JUDGMENT
1. The Officiating Chief Justice,–The petitioner preferred against the accused a complaint of theft in that the latter had removed a quantity of chanks from a portion of the bed of the sea on the Coromandel Coast, it being alleged by the petitioner that he was entitled to them as one claiming under the Raja of Ramnad and that the right to all chanks to be found in certain specified localities on the Ramnad coast inclusive of the portion in question was, from time immemorial, vested exclusively in the holders of the Ramnad Zamindari. The Head Assistant Magistrate of Ramnad, after examining some only of the witnesses cited by the petitioner, dismissed the complaint on the analogy of decisions passed with reference to charges of theft of fishes in open waters.
2. The questions which arise for determination in the present case are.
1. (a). Whether live chanks not actually seized but remaining free in their natural habitat in the bed of the sea are the subject of property?
(b). Whether a taking of them would not constitute theft even if they are the subject of property?
(c). Is ‘possession’ within the meaning of Section 379 of the Indian Penal Code predicablc in respect of them, with reference to persons entitled to them?
2. If these questions are to be answered in the affirmative, whether, in the circumstances of the present case, the complainant is in law precluded from establishing an exclusive right to such of them as exist beyond a marine league from low water-mark?
3: Whether the courts of this country have jurisdiction to try charges of theft of chanks when the removal of the chanks is from it locality outside the said marine league limit?
3. It is necessary to preface the discussion of these questions with a few general observations. Chanks are molluscs being species of the genus Turbinella. They are found on the coast of the present districts of Madura and Tinnevelly on the one side and of Ceylon on the other (Balfour’s Cyclopaedia of India, 3rd Edition, Vol. I, p. 656). They thrive in sand-beds in the seabottom, the sand being of a special nature locally called “puchimanal’ or sand breeding worms (on which the chanks feed)–Report on chank and Pearl-Fisheries by Mr. H.S. Thomas (1884) p. 16, Section 45. Such beds exist all along the abovementioned coasts in depths of 2 to 10 fathoms or thereabouts. (Balfour’s
4. Cyclopaedia, 3rd Edition, Vol. 1, p. 656,) and Dr. Thurston’s Notes on Pearl and Chank Fisheries and Marine Fauna of the Gulf of Mannar (1890) pp. 11 and 33. These beds as well as the beds of pearls, oysters (oysters unlike chanks affect rocky ground, Mr. Thomas’ Report, p. 15; Section 45), the two often lying not far from each other, are to be found at varying distances from the shore, the furthest being 20 miles, though they generally He much nearer (Dr. Thurston’s Notes, pp. 17 and 109, Encyclopaedia Britannica, 9th Edition, Vol. V, p. 364.) The beds are of different sizes, some being of very considerable extent, as for instance, the Muttuwarttu Par (5 miles off the coast of Ceylon in Dutch Bay) which is 3 miles by 1 1/2 miles (Dr. Thurston’s Notes, p. 103). The situation of the beds has been mapped out and details thereof recorded by the respective authorities, (for Madras Fisheries, see App. B. to Mr. Thomas’ Report) and the Ceylon legislature have in respect of the bods belonging to that colony passed ordinances, the earliest, so far as appears, having been enacted in 1811.
5. The chanks are not fixed to the localities they are found in, but their power of locomotion is very limited, some experiments showing that they move a foot in 1 3/4 minutes to 2i minutes (Mr. Thomas’ Report, pp. 32 and 104)being in this respect similar to pearl oysters (Mr. Thomas’ Report, p. 5, Section 11). Chanks alive are known as green chanks, while shells of dead ones, also to be found in the beds, go by the name of white chanks (Balfour’s Cyclopaedia, Vol. I, p. 656). They are fished up by divers who, with bags round their necks, dive and grope over the bottom, 20 chanks being reckoned a good haul. The divers never go beyond 12 or 13 fathoms and seldom over 9 (Mr. Thomas’ Report, p. 26, Section 85 and Mr. Emerson Tennent’s Ceylon, 5th Edition, Vol. II, p. 564).
6. Chank shells have long been used in this country for various purposes. Bracelets are made out of them and are worn largely by women in the Northern parts of India, workmen most skilled in making them being found at Dacca. Another use for them is in connection with Hindu temples and worship, the shells being considered to possess purity, while inferior shells find their use in native homes as vessels for feeding children. It may also be added that native medical men make preparations out of the shells and that the shells are sometimes buried with the bodies of opulent persons. Valampuri clianks or shells with the whirl on the right are specially prized and fetch high prices. A chank of this description was among the presents sent by one of the kings of Ceylon to Asoka in B.C. 806 (Tennent’s Ceylon, Vol. 1, p. 446). Naturally, therefore, there has been a considerable trade in chanks from very remote times and the allusion to them in the Cosmos indicopleustes and by Abu Said in his Voyages Arabes points to the existence of the trade as early as the 6th century (Balfour’s Cyclopaedia, Vol. I, p. 656.)
7. And chanks as Well as pearl-oysters while still in the beds have always been taken to be the exclusive property of the sovereign, by whom, consequently, they have been conserved; and the fishery operations connected therewith have always been carried on under state control and have formed a source of revenue to the exchequer. The Setupatis of Ranmad appear to have enjoyed both the pearl and the chank fisheries on the Ramnad coast while they were feudatory chiefs, but when they ceased to bo such, the right to pearl fisheries on the coast w;ts apparently taken away, the right to the chank fisheries alone being continued to them. It has been viewed by some that chank fishery operations tend to injure pearl oysters and this view has led to the discontinuance of chank fisheries on the Ceylon coast. Such a notion, however, has been strongly controverted and has not been acted upon with reference to the fisheries on our coast (Mr. Thomas’ Report, p. 15, Section 44). Our chank fisheries are worth to Government from four to five times as much as our pearl fisheries and may, it is said, easily be raised to half the present value of the Ceylon pearl fisheries (Mr. Thomas’ Report, p. 28, Section 91). These latter brought in to the State in a certain year towards the close of the 18th century as much as £ 140,000 though, under subsequent management, the revenue has never exceeded £ 87,000 in any one year (Encyclopaedia Bri-tannica, Vol. V, p. 364). According to Dr. Balfour the rents received annually in respect of chank fisheries by the Government of Madras was about.£ 1,000, those received by the Setupatis of Ramnad being £ 500 (Vol. I, p. 656). According to the latest information available the average revenue during the 25 years from 1876-77 to 1902-03 (not reckoning 1884-85 in which for some reason not apparent there was no fishery) derived by the Madras Government from the chank fisheries under the control of the Superintendent of Fisheries at Tuticorin amounted to Rs. 12,000 (in round numbers) the maximum derived in any one year being that of 1881-82, viz, Rs. 28,000 G.O. No. 1025, dated 6th October 1903). It may not be superfluous to note that artificial culture of pearl oysters is not deemed to be impracticable, though whether that would be remunerative has been doubted (Mr. Thomas’ Report, p. 27, Section 87).
8. With these observations, I shall now proceed to discuss the questions stated above in their order.
9. Though undoubtedly what may properly be spoken of as fishes in the open sea are feroe naturoe and do not form the subject of property until actually seized, yet I am unable to accept the argument of Mr. Sivaswamy Aiyer on behalf of the accused that chanks stand on an analogous footing. Certainly there can be no comparison between animals like fishes which roam over the wide expanse of the waters darting about with extreme rapidity and which are endowed with the power of eluding attempts to take them unaided by special contrivances and such localized slow creatures as chauks which a diver can pick up with the same ease with which he can take pebbles at the sea bottom. It seems to me that with reference to the question of property under consideration there is more analogy between chanks and pearl oysters on the one hand and on the other, the ordinary edible oyster which has formed the subject of judicial determination with reference to that question. So far as that is concerned the circumstance that “edible oysters,” borrowing the words of Mr. Thomas, “are from the time they are precipitated as spat immovably cemented for life to rock if they chance to fall on rock, or if they fall on mud lie by their weight helplessly on their heavy convex side,” while pearl oysters are not so sedentary but can move very slowly about, is immaterial. The observations of Green, C.J., in State v. Taylor 3 Dutcher 117; 72 Am. Dec. at p. 347 (decided by the Supreme Court of New Jersey) where the prisoner was convicted of theft of oysters, deserve consideration. He said “It is objected that oysters being animals feroe naturoe there can bo no property in them unless they be dead or reclaimed, or tamed, or in the actual power or possession of the claimant and that the want of such an averment is a fatal defect in the indictment * * * The principle as applied to animals fercoe naturoe is not questioned. But oysters though usually included in that description of animals do not come within the reason or operation of the rule. The owner has the same absolute property in them that he has in inanimate things or in domestic animals. Like domestic animals they continue perpetually in his occupation and without straying from his house or person; unlike animals feroe naturoe they do not require to be reclaimed or made tame by art, industry or education, nor to be confined in order to be within the immediate power of the owner. If at liberty they have neither the inclination nor the power to escape. For the purpose of the present enquiry they are obviously more nearly assimilated to tame animals than to wild, ones and. perhaps more nearly to inanimate objects than to animals of either description 3 Butcher 1.17; 72 Am. Dec. at p. 347.
10. These observations seem to mo to be substantially applicable to chanks and pearl oysters which may, therefore, with perfect propriety, be treated as standing on a par with ferae domitoe and like them the subject of absolute property. Supposing, however, they should be treated differently from feroe domitoe, there ought, having regard to the extremely limited power of locomotion possessed by these creatures, to be no hesitation in holding, as contended for by Mr. Srinivasa Aiyangar for the petitioner, that they are the subject of property propter impotentiam. As to the extent of the property, however, the result should be the same, in view of their weakness in the matter of locomotion being, unlike as in the case of the young of birds, to which reference was made in the argument, not a temporary but a permanent condition. If it would be going too far to ascribe absolute property on the said ground, they would certainly be the subject of qualified property i.e., they would belong to him on whose land they exist so long as they do not migrate therefrom and pass away elsewhere, even supposing they are likely to do so. Apart too, from this view it would be impossible to ignore the fact that for ages in this country chanks and pearl oysters have been owned and enjoyed by the sovereign as belonging by prerogative right exclusively to him, a fact from which it must, with reference to the crown and persons having similar right, be held that they, rations privilegii, are the subjects of property absolute or qualified according to the view to be taken with reference to the nature and capacity of the animals themselves. If, with reference to such considerations the animals are only the subject of qualified property, the owner of the exclusive right, can claim them of course only so long as they do not migrate beyond the limits within which the right is exercisable.
11. Turning now to branch (b) of the question under consideration, the objection that live chanks even if a subject of property are not the subject of larceny would seem to have reference to the rule of English Criminal Law thus stated in Hale’s Pleas of the. Crown. ” Larceny cannot be committed in some things whereof the owner may have a lawful property and such whereupon he may maintain an action of trespass, in respect of the baseness of their nature, as mastiffs, spaniels, grey-hounds, bloodhounds, or of some such things wild by nature yet reclaimed by art or industry as bears, foxes, ferrets, etc., or their whelps or calves, because, though reclaimed, they serve not for food but pleasure and so differ from pheasants, swans, etc. made tame which though wild by nature, serve for food.” But surely it would not be right to impute baseness within the meaning of the said rule to creatures like these in question so harmless during life and so useful after death, one description of them leaving what as already stated lends itself to so many uses in this country and the other containing what on account of their beauty and rarity have always been among the choicest objects of the jewellers’ Article If a place must be found for such members of the animal kingdom in the classification of English criminal law, they ought certainly to be treated as animals highly serviceable to man, though otherwise than as food and such serviceableness must according to the principle of the authorities be held to make them the subject of larceny, considering how the law views the case of another animal, prized not as food, the rule as to which is expressed-quaintly enough thus; ” Only of the reclaimed hawk, in respect of the nobleness of its nature and use for princes and great men, larceny may be committed” (Hale’s Pleas of the Crown, Vol. I.p. 512). However this may. be, it is scarcely necessary to say that, under our own criminal law, subject only to the exception provided for by Section 95 of the Indian Penal Code, an animal which is recognised as property is ipso facto capable of being stolen.
12. Now as to the last branch of the question I cannot see what difficulty there can be in holding that chanks and pearls oysters while still in the beds are, within the meaning of Section 379 of the Indian Penal Code, in the possession of persons who may show a title thereto. The circumstance that the subjects of His Majesty and others may navigate the waters could not preclude the predicafcility of possession in the largest sense of the term with regard to beds forming the subject of these fisheries, on the part of those entitled exclusively to carry on the fisheries. The right of such persons being admitted, it follows that so long as chanks and pearl oysters have not actually been manually taken hold of by strangers, the animals, notwithstanding their continuance in their natural habitat, must, on the principle that ” property in porsonal chattels draws after it the possession” (see State v. Taylor 72 Am. Dec. at p. 348.) be held to be in the possession of the owner and of none else. That, here, the thing owned lies buried under the waters of the sea, operates rather as a security of the owner’s possession than otherwise, as that in many ways interposes serious obstacles in the way of unobserved intrusion on the rights of the proprietors. The bed of the sea being vested in the crown, the soundness of postulating possession in the crown in regard to chanks and oysters belonging to it is too obvious to require further discussion.
13. As regards the Ramnad proprietor also, the same conclusion would follow if he has the immemorial right claimed. Without intending or seeming to introduce into this country the highly technical distinctions peculiar to the law of England connoted by such terms as common fishery, common of fishery, free fishery and several fishery one may admit that there is force in the suggestion ? made by Mr. Srinivasa Aiyangar that the alleged right of the Ramnad proprietor would not stand on a worse footing than that of a person entitled to a several fishery in England which, it has been held, is a right capable of being vindicated by possessory remedies (Holford v. Bailey 13 Q.B. 426 and Hanbury v. Jenkins (1901) 2 Ch. 401) and in favour of the contention that the dishonest removal of chanks even with reference to such a proprietor would constitute theft under the Indian Penal Code, I may cite Reg. v. Downing 11 Cox. C.C.p. 580 where a conviction for larceny was sustained by the Court of Criminal Appeal (presided over by Cockburn, C.J., Channell, B., Keating, J., Brett, J. and Cleasby, B.) under 24 and 25 Vic. C. 96, which enacted that ” whoever shall steal any oyster or oyster brood from any bed laying or fishery being the property of any other person and sufficiently marked out, shall be guilty of a felony,” the whole evidence as to the prosecutor’s right having been that for a period of 45 years he and his father had, as of right, exercised the right of fishing oysters in the bed from which the prisoner had removed them and which was situated in a tidal navigable river.
14. Apart from any statute, in State v. Taylor 72 Am. Deo. 347 referred to above, dishonest removal of oysters was held to be theft; though the removal was from a sound accessible to the public for navigation and fishing, because the oysters remained the property of the prosecutor, he having planted them in the spot wherefrom they were removed, the common law as understood in that country permitting such planting subject to the liability of the oysters being destroyed or removed if they should prove a nuisance “or interfere with the public rights of navigation and fishing. Obviously the fact that the Ramnad proprietor claims the chanks not per industriam but by immemorial privilege, referring as it does only to the source of his right, cannot affect the question of possession when once the right is allowed.
15. Before concluding my observations on the present matter, it may not be amiss to draw attention to a provision in one of the several Australian statutes passed for the protection and regulation of the pearl fisheries in Western Australia, as showing the un-mistakeable trend of legal thought on the subject. I refer to 50 Vict. No. 14, the Shark’s Bay Pearl Shell Fishery Act, 1886, Section 8 of which runs thus; “All pearls and pearl shells lying or contained within the limits of any licensed area shall, during the continuance of the license, be deemed to be the absolute property of the licensee for all purposes civil or criminal; and all and every person or persons who shall gather, collect, or remove any pearl or pearl shells within or from the limits of licensed area, without the authority of the licensee or his agent, shall be deemed guilty of larceny and shall, on summary conviction of such offence before two or more Justices of the Peace in Petty Sessions, be liable to be imprisoned for any term not exceeding two years, with or without hard labour”.
16. As to the cases of The Queen v. Revu Pothadu I.L.R. 5 M. 390 Subba Reddi v. Munshoor Ali Saheb I.L.R. 24 M. 82 Hurimoti Moddock v. Deno Nath Malo 19 Suth. W.R. (Criminal Rulings) 47 Bhusun Parui v. Denonath Banerjee 20 Suth. W.R. (Criminal Rulings) 15 Empress v. Charu Nayiah I.L.R. 2 C. 354 and Bhagiram Dome v. Abar Dome I.L.R. 15 C. 388 to which our attention was drawn on behalf of the accused, I take their ratio decidendi to be that fishes being ferae natures and the waters concerned in the particular cases having been unenclosed waters operating in no way to curtail the power of unrestricted movement and escape of the fishes, a taking of them could not amount to theft as, in the circumstances, they were not until actually caught the subject of property. These cases have no application here for the reason that live chanks are not ferae naturoe properly so called, (See the ‘observations of Westbury, L.C. in Blades v. Higgs 11 H.L.C. 621 at p. 631.) and have already been held to be at least the subject of qualified property even in their natural habitat, shell of dead chanks being of course absolute property in every sense.
17. I pass on to the next question which involves considerations of no small importance. In dealing with it, I wish before going further to say that Queen v. Keyn 2 Ex. D. 63 relied on by Mr. Sivaswamy Aiyer is distinguishable from the present case for reasons which would be best stated in the words of Mr. Justice Blatchford who delivered the judgment of the Supreme Court of the United States in Manchester v. Massachussets139 U.S. App. 257 viz., that ” the question there (in Queen v. Keyn 2 Ex. D. 63) was not as to the extent of the dominion of Great Britain over the open sea adjacent to the coast but only as to the existing jurisdiction of the Court of Admiralty in England over offences committed in the open sea and the decision had nothing to do with the right of control over fisheries in the open sea or in bays or arms of the sea.” See also Direct United States Cable Company v. Anglo American Telegraph Company L.R. 2 A.C. at p. 416.
18. Passing then to the question in hand it is to be observed that having regard to the fact that the rule as to the territorial waters of a country is founded on the principle that a proper margin is absolutely necessary for the safety and convenience of every country bordering on the sea and having regard to the fact that the limit of a marine league was arrived at with reference to the shooting power of cannons in former times, while those now in use are of a much longer range; doubts have been raised as to the propriety of maintaining this any longer as the proper limit (Hall’s International Law; 4th Ed., p. 160). “In 1894 the Institute de droit International exhaustively discussed the question and there was no decision or opinion as to the necessity of giving a greater breadth to the Zone, a decided majority favouring a Zone 6 miles from low water-mark as territorial for all purposes with the right in a neutral state to extend it in time of war to a distance from shore equal to the longest range of modern guns “. (Taylor’s International Public Law, p. 294; see also Hall’s International Law, p. 161, note.) But in the absence of a distinct international concert on the point, the ordinary limit of territorial waters in the open sea should, I presume, be taken to be that referred to above, subject perhaps to the qualification, according to the decision of the Supreme Court of the United States in Manchester v. Massachusetts 139 U.S. App. at p. 240 (already referred to), that ” all Governments for the purpose of selfprotection in time of war or for the prevention of frauds on its revenue exercise an authority beyond this limit.”
19. Be this as it may, certain parts of the sea spoken of as gulfs, bays &c, (Taylor’s International Public Law, 229 and 280; See also p. 138 Ibid) though few in number would seem to be recognized as standing on an exceptional footing, the reason for the exception, as I understand it, being that while in regard to waters truly An oceanic exclusive dominion by any particular nation is, in the very nature of things, impossible, such is not the case with reference to the parts of the sea referred to. From the instance of such waters occurring in the books, it is to be gathered that an important element in the determination of the question whether particular waters come within the exception is the position thereof with reference to the territories of the nations claiming special rights therein, for, it is obvious that if waters are encircled to a great extent by the land of one or more states, that conduces to and facilitates the springing up of exclusive rights. Whether in fact such rights have grown up must in the absence of treaties and compacts be a question of use acquiesced in by other nations. The law on this point was fully examined by Lord Blackburn-who delivered the judgment of the Judicial committee in Direct United States Gable Company v. Anglo-American Telegraph Company L.R. 2 A.C. 394 at 419 and 420 which related to Conception Bay in Newfoundland and I cannot do better than quote his observations. His Lordship said : ” Passing from the Common Law of “England to the general law of nations as indicated by the text-” writers on international jurisprudence, we find an universal ” agreement that harbours, estuaries and bays land-locked, belong ” to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to determine ” what is bay for this purpose.” It seems generally agreed that where the configuration and ” dimensions of the bay are such as to show that the nation occu-” pying the adjoining coasts also occupies the bay, it is pait of ” the territory; and with this idea most of the writers on the “subject refer to defensibility from the shore as the test of occu-” pation; some suggesting therefore a width of one cannon shot “from shore to shore or three miles; some, a cannon shot from “each shore or six miles; some an arbitrary distance of ten milea. “All of these are rules which, if adopted would, exclude Conception ” Bay from the territory of Newfoundland, but also would have “excluded from the territory of Great Britain that part of the “Bristol channel which in Beg, v. Cunningham Bell’s Cr. C. 72 was decided to be in the county of Glamorgan. On the other hand the diplo ” matists of the United States in 1793 claimed a territorial jurisdie-” tion over much more extensive bays and Chancellor Kent, in his ” commentaries, though by no means giving the weight of his “authority to this claim, gives some reasons for not considering it ” altogether unreasonable.
20. It does not appear to their Lordships that jurists and text-writ-” ers are agreed what are the rules as to dimensions and configura-” tion which, apart from other considerations, would lead to the con-” elusion that the bay is or is not a part of the territory of the state ” possessing the adjoining coasts and it has never, that they can find, ” been made the ground of any judicial determination. If it were ” necessary in the case to lay down a rule, the difficulty of the task ” would not deter their Lordships from attempting to fulfil it. But ” in their opinion it is not necessary so to do. It seems to them that ” in point of fact the British Government has for a long period ” exercised dominion over this bay and that their claim has been ” acquiesced in by other nations so as to show that the bay has been ” for a long time occupied exclusively by Breat Gritain; a circum-” stance which in the tribunals of any country would be very im-” portant.”
21. Now the question is whether the circumstances of the present case warrant the view that those parts of the sea which contain beds of chank and beds of pearl oysters forming the subject of fishery operations therein, come within the exception already adverted to. The beds referred to lie all along the Indian coast as well as the coast of Ceylon in the gulf of Mannar. This gulf is, no doubt, quite open towards the south but is otherwise almost.wholly surrounded by land, i. e., on the west by the Indian mainland, on the east by Ceylon and on the north by Adam’s Bridge and its contiguous islands forming one continuous barrier separating the gulf from Palk’s Bay. The latter is comparatively much smaller and is difficult of navigation owing to its shoals, currents and sunken rocks. The passage from the bay into the gulf iying between the mainland and Rameswaratn is quite a narrow one being only 1,350 yards in breadth (Dr, Thurston’s Bulletin No. Ill, p. 82.) and 10 to 15 feet deep in low water notwithstanding its having been deepened by our Government some years ago…
22. The gulf itself was similarly deepened by our Government to A admit of ships of greater draught Balfour’s Cyclopedia. Vol. I, p. ] 263). The gulf at its widest (between point de Galle in Ceylon and J Cape Comorin) is 200 miles while in its northernmost parts, its width is only 17 miles; from norbh to south the gulf is about 180 miles.
23. Such being the position and circumstances of the gulf and the surrounding country having from very early times, been inhabited by comparatively civilized races, the gulf, moreover, being, as it were, stocked with the already mentioned rich sources of weSlth and commerce, the rulers of those races who were shrewd enough to make revenue out of the sea water by making the manufacture of salt a state monopoly, were of course not slow in making revenue out of those sources as well. The fisheries in question were thus established and have been handed down from sovereign to sovereign until about the end of the 18th or the beginning of the 19th century they became vested in the British. All this is clearly told by authentic historians and travellers and for the present purpose it is not necessary to make more than a few references.
24. Friar Jardanus, a quaint old missionary bishop” says the author of the article on Pearl in Balfour’s Cyclopaedia, ” who was in India in 1330, says that 8,000 boats were engaged in this fishery and that of Ceylon and that the quantity of pearls was astounding and almost incredible. The Head-quarters of the fishery was then and indeed from the days of Ptolemy to the 17th century continued to be, at Chaylorcoil, literally, the temple, on the sandy promontory of Ramnad, which sends off a reef of rocks towards Ceylon known as Adam’s Bridge. And Ludovico de Vathema mentions having seen the pearls fished for in the sea near the toWn of Chayl in about A.D. 1500; and Barbosa, who travelled about the same time, says that the people at Chayl are jewellers who trade in pearls. This place is, as Dr. Vincent has clearly shown, the Kor”u of Ptolemy, the Kolkhi of the author of Periplus, the coil or chayl of the travellers of the middle ages, the Ramanadkoil (temple of Rama) of the natives, the same as the sacred promontory of Eam-nad and the isle of Rameswaram, the Head-quarter of the Indian pearl fishery from time immemorial.” Though in this passage no express allusion is made to the fisheries being King’s monopoly, that undeniable and well known fact is mentioned elsewhere. For example, Sir James Emerson Tennent in his work on Ceylon observes : “Monopolies are to the present day a prominent feature of the Ceylon revenue. The fishery of pearls and chanks has been, from time immemorial, in the hands of the sovereign” (5th Edn., Vol. II, p169). That this was also the case with regard to the fisheries on the opposite coast, that of Tirnevelly and Madura, while the country was still in the hands of Hindu rulers and down to a period not long anterior to the accession of the Nawab of the Carnatic to power, will be seen from the following extraots which I make from Nelson’s Manual of the Madura country :–“Another and a productive source of revenue was the greater pearl fishery which was carried on annually from cape Camorin to the Island of Painban. A rough idea of its value may be formed from a statement in a Jesuit letter of the year 1700 which describes the fishery, to the effect that the Dutch used to grant licenses to fish for pearls to all applicants at a uniform rate of about 60 Ecus for each vessel employed in the fishery and that sometimes as many as 600 and 700 vessels were so employed. The net sum realized must, therefore, have been about 36,000 Ecus. And it was realized from the fishery along the Tinnevelly coast only; the Ramnad coast being then fished by the Sethupathi, to whom it belonged” (p. 154, Part III, Nelson’s Madura Manual.)
25. They durst not attsmpt to coerce either the Sethupathi or the king of Madura and they took nothing by an embassy which they sent to the former, together with some valuable presents, for the purpose of inducing him to make over to them all his right and title to the profits of the pearl fishery on his coast. They had obtained from the king of Madura the monopoly of the fishery of the Tinnevelly coast and drew a considerable revenue from license to fish which they granted to all applicants” (page 227, ibid).
26. And the conch shell fishery must also have produced a considerable revenue if, as seems probable, the King enjoyed the monopoly of it (p. 154, ibid). The conch shell fishery was also theirs (belonging to the Dutch) within the same limits as the pearl fishery and yielded a considerable profit” (p. 227, ibid). It is scarcely necessary to add that it is matter of quite ? recent history that the fisheries on the said coast of the mainland passed into the hands of the East India Company on the cession to it by the Nawab of the Oarnatic of the revenues thereof, while the Ceylon fisheries vested in the British Crown on the conquest of Ceylon from the ‘ Dutch.
27. Now considering that the various European maritime powers, who from about the 16th century were contending for supremacy in the Indian seas, raised no question as to the right of the sovereigns for the time being of the Carnatic and Ceylon to their respective fisheries, there can be little doubt that such right was regarded, by one and all of them as unassailable. Nor is high authority in terms referring to and recognizing it wanting. Vattel, himself a strong adherent of the doctrine that the open sea is not susceptible of exclusive dominion, while dealing with the question of special appropriation of parts of the sea, writes thus in a well-known passage : ” The various uses of the sea near its coast renders it very susceptible of property. People there fish and draw from thence shells, pearls, amber, &c. Now in all these respects its use is not inexhaustible; so that the nation to whom the coasts belong may appropriate to itself an advantage which it is considered as having taken possession of and make a profit of it in the same manner as it may possess the domain of the land it inhabits. Who can doubt that the pearl fishery of Bahrein and Ceylon may not lawfully be enjoyed as property? And though a fishery for food appears more inexhaustible, if a nation has a fishery on its coast that is particularly advantageous and of which it may become master, shall it not be permitted to appropriate this natural advantage to itself as a dependence on the country it possesses?” (Book I, Ch. XXIII, Section 287, p. 115, Translation of 1759).
28. With so emphatic a pronouncement by such a publicist as to the lawfulness of the exclusive possession of the fisheries in question unbrokenly enjoyed from ancient times and with instances of exclusive occupation which have taken place almost under our own eyes with reference to pearl fisheries in Shark’s Bay, &c, in Western Australia and which include pearl banks beyond the marine league limit, one may with confidence lay down that, to say the least, the parts of the sea falling between the respective coasts and the lines opposite each connecting the extreme points seawards of the limits of the fisheries in question, are British territorial waters. It, therefore, follows that the petitioner is not precluded in law from making* out a good title to chanks in the localities specified by him, by the mere fact that they lie beyond the distance of a marine league from low water mark, if he can show that the immemorial right under which he claims extends to such localities.
29. As regards the last question in the view I take as to the territorial character of the waters in which the fisheries exist, it would, from Beg. v. Cunningham Bell Cr. C. 72, where it was held that an offence committed in a part of the Bristol Channel more than 3 miles from the shore was within the jurisdiction of the authorities of the country of Glamorgan, of course follow that our courts likewise have jurisdiction over offences committed in the parts of the sea in question, though the spots in which the offences are committed lie beyond a marine league from the shore. I would therefore set aside the order of the Head Assistant Magistrate, direct him to restore the complaint to his file and dispose of it in accordance with law.
Russell, J.
30. This is a criminal revision petition against the order of discharge by the Head Assistant Magistrate of Ramnad.
31. The question raised is whether “chanks” in the open sea can be the subject of theft.
32. The Magistrate holds that a chank is a fish and is feroe naturoe and as it was not shown that the chanks in the present case were removed from an enclosed space, or that breeding operations were carried on in regard to them, the conclusion arrived at by the Magistrate was that those chanks cannot be said to be in the possession of any one until they are removed, therefore they were not stolen from the petitioner.
33. The Sessions Judge before whom the matter came in revision declined to interfere on the ground that the open sea could not be said to belong to the petitioner and chanks caught in the open sea could not be the subject of theft.
34. The Government Pleader appears in support of the order of the Magistrate and has argued that no exclusive right by prescription as to fishing in the open sea could be acquired by the Rajah of Ramnad. It is as a lessee of the Raja of Ramnad that the petitioner assorts his rights.
35. The chank and pearl fishery beds along the coast of Tinnevelly and Madura have all been located and mapped out. It is a matter of common knowledge that these fisheries are a source of some revenue to Government, but Government, I take it from the appearance of the Government Pleader in this case, does not take up the position that chanks can be the subject of theft.
36. My conclusion in this case is based upon three simple propositions.
(1). The Gulf of Mannar is part of the high seas in which the crown claims no special rights or jurisdiction.
(2). The Raja of Ramnad is not the owner of the bed of: the sea below low water mark.
(3). Chanks are faroe naturoe.
37. I say the Gulf of Mannar is part of. the high seas from its size, configuration and geographical position. In the present case the Crown has not asserted any special rights in respect of any portion of the gulf and in this revision case I do not think we are entitled to assume that the Crown would, in fact, under any circumstances, assert any such right.
38. As to the ownership of the bed of the sea, it may be admitted that the authorities are not uniform on the subject. I, however, accept the reasoning and conclusion of Cockburn. C.J., in The Queen v. Keyn 2 Ex. D 62 at page 193 and the following pages This no doubt was a case which applied only to the coasts of Great Britain, but the reasoning and conclusion, I consider, applies equally to this country. I hold that the Crown does not own the bed of the sea below low water mark. The Government Pleader does not now assert that any such ownership vests in the Crown either by right of user or legislation. The argument on behalf of the petitioner is that he is the owner of the ” several fishery” in respect of chanks, of the Ramnad littoral shores and that this right carries with it the ownership of the soil of the sea. I do not admit the validity of this argument. In this case I do not wish to say anything which might unnecesarily interfere with any civil rights possessed by the petitioner. It is not necessary for me to deny that the petitioner may have a right to fish for chanks, though I may point out that there is authority for the position that a grant of the several ” fishery ” claimed could not be presumed, as it would be invalid if the soil of the bed of the sea does not vest in the Crown, which is the view I take. Coulson on Waters, 2nd edition, p. 358.
39. If this view bo correct, it follows that chanks before they are caught could not be looked upon as being in the possession of the petitioner and, therefore, there is no property in them either absolute or qualified till they are caught. Hence the following cases referred to by Mr. Srinivasa Aiyangar for the petitioner cease to be in point :–The Queen v. Shickle L.R. 1 C.C.R. p. 158 and Blades v. Higgs 11 H.L.C. p. 621.
40 My third proposition is that chanks are in the same category as fishes and are like the latter feroe naturoe. Chanks are free to move as they like. No doubt their movements are slow but they are probably more difficult to catch than most fish. To catch chanks experienced divers are necessary and, even then considerable difficulty must be felt in catching them. The difficulties experienced in catching chanks compared with fish must therefore be a question of degree. I do not see how chanks can be considered as tame creatures.
41. If the chanks in the present case are to be classed in the same category as fish, as I think they must be, there are decisions without number to the effect that they cannot be the subject of theft as there is no property in them till they are caught.
42. I have not been able to find any case analogous to the present in which it has been held that a theft has been committed. I may here remark that I think the case of State v. Taylor 72 Am. Dec. p. 348 is clearly distinguishable from the present one. Taylor was convicted of larceny in respect of oysters. The oysters were bred by the complainant in the sea at a place between high and low watermark where the public generally had a right to fish. ” The jury were instructed that if the same oysters which were planted by Hildreth”–who was the complainant ” were unlawfully taken by the defendant with the intent to steal them; if the oysters so planted could be easily distinguishable from the oysters thai grow in the sound; if they were planted in a place where oysters did not naturally grow; if the place where they were planted was marked and identified so that the defendant and others going into the sound for clams and oysters naturally growing there could readily know that these oysters were planted and held as private property and were not natural oysters, then the oysters were the subject of larceny and the defendant might be convicted.” No doubt the decision is an authority for the proposition that oysters under certain circumstances can be the subject of theft; but it is also an authority for the proposition that if oysters grow naturally in the sea they are not the subject of theft.
43. Reg. v. Downing 11 Cox C.C.R. 580 practically, turns on the same point as State v. Taylor 72 Am. Dec. 348 and unquestionably decides that oysters can be the subject of theft if dishonestly removed from a private oyster bed. Before, however, these decisions could be applied to the facts of this case, it would have to be found that the chanks were produced by breeding operations much like oysters in places in the sea which the petitioner had appropriated for that purpose. There is no suggestion in the present case that the chanks were produced by breeding. They in fact are the natural product of the sea. 80 that it appears to me the cases cited are not all on all fours with the present case. I may assert, therefore, I think, that no case has been brought to notice where a person has been convicted of larceny or theft in respect of an oyster or chank produced naturally in the sea.
44. The special legislation which has taken place in Australia does not, in my opinion, affect the position. It has there been enacted that under certain circumstances a person who removes oysters from the open sea shall ” be deemed” to be guilty of larceny. It does not follow therefore that in the absence of such legislation a person who removes chanks has committed theft as defined in the Indian Penal Code.
45. I might support the general conclusion at which I have arrived by asserting the broad proposition that in the high seas where these chanks have been caught all subjects of the Grown have an equal right to fish; but I do not wish to complicate the discussion unnecessarily. In ray view no theft has been committed because the chanks in the present case are ferae naturae as fish are and they have been produced naturally in the sea in beds which the Raja of Ramnad cannot claim to be his exclusive right.
46. I agree with my learned colleague in the opinion that if an offence has been committed, the Courts have jurisdiction to try it.
47. I think the petition should be dismissed as no offence has been committed.
