On 12 October 2013 the Seaman Guard Ohio (the vessel) admitted to being in possession of firearms when questioned by the Indian Coast Guard. At the time, the vessel was anchored at latitude 08 52' North and longitude 078 26.7' East which was, according to the prosecution, within Indian territorial waters (a fact disputed by the accused).

The vessel was essentially performing the function of a floating arms and sentries facility, embarking arms and sentries on board client vessels according to a schedule, in an effort to counter the Somalian piracy threat. The vessel had come to the position described in order to receive supplies. The ship took on 1.5 kl fuel in 10 drums from a fishing boat on 11 October 2013.

The master, crew, owner of the vessel, security guards, and a number of other people involved in the operation to provide fuel to the vessel, as well as those involved in a previous unsuccessful attempt to provide food to the vessel (on 10 and 11 October 2013) were charged:

(a) for offences under the Arms Act 1959, for being in possession of prohibited firearms without licence within Indian territorial waters;

(b) for allegedly illegally supplying foodstuffs and fuel to the ship in violation of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order 1998, punishable under s 7 of the Essential Commodities Act 1955.

Counsel for the accused submitted, among other things, that:

(1) the vessel was properly registered in Sierra Leone and was not engaged in any illegal activity in Indian waters;

(2) the vessel was not in fact within Indian territorial waters;

(3) section 45 of the Arms Act clearly states that the Act does not apply to arms and ammunition on any seagoing vessel;

(4) the concept of innocent passage is recognised by s 4 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976; and

(5) the vessel was entitled to protection and the right of innocent passage recognised by arts18 and 19 of UNCLOS.

Art 17 of UNCLOS provides: 'Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.'

Art 18.1 of UNCLOS provides: 'Passage means navigation through the territorial sea for the purpose of (a) traversing that sea without entering internal waters or calling at a roadstead of port facility outside internal waters... (2) Passage shall be continuous and expeditious. However, Passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeur or distress ...'

Art 19 UNCLOS provides: 'Passage is innocent so long as it is not prejudicial to the peace, good order of security of the coastal State....'

The prosecution reminded the Court that the power of quashing criminal proceedings should be exercised very sparingly. The Court should only use its inherent powers to quash proceedings in a case where the complaint does not disclose an offence or is frivolous, vexatious or oppressive.

Held: Prakash J accepted that the vessel was a ship registered in Sierra Leone and was in the anti-piracy business.

The Indian penal code does not extend to ships not registered in India, even if found within Indian waters. This is on the basis that the concept of 'a flag ship being a floating island of a flag state' is a recognised principle of international maritime law (although not an absolutely inviolable principle).

Having reminded the parties that India was a signatory to UNCLOS 1982 and was therefore obligated to respect its provisions, the Court held that art 27 of UNCLOS recognised the 'floating island theory' and provided that the criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea save in specified circumstances (which did not apply).

In consequence, the provisions of the Arms Act could not be extended to those on board the vessel. Accordingly, the crew and guards of the Seaman Guard Ohio should not be prosecuted for an offence of simply possessing prohibited arms on board the vessel.

As to the concept of 'innocent passage', Prakash J held that on the facts of the present case, the accused had not violated the peace, good order or security of India. Further, the Judge held that the vessel had anchored where it did on account of distress and for want of provisions.

The court had regard to how one of the accused, Selvan, had carried 20 kg of mutton, 60 kg of fish, 200 pieces of chicken, vegetables and fruit juice in his fishing boat in search of the vessel, but had to return to shore as he was not able to locate the ship. For this aborted attempt, Selvan was charged with conspiracy for keeping prohibited arms on board a ship along with the other accused. Prakash J found this 'startling', and held that it undoubtedly pricked his judicial conscience.

Thus the Court held that the anchoring of the vessel within Indian territorial waters was out of necessity and the vessel's actions constituted 'innocent passage' within the meaning of s 4(1) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act 1976, and arts 18 and 19 of UNCLOS. In consequence, the crew and security guards should not be prosecuted for offences under the Arms Act (and the fishers should not be prosecuted for abetting the crew and security guards).

In the further alternative, s 45(a) of the Arms Act also prevented the crew and guards from being prosecuted.

As for Vijay, the businessman who agreed to arrange the supply of fuel and food, the Court held that he too should not be prosecuted under the Arms Act. However, the Court held that he was liable to be prosecuted for violating Control Order 2005, pursuant to s 3(ii)(d) read with s 7(1)(a)(ii) of the Essential Commodities Act 1955, and the master of the vessel was liable to be prosecuted for abetting Vijay in this.

[See also Dudnik v Inspector of Police (CMI1478).]