Orissa High Court
Asia Pacific Shipping Company vs State Of Odisha Represented Through on 29 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1475 of 2025
Asia Pacific Shipping Company
Limited (Owner) represented
through its Authorized Legal
representative Mr. Arvind Kumar. ..... Petitioner
Mr. B.P. Bhatt, Advocate
Mr. Ravi Shankar Samal, Advocate
-versus-
State of Odisha represented through
the Superintendent Customs,
(Preventive) Commissionarate,
Bhubaneswar ..... Opp. Party
Mr. P.K. Parhi, D.S.G.I.
with Mr. D.S. Bhokta, C.G.C.
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
ORDER
29.04.2025
Order No. (Through hybrid Mode)
05.
1. This CRLMC has been filed with the following prayer:
"In view of the above facts and circumstances this
Hon'ble Court may kindly be allow the CRLMC
Application and allow the petitioner to comply the
condition laid by the Learned Court below in condition
No. III, Page No. 17 of the Order dated. 12.02.2024
under Annexure-1 by directing the Opp. Parties to
allow the petitioner to comply the order of the learned
Court below as soon as possible for the greater interest
of Justice.
Or passed any order or orders as your Lordship
thinks fit and proper.
And for the said act of your Kindness, the
petitioner as in duty bound shall ever pray."
2. Annexure-1 to the CRLMC is order dated 12.02.2024 passed
in Criminal Misc. Case No. 02 of 2024 by the learned Additional
District and Sessions Judge, Kujang.
The operative portion of the order dated 12.02.2024 is
extracted below:
"(i) The petitioner is directed to file bank guarantee of
Rs. 10,00,00,000/- (ten crores) executed in any
nationalised bank within the jurisdiction this court.
(ii) Further, the petitioner file an indemnity bond to the
tune of the valuation of the vessel Rs.100,00,00,000
(rupees hundred crores) and one solvent surety for the
like amount.
(iii) The petitioner is to file four hard copies of self
attested photographs taken from all angles of the
seized vessel. The digital photographs and a video clip
of not more than one minute duration of the vessel
from all angles, stored in a pen-drive is also to be filed.
The date on which data has been stored or copies to
the pen-drive is to be furnished too. The photos and
video stored in the pen-drive should be clearly visible
and the photos should also reveal the International
Maritime Organization (IMO) number of the vessel
clearly. The images should be in JPG/JPEG/PNG
format and the video should be of MPS/MOV/AVI etc.
format. The digital photographs and video clip be
encrypted with a hash tag with date and time stamp
with hash value. The digital photograph and video clip
should carry date and time stamp with regard to their
origin. Such photos and video clips are to be prepared
in the presence of the both the parties. The cost of
entire exercise is to be borne by the petitioner.
(iv) the aforesaid direction should be complied under
the supervision of dealing assistant, Sri Durga Prasad
Panda, Head Clerk who is also directed to supervise
the compliance of above direction and to keep the
encrypted copy with calculating hash value and the
above compliance should be in accordance with the
SOP as fixed by the Hon'ble High Court in W.P.C.
No.34622/2021.
(v) He is not to tamper with the International Maritime
Organization (IMO) number and colour of the said
vessel and he is to keep the same in running condition.
(vi) He is not to dispose of the vessel in any manner
pending trial of the present case and he is not to utilize
the vessel in any illegal or criminal activity.
(vii) He is to file an undertaking that if ultimately it is
found that he was not entitled to receive the possession
of the seized vessel, and thereafter he is unable to
return the vessel, the value of the vessel shall be
recovered from him by enforcing the bonds and the
security taken from him.
The Investigating Officer of the case is permit
the Petitioner to take photographs and video of the
vessel. The Investigating Officer is to ensure that the
photographs and video is taken in presence of both the
parties. Issue notice to the complainant/petitioner to
remain present before the Court for necessary
compliance of the aforesaid direction.
Send a copy of this order to the Investigating
Officer of this case for information."
Condition No.III which deals with taking of photographs and
videos of the ship is relevant as the petitioner has prayed for
compliance of the condition.
CASE OF THE PETITIONER
3. The facts of the case as per the CRLMC is that the vessel M.V
DEBI was under chatter agreement with chatter DAVA and was on
Voyage from Gresik Port, Indonesia to Paradeep Port, India. The
vessel reached at Paradeep on 29.11.2023 and commenced loaded of
cargo on 30.11.2023 and was supposed to discharge at Fredericia
Port, Denmark. While loading of cargo was under process, there was
an oil leakage on crane no.3 for which the master of the vessel sent
to Chief Officer as well as the second engineer to inspect it. During
the endeavour, it was found that some strange packet were present.
Further, similar packets were also detected on crane no.2. Thereafter,
the master of the vessel immediately sent mail to the charter agent
and also informed the Govt. authorities about the incident through
mail, Thereafter, the Paradeep police station informed about the
incident to the offices of Paradeep Custom Division. Basing on the
information received from Paradeep Police station, the officers of
Paradeep Custom Division during such proceeding effected seizure
of total 22.22 k.g. of white/brown colour hard brittle substance with
pungent smell suspected to be cocaine in total 22 number of packets
all recovered from unboard vessel MV DEBI along with the packing
materials and magnet. Subsequently, on dated 22.12.2023 the vessel
MV DEBI was seized vide seizure memo dated 22.12.2023 under
Panchnama dated 22.12.2023.
4. CRLMC No. 2 of 2024, under Section 457 of Cr.P.C. was
filed by the petitioner in the Court of the learned Additional District
and Sessions Judge, Kujang and the same has been disposed of on
12.02.2024.
5. After passing of this order, the petitioner had approached the
investigation officer in Criminal Misc. Case No. 2 of 2024 arising
out of Custom Paradeep Division through representation dated
04.04.2025 which was duly accepted by the I.O., but they did not
comply with the Court's order by not permitting/allowing the
petitioner to take photographs of the ship.
6. The representation dated 04.04.2025 which has been annexed
as Annexure-3 to this CRLMC, is addressed to the Investigating
Officer in Criminal Misc. Case No. 2 of 2024 arising out of Custom
Paradeep Division, Jagatsinghpur File No.VIlI-CUS-26 (01)
DEBI/PDP/2023 corresponding to Special G.R. Case No.65 of 2023,
Custom Commissioner Paradeep and prayer has been made to permit
the petitioner to take photograph and videography and to remain
present during the photography. It has been stated in application that
(i) Mr. Arvind Kumr and (ii) Mr. Nguen Quoc Anh (Passport
No.C7061514) will accompany the I.O. or his representative.
7. In paragraph-6 of this CRLMC it has been stated as follows:-
"That it is pertinent to mention here that on Ocean
going vessel required timely maintenance including
anti corrosive painting/treatment and the petitioner
has been in brisk end of his business by loosing 20,000
U.S Dollar in a day basis and the vessel has been
seating in dock since long which may leads to blast in
engine, leakage of oil lead to marine pollution and
damaged to floura and fauna and also marine life and
further fisherman costal area may be affected
including that of fish polluting for which International
Marine Traffic shall be affected."
SUBMISSIONS
8. Mr. A.K. Bhatt, learned counsel appearing on behalf of the
petitioner submits that the insurance of the ship has been extended
till 30.04.2025 and the vessel M.V. DEBI is critically overdue for
dry-docking and maintenance, and her continued detention exposes
grave dangers. But there is no pleading to that effect in the CRLMC
nor any documents to that effect have been filed along with the
CRLMC.
9. Today a chronological summery of events in the matter of
vessel M.V. DEBI in the form of a note has been filed but most of
the events mentioned in the note are not reflected in the CRLMC
filed in this Court.
10 A written note of submission has also been filed today on
behalf of the applicant Vessel owner where there is a reference to a
number of decisions of the Supreme Court and two and three lines of
these decisions have been quoted in the note, but none of these
decisions have been furnished/submitted for perusal of this Court.
The written note of submissions as well as the note of chronological
summary of events in the matter of Vessel M.V. DEBI filed in
Court, are taken on record.
11. In the written note of submission the following prayer has
been made made which again is not the prayer in this CRLMC:-
"FINAL PRAYER
In view of the above facts, principles of law,
humanitarian considerations, and grave risks to
environment and public safety, the Applicant humbly
prays that this Hon'ble Court may graciously be
pleased to;
1. Direct the Customs Authorities to forthwith grant
permission for photography and videography of the
vessel M.V. DEBI in compliance with the Hon'bie
Court's bail order dated 12.02.2024.
2. Record and accept the Applicant's unconditional
undertaking to comply with any future orders of the
Hon'bie Supreme Court;
3. Direct issuance of necessary No Objection
Certificate (NOC) and Port Clearance (PC) within 24
hours of compliance;
4. Direct the release of vessel M.V. DEBI immediately
upon fulfillment of the bail conditions;
5. Pass such other and further orders as may be
deemed just and proper in the facts and circumstances
of the case and in the interest of justice, public safety,
and environmental protection.
AND FOR THIS ACT OF KINDNESS, THE
APPLICANT AS IN DUTY BOUND SHALL EVER
PRAY."
12. Mr. P.K. Parhi, learned Deputy Solicitor General of India for
the Union of India does not object to the prayer of the petitioner for
being granted permission to enter the port and to take photographs
and video of the Vessel, but prays for an adjournment in order to file
an objection stating that the opposite party has filed an I.A. No. 1178
of 2025 stating therein that the common judgment dated 07.03.2025
passed by this Court has been challenged in the Supreme Court and
the application has been registered as SLP Diary No. 20188 of 2025.
He submits that as the matter is subjudice before the Hon'ble
Supreme Court, the CRLMC may be adjourned.
Mr. D.R. Bhokta, learned Central Government Counsel is
present in Court and produces the latest status report in Diary No.
20188 of 2025 and submits that all defects in the case has been
removed, but fairly admits the SLP has not yet been registered nor
the matter listed before the Supreme Court.
ANALYSIS AND CONCLUSION
13. On 21.04.2025 when the CRLMC was listed, the State of
Odisha had been arrayed as sole opposite party in this CRLMC, Mr.
S.J. Mohanty, learned Additional Standing Counsel had brought to
the notice of this Court about the common judgment passed on
07.03.2025 by this Court in CRLMC No.441 of 2024 filed by the
petitioner and CRLREV No. 93 of 2024 filed by the opposite party.
The disposed of records in the two cases along with the judgment
were therefore directed to be tagged to this CRLMC. On 24.04.2025,
the CRLMC was allowed to be amended and Union of India was
impleaded as opposite party in place of State of Odisha.
14. As it has not been disclosed in the CRLMC that the petitioner
had earlier approached this Court in CRLMC No. 441 of 2024
praying for modification of order dated 12.02.2024 passed in
CRLMC No. 2 of 2024 by the learned Additional and District
Sessions Judge, Kujanga and the same order had also been
challenged by the Union of India in Criminal Revision No. 93 of
2024 and both the cases have been disposed of by common
judgment dated 07.03.2025 by a coordinate Bench of this Court. It is
apparent that the petitioner has not approached this Court which
clean hands.
15. Perused the judgment dated 07.03.2025.
16. By said judgment, this Court dismissed Criminal Revision
Petition No. 93 of 2024 as being devoid of merit but modified order
dated 12.02.2024 by issuing the following directions:-
"31. Reverting back to the financial condition
imposed in condition Nos.1 and 2, this Court finds that
the condition No.1 with regard to furnishing a Bank
Guarantee would be a harsh condition so far the
Petitioner-Shipping Company is concerned since they
are not having any bank account in India. Therefore.
the condition No.1 requires reconsideration by this
Court. Accordingly, the condition No.1 is hereby
waived. So far the condition No.2 is concerned, the
value of the vessel has been assessed on a hypothetical
basis. In other words, the real value of the vessel has
not yet been assessed by any certified valuer in the
present case. Basing upon the insurance declaration,
the value of the vessel has been arrived at Rs.100
crores. Therefore, this Court is of the view that the
same may not be the actual cost of the vessel which is
stranded at the Paradeep port at the moment. Since no
valuation report by a certified valuer could be
produced in course of the hearing of the present
application by the customs authorities, this Court is
required to take a reasonable approach in the matter,
particularly, keeping in view the factual background of
the present case and the progress made in the
investigation so far. Accordingly, the condition No.2 is
modified to the extent that instead of Rs.100 crores, the
Petitioner-Shipping Company shall now furnish an
indemnity bond to the tune of Rs.75 crores and instead
of one solvent surety for the like amount, they shall
famish two solvent sureties for the like amount.
Further, it is directed that the other conditions of order
dated 12.02.2024 shall remain intact."
17. In effect this Court has modified condition no. II to the extent
that instead of Rs.100 crores, the Petitioner-Shipping Company shall
furnish an indemnity bond to the tune of Rs.75 crores and instead of
one solvent surety for the like amount, it shall furnish two solvent
sureties for the like amount and this Court waived the direction for
furnishing a bank guarantee as the petitioner does not have any bank
account in India.
18. On account of the petitioner not mentioning about filing of the
earlier CRLMC, normally, I would have dismissed this CRLMC
with cost, but in view of the innocuous nature of the relief claimed in
this CRLMC which is to direct the opposite party to allow the
petitioner to enter the port and click photographs and videos of the
Vessel which has already been directed by the learned Additional
and District Sessions Judge, Kujanga and confirmed by this Court in
its judgment dated 07.03.2025, I allow the CRLMC and direct the
opposite party to permit the petitioner to take photographs and
videographs as directed vide condition no.III of order dated
12.02.2024, but subject to payment of cost of Rs.10,000/- (Rupees
Ten thousand only) to the Orissa High Court Bar Association
Welfare Fund in course of the day.
19. The petitioner shall be permitted by the opposite party to take
photographs and videographs of the vessel tomorrow (30.04.2025),
as receipt showing payment of cost of Rs.10,000/- has been filed in
the Court today.
The receipt be scanned and incorporated in the digital record
by the Registry.
20. Urgent certified copy of this order be granted on proper
application in course of the day.
(Savitri Ratho)
Judge
Sukanta
Signed by: SUKANTA KUMAR BEHERA
Designation: Senior Stenographer
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 29-Apr-2025 20:55:34
