TAWEE ATHOKI TAWEE Vs. STATE

JUDGEMENT

(1.) This appeal under Section 374 read with Section 375 of the Criminal Procedure Code is directed against order of conviction dated 8th March, 2011 and order of sentence dated 10th March, 2011 passed by the learned Additional Sessions Judge, Andaman & Nicobar Islands at Port Blair in Sessions Trial No.10 of 2011.

(2.) It is the case of the appellant that he along with other 12 accused persons faced trial in the said case under Section 3/7/10/14/15(c) MZI and under Section 14A of Foreigners Act and also under Section 50/51 of Wild Life Protection Act, 1972. On 8th March, 2011 when the case was fixed for framing of charges, learned Court decided to read out the charges through a Burmese interpreter. Learned counsel for the appellant-accused neither knew Burmese language nor has any knowledge of Thai language and that there was no occasion for them to submit before court that co-accused Lekhit knew both Burmese language and Thai language or that Lekhit can interpret in Thai language to the present appellant and two others who were accused persons of Thailand.

(3.) Learned advocate for the present appellant-accused never submitted that present appellant pleaded guilty as learned counsel had no means of communication with accused persons directly. Learned counsel for the appellant could not also follow as to how the Court held that present appellant pleaded guilty when the charges were not stated to the appellant in Thai language and no interpreter of Thai language was present in Court. Only after passing of sentence on 10th March, 2011 the learned Counsel of the appellant-accused was able to contact his relation namely Panom Khomcho and later on said Panom Khomcho and one member of Thai Council namely Arun Roy Chowdhuy arrived at Port Blair in May 2011 and thereafter there was interaction between appellantaccused and his learned counsel through Arun Roy Chowdhury who knew English language and learned counsel learnt that on 8th March, 2011 the appellant could not understand anything what coaccused Lekhit was speaking to him and that though appellant repeatedly asked Lekhit to speak in Thai but Lekhit was continuously speaking something which was not understood by the appellant and learned trial court convicted and sentenced the accused on the alleged plea of guilt of accused, though in reality appellant-accused did not understand the contents of the charges. The conviction and sentence were liable to be set aside. Mrs. Anjili Nag has submitted that admittedly present appellant being a Thai personnel and knowing only Thai language faced trial with other 12 accused persons most of whom are Burmese and that on 8th March, 2011, the date fixed for framing of charges, one Burmese interpreter was present in court for interpreting the contents of charges in Burmese language. According to her, learned court observed that Lekhit, another Thai accused knew Burmese and that learned counsel for the appellant did not submit before the learned court that Lekhit knew Burmese language or that Lekhit would be able to interpret said charges to be read over in Burmese language to this appellant in Thai language. According to Mrs. Nag, learned trial court passed the order of conviction with the assumption that Lekhit knew Burmese language or that Lekhit was able to understand the contents of charges read over in Burmese language and/or able to interpret the same to this appellant in Thai language or that appellant pleaded guilty after truly knowing the contents of the charges. According to Mrs. Nag, as the recording of plea of guilt of this appellant was based on the assumption that appellant-accused understood the contents of the charges though in reality he could not understand the charges and hence the conviction on the alleged plea of guilt of this appellant and subsequent sentence should be set aside. Mrs. Nag, learned counsel for the appellant has further submitted that as per chargesheet, charges were leveled against the present appellant under Section 3/7/10/14/15(c) MZI Act, 1981 read with Section 14 A of Foreigners Act, 1946 and Section 50/51 Wild Life Protection Act, 1972. According to the learned counsel though there was an allegation of entering into the Maritime Zone of India with the ship by the present appellant accused being Captain of the ship without any legal authority and the charges were liable to be framed on that score under Section 3 read with Section 10(b) of Maritime Zone of India (Regulation of Fishing by Foreign Vessels), Act, 1981 and under Section 7 read with Section 14 of the said Act of 1981, but the learned trial court wrongly framed charges under Section 3 read with Section 10(a) of the said Act as well as under Section 7 read with 10(b) of the said Act of 1981. It is further submitted that under Section 10(b) of said Act, maximum prescribed punishment is a fine not exceeding Rs.10 lakhs and under Section 14 of the said Act, the maximum punishment was a fine not exceeding Rs. 5 lakhs. According to learned counsel as the learned trial court erroneously framed charges under Section 10(a) of said Act in place of 10(b) of said Act, he wrongly imposed sentence of one year and Rs. 10 lakhs I.D one year rigorous imprisonment though in reality the maximum punishment which could have been prescribed under Section 10(b) is only Rs. 10 lakhs and no substantive sentence. It is further submitted that likewise, learned trial court imposed a fine of Rs.7 lakhs I.D. one year rigorous imprisonment for committing offence under Section 7 read with Section 10(b) of said Act of 1981, though, in reality, for committing offence under Section 7 of said Act, the Penal Section was 14 authorizing a maximum fine of Rs.5 lakhs. According to the learned counsel of the appellant on these two scores the learned trial court committed gross mistake and that conviction should be set aside and/or the sentence imposed should be curtailed down accordingly. However, learned counsel for the appellant did not make any submission regarding sentence imposed in respect of other three charges namely, 15(c) of MZI Act 1981, 14(A) of Foreigners Act and Section 50 read with Section 51(1) of the Wild Life Protection Act, 1972.