These were appeals against convictions and sentences passed for offences under the Arms Act 1959. In 2013, the Indian Coast Guard received information about the vessel MV Seaman Guard Ohio carrying arms, ammunition and guards. The Indian Coast Guard Station Ship Naikidevi intercepted the vessel. On inquiry, the crew members admitted that they were carrying arms and ammunition on the vessel. The accused appealed.

Held: Appeals allowed.

The MV Seaman Guard Ohio is registered with Sierra Leone as a utility vessel. The business of the vessel is to provide a security guard to various merchant ships that pass through piracy high risk areas in the high seas. Both India and Sierra Leone are signatures of UNCLOS. The ship is entitled to the right of innocent passage under the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976 and UNCLOS. The prosecution has failed to prove that the ship is engaged in any activities prejudicial to the peace, good order, or security of the State. The burden of proving this is on the prosecution. It is proved in this case that the ship was anchored at the relevant place on account of distress for want of provisions and fuel. The ship never had an intention of visiting Indian ports, because the captain was waiting for further instructions and for receiving provisions and fuel. Hence, the finding of the trial Court that the principle of innocent passage has been breached by the accused in this case is not correct.

Even according to the prosecution, the ship was found anchored at sea and it is not alleged to have committed any of the violations enumerated in art 27.1.a-d of UNCLOS. Hence, the crew and guards of the MV Seaman Guard Ohio cannot be prosecuted for an offence under the Arms Act 1959 for possession of fire arms on board in the vessel.

The prosecution has failed to prove the fact that the MV Seaman Guard Ohio was anchored within the territorial water limits of India. This was not proved by competent witnesses. Exhibit P5, relied on by the prosecution, has no credence or relevance in the context of this case. Since the location of the ship within the territorial Indian water limits, as contended by the prosecution, is not proved in this case, the criminal prosecution is not correct.

[See also Vijay v State of India (CMI195) and The State v Vijay (CMI192).]