas. Distress Alert Transmitter (DAT) is used to generate distress alert message in case of emergency and the same will transmit the exact location of the vessel in the sea so as to conduct search and rescue for the vessel in the least possible time. Similarly, Navigational Telex (NAVTEX) is used to get information on weather forecast from time to time onboard the vessel during the course of journey at sea thereby immensely helping in the navigation of the vessel. As per the DG Shipping Letter No. 11-NT(21)/2009 dated 17/10/2014, the fitment of DAT is mandatory in the Mechanized Sailing Vessels (MSVs) and no exemption to this effect has been issued by the DG Shipping. These aspects have been clarified from DG Shipping, Mumbai who in turn informed vide Letter No. 11-NT(21) 2009-i dated 19/08/16 that fitment of DAT onboard the MSVs plying in Andaman and Nicobar sea waters is compulsory since 01/12/2011 and the matter was already communicated to all the Principal Officers and MMDs. They also informed that NAVTEX is a compulsory equipment which is to be fitted in all the vessels which are more than 300 GT (Gross Tonnage) vide NT Branch Circular No. 2 of 2011 dated 16/09/2011 and the Gross Tonnage of the ill fated vessel MSV Our Lady of Vellankannie was 338.78 Tons. Due to absence of DAT, the vessel was in a position to pass the distress signal on high seas, so as to enable the rescuers to save the precious lives of seven crew members onboard the vessel. Shri Ubaidu Rehman admitted in his statement that during the final inspection of MSV Our Lady of Vellankannie, it was equipped with VHF, Walkie Talkies, Distress Signals (Rocket parachute, hand flares and buoyant smoke float) and the range of VHF fitted on board the vessel was 5 to 6 nautical miles in fair weather and in rough weather it may be less. Apart from the above, no other safety/communication equipment was fitted. Hence, fitment of HF Set (High Frequency) and Safety equipments which are highly essential for the purpose of communication in the MSVs which undertake sailing all over Andaman and Nicobar Islands was necessary. His act of concluding the survey and recommending for the issue of Survey Certificate to the vessel MSV Our Lady of Vellankannie without necessary onboard lifesaving distress alert fitments, in connivance with Shri J. Sasi Kumar the Managing Director of the firm and its manager Shri K. S. Babu, has led to the loss of 07 precious lives at high seas.";