[Cites 15, Cited by 0]
Kerala High Court
Hasian Won Hsiung vs State Of Kerala on 20 January, 2026
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Crl.R.P No.3056-2007 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
TUESDAY, THE 20TH DAY OF JANUARY 2026 / 30TH POUSHA, 1947
CRL.REV.PET NO. 3056 OF 2007
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1167 OF 2002
OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,ERNAKULAM
REVISION PETITIONER/S:
1 HASIAN WON HSIUNG
THOUSHONG, THAILAND.
2 NIKEQIN SO. NI DE SHENG
LIOW NING, CHINA.
3 ZHANG WAN TANG SO. ZHANG CHENEY YIE
CHINA.
4 CHANG SHEN SO. SHAN YOUNG PENG
CHINA.
5 QING SO. LI MING YOU
LIYUAN HUA GUN YANG, CHINA.
6 GAO YUAN JIN
S/O. GAO WEN YOU SHANGSHI CHANG, CHINA.
7 CHI WEN TIAN
S/O. CHI LIAN HAI, CHINA.
8 LILIAN YUAN
S/O. LI SHI ZHU YONG, CHINA.
9 VICTOR ALDEA
S/O. TOE DORECO, PHILIPPINES.
10 GESARPALERMO
S/O. CEASARPALERMO SR, PHILIPPINES.
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Crl.R.P No.3056-2007 2
11 RANDOLF PADERINAL
S/O. GULLERMO, PHILIPPINES.
12 W.S. FERNANDO
S/O. W. VINCENT FERNANDO, SRI LANKA.
13 K.G. NESANTH FRANCIS
S/O. K.G. FRANCIS, SRI LANKA.
14 C.E. FEMANDO
S/O. CHRISTOPHER FERNANDO, SRI LANKA.
15 IMANUDEEN
S/O. SAID, INDONESIA.
16 WANTORO
S/O. NA SORI, INDONESIA.
BY ADVS.
SRI.MATHEWS J.NEDUMPARA
SRI.VADAKARA V.V.N.MENON
RESPONDENT/S:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 20.01.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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Crl.R.P No.3056-2007 3
ORDER
Aggrieved by the order dated 20.06.2007 in C.M.P No.451/2007
in C.C No.1167/2002 of the Judicial First Class Magistrate Court-I,
Ernakulam, declining the request of accused Nos.1 to 16 in the
aforesaid case for discharge from the criminal prosecution, the
aforesaid accused have filed this revision under Section 397 Cr.P.C.
2. The prosecution case is that on 20.04.2000 at 4:30 p.m,
the petitioners, who are citizens of foreign countries, violated the
maritime limits of Indian Ocean and indulged in fishing at 06o-13.8 N
and 77o-24.6 E position in the Taiwan fishing vessel by name
Shengfung 66, and thereby committed the offence under Sections 3
and 10 of the Maritime Zones of India (Regulation of Fishing by
Foreign Vessels) Act, 1981 (for short 'MZI Act'), Section 14 of
Foreigners Act, 1946 and Section 3 of the Passport (Entry to India)
Act, 1920.
3. Earlier, the learned Magistrate had framed charges against
the petitioners for the commission of offences under Sections 3 and 10
of MZI Act, Section 14 of Foreigners Act and Section 3 of Indian
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Crl.R.P No.3056-2007 4
Passport Act. The aforesaid order was challenged by the petitioners
before this Court by filing Crl.R.P No.3063/2004. As per order dated
11.01.2007, this Court had set aside the aforesaid order of the learned
Magistrate framing charges against the petitioners and remanded the
matter for fresh disposal after giving an opportunity to the petitioners
to submit a petition stating their contentions. Accordingly, the
petitioners have filed the present petition seeking discharge.
4. In the present petition, the petitioners would contend that
none of the offences as alleged in the final report filed by the police
will stand in the facts and circumstances of the case. It is stated that
the allegations against the petitioners are hopelessly vague so that it is
impossible to discern what exactly is the accusations against them.
5. Heard the learned counsel for the petitioners and the
learned Public Prosecutor representing the State of Kerala.
6. Section 3 of the MZI Act reads as follows:
"3. Prohibition of fishing in maritime zones of India by
foreign vessels.--Subject to the provisions of this Act, no
foreign vessel shall, except under and in accordance with-- (a)
a licence granted under Section 4; or (b) a permit granted
under Section 5, by the Central Government, be used for
fishing within any maritime zone of India."
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Crl.R.P No.3056-2007 5
7. The penalty for contravention of Section 3 is provided
under Section 10 of the MZI Act. The aforesaid provision reads as
follows:
"10. Penalty for contravention of section 3.--Where any foreign
vessel is used in contravention of the provisions of section 3, the
owner or master of such vessel shall,-- (a) in a case where such
contravention takes place in any area within the territorial waters of
India, be punishable with imprisonment for a term not exceeding
three years or with fine not exceeding rupees fifteen lakhs or with
both; and (b) in a case where such contravention takes place in any
area within the exclusive economic zone of India, be punishable with
fine not exceeding rupees ten lakhs."
8. It is clear from Section 10 of the MZI Act that the aforesaid
penal provision is applicable only against the owner or the master of
the vessel which is said to have violated the territorial waters or
exclusive economic zone of India. That being so, the petitioners 2 to
16, who are admittedly the workers of the vessel involved in this case,
cannot be fastened with criminal liability under the aforesaid provision
of law.
9. Coming to the criminal liability of the first accused, who is
said to be the Captain of the aforesaid ship, it has to be stated that the
prosecution records are hopelessly silent as to whether the alleged
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Crl.R.P No.3056-2007 6
violation committed by the said ship was within the territorial waters of
India or within the exclusive economic zone of India.
10. As per Section 3(2) of the Territorial Waters, Continental
Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976,
the limit of territorial waters is the line, every point of which is at a
distance of 12 nautical miles from the nearest point of the appropriate
base line. It is not possible to decipher from the final report and
accompanying records that the first petitioner resorted to violation by
leading his ship into any point at a distance of 12 nautical miles from
the nearest point of appropriate base line of Indian coast.
11. Going by Section 7 of the Territorial Waters, Continental
Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976,
exclusive economic zone is an area beyond and adjacent to the
territorial waters, and the limit of such zone is 200 nautical miles from
the base line referred to in Section 3(2) of the said Act. As far as the
present case is concerned, there is nothing stated in the prosecution
records that the allegation against the petitioners pertains to fishing in
a foreign vessel within the distance of 200 nautical miles from the base
line. That being so, it is not possible to fasten the petitioners with the
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Crl.R.P No.3056-2007 7
criminal liability for the commission of the offence under Sections 3
and 10 of MZI Act.
Section 14 of the Foreigners Act reads as follows:
"14. Penalty for contravention of provisions of the Act, etc.-
Whoever- (a) remains in any area in India for a period exceeding the
period for which the visa was issued to him; (b) does any act in
violation of the conditions of the valid visa issued to him for his entry
and stay in India or any part thereunder; (c) contravenes the
provisions of this Act or of any order made thereunder or any
direction given in pursuance of this Act or such order for which no
specific punishment is provided under this Act, shall be punished with
imprisonment for a term which may extend to five years and shall
also be liable to fine; and if he has entered into a bond in pursuance
of clause (f) of sub-section (2) of section 3, his bond shall be
forfeited, and any person bound thereby shall pay the penalty thereof
or show cause to the satisfaction of the convicting Court why such
penalty should not be paid by him. Explanation.-For the purposes of
this section, the expression "visa" shall have the same meaning as
assigned to it under the Passport (Entry into India) Rules, 1950 made
under the Passport (Entry into India) Act, 1920 (34 of 1920)."
12. For the above penal provision to be invoked, it is
incumbent upon the prosecution to show that the foreigner, against
whom the proceedings are initiated, remained in India or entered or
stayed in any part of India in contravention of the provisions of the
said Act or in violation of the terms and conditions of the visa issued to
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Crl.R.P No.3056-2007 8
him for his entry and stay in India. Thus, the primary requirement to
be fulfilled for initiating prosecution in connection with the aforesaid
offence is to establish that the offender, in violation of the relevant law,
had entered, remained or stayed in an area where the sovereignty of
India extends. As per Section 3(1) of the Territorial Waters, Continental
Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976,
the sovereignty of India extends and has always extended to the
territorial waters of India and to the seabed and subsoil underlying,
and airspace over, such waters. As already stated above, the limit of
territorial waters as per sub Section 2 of Section 3 of the above Act is
within a distance of 12 nautical miles from the nearest point of the
appropriate baseline. In the case on hand, there is absolutely no
indication anywhere in the prosecution records that the petitioners
were found involved in fishing with the use of a ship within a distance
of 12 nautical miles from the nearest point of the appropriate baseline.
In that view of the matter, it cannot be said that the final report and
the relevant records relied on by the prosecution would disclose the
commission of an offence under Section 14 of the Foreigners Act, 1946
by the petitioners.
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Crl.R.P No.3056-2007 9
13. As per Section 3 of the Passport (Entry into India) Act,
1920, the Central Government may make rules requiring that persons
entering into India shall be in possession of passports, and for all
matters ancillary or incidental to that purpose. Sub Section 3 of the
above Section says that the rules made under the said Section may
provide that any contravention thereof or of any order issued under
the authority of any such rule shall be punishable with imprisonment
for a term which may extend to five years, or with fine which may
extend to fifty thousand rupees, or with both. As per Rule 3 of the
Passport (Entry into India) Rules, 1950, no person proceeding from
any places outside India shall enter or attempt to enter India by water,
land or air unless he is in possession of a valid passport conformed to
the conditions prescribed in Rule 5. It is also provided thereunder that
no person shall enter or attempt to enter India by water, land or air
except through such port (including an airport) or other places as may
be specified in this behalf by Central Government, and ports or other
places specified under Clause (a) of sub paragraph (1) of paragraph
No.3 of Foreigners Order, 1948. For the applicability of the above
Section also, the primary requirement to be fulfilled by the prosecution
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Crl.R.P No.3056-2007 10
is to bring in evidence showing the entry of the offender to India in
violation of the relevant law. As already stated above, the records
relied on by the prosecution are not capable of showing that the
petitioners entered into the territorial waters of India within a distance
of 12 nautical miles from the nearest point of the appropriate baseline,
where the sovereignty of India extends. Therefore, the charge against
the petitioners in connection with the commission of offence under
Section 3 of the Passport (Entry into India) Act, 1920 (Act 34 of 1920),
is also not brought out from the records relied on by the prosecution.
14. As a conclusion to the above discussion, I find that the final
report and the accompanying records relied on by the prosecution in
C.C No.1167/2002 on the files of the Judicial First Class Magistrate
Court-I, Ernakulam are not capable of bringing home the offences
under Sections 3 and 10 of the MZI Act, 1981, Section 14 of the
Foreigners Act, 1946, or Section 3 of the Passport (Entry into India)
Act, 1920. Therefore, the plea of discharge of the petitioners from the
aforesaid prosecution, deserves to be allowed.
In the result, the revision petition stands allowed. The order
dated 20.06.2007 of the Judicial First Class Magistrate Court-I,
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Crl.R.P No.3056-2007 11
Ernakulam in C.M.P No.451/2007 in C.C No.1167/2002, is hereby set
aside. The petitioners are discharged from the criminal prosecution
launched against them in the aforesaid case.
(Sd/-)
G. GIRISH, JUDGE
jsr
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Crl.R.P No.3056-2007 12
APPENDIX OF CRL.REV.PET NO. 3056 OF 2007
PETITIONER ANNEXURES
Annexure 1 COPY OF THE CHARGE SHEET.
Annexure 2 COPY OF THE ORDER OF THE THIS COURT IN
Annexure 3 CERTIFIED COPY OF THE ORDER DTD...CC
NO.1167/02 ON THE FILE OF JFMC-I, ERNAKULAM.
