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 chank from a portion of the bed of the sea on the Corom???ndel 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 Ram-nad coast inclusive of the portion in question was, from time immemorial, vested exclusively in the holder??? of the R???mnad Z???mindari 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 bat 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 s. 379 of the Indian Penal Code predicable 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 pre cluded from establishing an exclusive right to such of them as exist beyond a marine league from low watermark?

3. Whether the Courts of this country have jurisdiction to try charges of theft of chanks when the removal of the chanks is from a locality outside the said marine league limit?

3. It is necessary to preface the discussion of these questions with a few general observations. Ohanks 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 Oyclopaedia of India, 3rd Edition, Vol. I, p. 656). They thrive in sand beds in the sea bottom, 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, s. 45. Such beds exist all along the above mentioned coasts in depths of 2 to 10 fathoms or thereabouts. (Balfour's Cyclopaedia, 3rd Edition, Vol. I, p. 656,) and Dr. Thurston's Notes on Pearl and Chank Fisheries and Marine Fauna of the Gulf of Mannar (1890) pp. 11 and 31. These beds as well as the bads of pearls, oysters (oysters unlike chanks affect rocky ground, Mr. Thomas' Report, p. 15, s. 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 lie much nearer (Dr. Thurston's Notes, pp. 17 and 109, Eacyclopaedia 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 11/2 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 hare in respect of the beds belonging to that colony passed ordinances, the earliest, so far as appears, having been enacted in 1811. 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 If minutes to 21/2 minutes (Mr. Thomas' Report, pp. 32 and 104) being in this respect similar to pearl oysters (Mr. Thomas' Report, p. 5, s. 11). Ohanks alive are known as green ohanks, while shells of dead ones, also to be found in the beds, go by the name of white-shanks (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 go beyond 12 or 13 fathoms and seldom over 9 (Mr. Thomas'Report, p. 26, s. 85 and Mr. Emerson Tennent's Ceylon, 5th Edition, Vol-II, p. 564).

4. Chank shells have long been used in this country for various purposes. Bracelets are made out of them and are worn largely by women inthe Northern parts of India, workmen moat 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 posses 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 chanks or shells with the whirl on the right are specially prized and fetch high prices. A chank of this description was among the presents Bent by one of the kings of Ceylon to Asoka in B.O 306 (Tennent's Ceylon Vol. I, p. 446). Naturally, therefore, there has been a considerable trade in chanks from very remote times, and the allusion to them in the Cosmos Indico pleustes 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.)

5. 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 Ramnad 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 be such the right to pearl fisheries on the coast was apparently taken away, the right to the chank fisheries alone being continued to them. It has been viewed by soma that chank fishery operations tend to injure pearl oysters and this view has led to the discontinuance of chank fisheries on the Ceylon coast, Sach 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, s. 44). Our chank fisheries are Worth to Government from four to five times as much as pur 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, s. 91). These latter brought in to the State in a pertain 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 Britannica, 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 190203 (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, s. 87.)

6. With these observations, I shall now proceed to discuss the questions stated above in their order.

7. Though undoubtedly what may properly be spoken of as fishes in the open sea are fer???, nature, and do not form the subject of property until actually seized, yet I am unable to accept the argument of Mr. Sivaswamy Aiyar 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 chanks 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 immoveably 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 oystera are not so sedentary but can move very slowly about, is immaterial. The observations of Green, C.J, in State v. Taylor, (1) (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 animal fer???e nature. there can be 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 animal ferce natures, 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 ferce natural, 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 assi???ilated to tame animals than to wild ones and perhaps more nearly to inanimate objects than to animals of either description.” ().

8. These observations seem to me to be substantially applicable to chanks and pearl oysters which may, therefore, with perfect propriety, be treated as standing on a par with fer???e domit??? and like them the subject of absolute property. Supposing, however, they should be treated differently from fer??? domit???, 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 prerogativs right exclusively to him, a fact from which it must, with reference to the Crown and persons having similar right, be held that they, ratione 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 coarse only so long as they do not migrate beyond the limits within which the right is exercisable.

9. 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 laraeny would seem to have reference to the rule of English Criminal Law thus stated in Hale's Pleas of the Grown. “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, ect., made time, which though wild by nature, served for food.” Bat 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 other containing what on account of their beauty and rarity have always been among the choicest objects of the jewellers' art. 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 for 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” (S???le's Pleas of the ???rown, 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 Indian Penal Code, an animal which is recognised as property is ipso facto capable of being stolen.

10. Now as to the last branch of the question I cannot see what difficulty there can be in holding that ohanks and pearl oysters while still in the beds are, within the meaning of s. 379 of the Indian Penal Code, in the possession of persons who may show a title thereto. The ??? that the subjects of His Majesty and others may navigate the waters, could not preclude the practicability 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 personal chattels draws after it the possession” (see State v. Taylor) 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 ???hanks and oysters belonging to it is too obvious to require further discussion.

11. As regards the Ramnad proprietor also, the same conclusion would follow if he has the immemorial right claimed. Without intending or seeming to intruduce into this country the highly technical distinctions peculiar to the law of Eagland 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. Srinvasa Aiyan-gar 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 (Halford 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 ???hanks 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. 0.96, 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.

12. Apart from any statute, in State v. Taylor 72 Am. Dee. 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 haying 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 (shanks 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.

13. 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 unmistakeable trend of legal thought on the subject. I refer to 50 Vict No. 14, the Shark's Bay Pearl Shell Fishery Act, 18???6, s. 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 pro perty 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 excaeding two years, with or without, hard labour.”

14. As to the cases of The Queen v. Revu Pothadu, Subba Reddi v. Munshoor All Saheb , Hurimoti Moddock v. Deno Nath Malo, Bhusun Parui v. Denonath Banerjee, Empress v. Charu Nayiah, 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 natur???s 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 ohanks are not ferce natur??? properly so called, see the observations of Westbury, L.C, in Blades v. Higgs () and have already been held to be at least the subject of qualified property even in their natural habitat, shell of dead ohauks being of oourse absolute property in every sense.

15. I pass on to the next question which involves considerations of no small importance. In dealing with it, I wish before going farther to say that Queen v. Keyn () 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. Massachussets (), viz, that “the question there (in Queen v. Keyn) 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 ().

16. 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 principla that a proper margin is absolutely necessary for the safety and convenience of every country bordering on the sea, and having regard to the fast 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 ate 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). “ln 1834 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 extoad it in time of war to a distance from shore equal to the longest range of modern guns” (Taylor's international Public Law, p. 291; 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 shove, subject perhaps to the qualification, according to the decision of the Supreme Court of the United States in Manchester v. Massachusset (already referred to), that “all Governments for the purpose of self-protection in time of war or for the prevention of frauds on its revenue exercise an authority beyond this limit.”

17. Be this as it may, certain parts of the sea spoken of as gulfs, bays & c, (Taylor's International Public law, 229 and 230; 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 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,/or, 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 Cable Company v. Anglo-American Telegraph Company () 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 occupying the adjoining coasts also occupies the bay, it is part of the territory; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation; 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 miles. 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 Reg. v. Cunningham, () was decided to be in the county of Glamorgan.

18. On the other hand the diplomatists of the United States in 1793 claimed a territorial jurisdiction 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.

“It does not appear to their Lordships that jurists and text-writers are agreed what are the rules as to dimensions and configuration which, apart from other considerations, would lead to the conclusion 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 Great Britain; a circumstance which in the tribunals of any country would be very important.”

19. 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 wall 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 Oeylon, 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 Bhoals, currents and sun ken rocks. The passage from the bay into the gulf lying between the main land and Rameswaram is quite a narrow one being only 1350 yards in breadth (Dr. Thurston's Buletin No. III, p. 82) and 10 to 15 feet deep in low water notwithstanding its having been deepened by our Government some years ago.

20. The gulf itself was similarly deepened by our Government to admit of ships of greater draught (Balfour's Cyclopaedia, Vol. I, p. 1263). The gulf at its widest (between point de Galle in Ceylon and Cape Comorin) is 200 miles while in its northernmost parts its width is only 17 miles; from north to south the gulf is about 130 miles.

21. 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 wealth 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 vasted 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.

“Friar Jardanus, a quaint old missionary bishop” says the author of the article on Pearl in Balfour Cyclopaedia, “who was in India in 1339, says that 8,000 boats were engaged in this fishery and that of Oeylon 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 Oeylon 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 Ba???bosa, who travelled about the same time, says that the people at Ohayl are jewellers who trade in pearls. This place is, as Dr. Viacent has clearly shown, the Koru of Ptolemy, the Kolkhi of the author of Periplus, the coil or chay of the travellers of the middle ages, the Ramanadkoil (temple of Rama) of the natives, the same a? the sacred promontory of Ramnad 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 Oeylon 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, p. 169). That this was also the case, with regard to the fisheries on the opposite coast, that of Tinnevelly 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 Oarnatic to power, will be seen from the following extracts 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 Comorin to the Island of Pamban. 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 need 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. 151, Part III, Nelson's Madura Manual.)

“The durst not attempt 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).

“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.

22. 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 Carnatie 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 s???a near its coast render 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 Oeylon 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, Oh. XXIII, s. 287, p. 115, Translation of 1759).

23. With so emphatic a pronouncement by such a publicist as to the lawfulness of the exclusive possassion of the fisheries in question un-brokenly 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, 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.

24. 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 Reg. v. Cunningham (), 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 county of Glamorgan, of course follow that our courts likewise have jurisdiction over offences committed in the parte 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.:— This is a criminal revision petition against the order of discharge by the Head Assistant Magistrate of Ramnad.

25. The question raised is whether “chanks” in the open sea can be the subject of theft.

26. The Magistrate holds that a chank is a fish and is fer???e nature, 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 ???hanks cannot be said to be in the possession of any one until they are removed, therefore they were not stolen from the petitioner.

27. 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.

28. 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 asserts his rights.

29. The chank and pearl fishery beds along the coast of Tinnevally 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.

30. 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 Grown 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 fer???e natur???e.

31. I say the Gulf of Mannar is part of the high seas from its size, configuration and geographical position. In the present case the Grown, 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 Grown would, in fact, under any circumstances, assert any such right.

32. 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 (), 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 Grown 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 Grown 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 ???hanks 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 unnecessarily 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 ???hanks, 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 Grown, which is the view I take. Coulson on Waters, 2nd edition, p. 358

33. If this view be correct, it follows that ???hanks 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 () and Blades v. Higgs ().

34. My third proposition is that ???hanks are in the same category as fishes and are like the latter ferae naturae. ???hanks 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 ???hanks experienced divers are necessary and, even then considerable difficulty must be felt in catching them. The difficulties experienced in catching ???hanks compared with fish must therefore be a question of degree. I do not see how ???hanks can be considered as tame craatures.

35. If the ???hanks 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.

36. 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 Ithink the case of State v. Taylor () 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 that 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 forclams 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 circumstancss 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.

Reg. v. Downing () practically turns on the same point as State v. Taylor () and unquestionably decides that oysters can be the sub-ject 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 ???hanks 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 ???hanks were produced by breeding. They in fact are the natural product of the sea. So 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 or larceny of theft in respect of an oyster or ???hank produced naturally in the sea.

37. 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 ???hanks has committed theft as defined in the Indian Penal Code.

38. I might support the general conclusion at which I have arrived by asserting the broad proposition that in the high seas where these ???hanks 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 my view no theft has been committed because the ????hanks in the present case are ferce, natur???e 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.

39. I agree with my learned colleague in the opinion that if an offence has been committed, the Courts have jurisdiction to try it.

40. I think the petition should be dismissed as no offence has been committed

41. The Court being divided in opinion, the case was ordered by the Honourable the Offioiating Chief Justice to be posted before Mr. Justice Benson, Mr. Justice Boddam and Mr. Justice Bhashyam Aiyangar.

S. Srinivasa Aiyangar for petitioner.

T.R Venkatarama Sastri for P.S Sivaswami Aiyar for respondent accused.

JUDGMENT*.

42. In this case the complainant charged certain persons with having committed the offence of theft of ???hanks from the ???hank beds leased to him by the Rajah of Ramnad of the coast of his Zamindari.

43. The Head Assistant Magistrate discharged the accused on the ground that ???hanks are fish and are ferae, natur???e, and in this case were taken from bads in the open sea and were therefore not taken from the possesion of any parson and could not be the subject of theft. The case came up for revision before a Bench of this Court composed of the Offioiating Chief Justice and Russell, J., but, as they were unable to agree, the case was posted before us and our late colleague Sir Bhashyam Aiyangxr for argument and disposal. We have no doubt that the grounds on which the accused were discharged are untenable, and that the ???hanks in question were capable of being the subject of theft.

44. The offence of theft under the Indian Penal Code is committed if there is a dishoneat taking of moveable property out of the possession of another; and the questions for our decision are whether the ???hanks in question were capable of being regarded in law as the property of the lessee of the ???hank beds, and of being in his possession before their alleged taking by the accused. We have no doubt that both these questions must be answered in the affirmative. It was agreed before us that the beds from which the ???hanks were taken are situated in Palk's Bay, not the Gulf of of Mannar, as supposed by Russell, J. Palk's Bay is a large stretch of sea water lying between the coasts of Iadia and Ceylon. It is roughly 10 miles long by 50 or 60 broad, is bounded on the north, west and south by the Indian districts of Tanjore and Ramnad and on the east by ???eylon. There is a narrow passage, three-fourths of a mile wide, connecting it on the south with the Gulf of Mannar, which also lies between Iadia and ???eylon. This passage is known as the Straits of Pamban and it separates the mainland from the large island of Rameswaram, which forms part of the Indian district of Ramnad, and from which a continuous line of coral reefs known as Adam's Bridge, extends to the island of ???elyon. The passage was deepened some years ago, but is even now only 10 to 15 feat in depth. At its north-eastern extremity Palk's Bay opens into the Bay of Bengal by a strait which is not more than one-ninth of the circumference of the bay. It will thus be seen that Palk's Bay is a bay, or arm of the sea, landlocked by His Majesty's dominions for eight-ninths of its circumference, and it also contains a great number of islands which, form part of the districts to which they are adjacent on the Indian and ???eylon sides respectively. There is ample historical evidence which has been referred to in the judgment of the learned Officiating Caief Justice, and which we need not recapitulate, to show that this bay and also parts of the adjacant Gulf of Mannar, have been effectively occupied for centuries by the inhabitants of the adjacent districts of India and ???eylon respectively.

45. We do not think that Palk's Bay can be regarded as being in any sense the open sea and therefore outside the territorial jurisdiction of His Majesty. We regard it rather as an integral part of His Majesty's dominions, the portions adjacent to India being within the jurisdiction of the Indian authorities, and the portions adjacent to Oeylon being within the jurisdiction of the authorities of that place.

46. That this is the correct view is, we think, clear from the case of Reg. v. Cunningham () in which it was decided that the Bristol Channel, lying between England and Wales, was a part of Great Britain. Cockburn, ???. J., in delivering judgment said: “The principle on which we proceed is that the whole of this inland sea, between the counties of Somerset and Glamorgan, is to be considered as within the counties by the shores of which its several parts are respectively bounded,” Referring to this judgment Lord Blackburn in delivering the judgment of the Privy Council in the Conception Bay Case () said: “This much was determined that a place in the sea, out of any river, and where the sea was more than ten miles wide, was within the county of Glamorgan, and consequently in every sense of the word within the territory of Great Britain. It also shows that usage and” the manner in which that portion of the sea had been treated as being part of the county was material.” His Lordship then proceeded: “Passing from the ???ommon 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 landlocked 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 occupying the adjoining coasts also occupies the bay, it is part of the territory.” He then stated that no precise rule had been laid down or was required to be laid down in the case before their Lordships as “it seamed to them that, in point of fact, the British Government had for along period exercised jurisdiction over this bay and that their claim had been acquiesced in by other nations so as to show that bay had been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country would be very important,” and which we may add would be conclusive as against a subject of Great Britain. Applying these considerations to the present case, and comparing the configuration and dimensions of Palk's Bay with those of the Bristol Channel and of Conception Bay, and considering the evidence that exists as to the occupation of Palk's Bay by the British with the acquiescence of other nations, we have no hesitation in holding that it is just as much an integral part of His Majesty's dominions as are the Bristol Channel and Conception Bay, and that the chank beds where the alleged offence was committed, which are five miles off the coast of Ramnad at Mudiampatnam, are part of the territories of British India.

47. The the decision in the case of The Queen v. Keyn () relied on by the respondents, referred to the jurisdiction of the Court of Admiralty in England over offences committed in the open ssa, and has no application to such a state of facts as exists in the present case.

48. Such, then, being the correct view as to the character of the place where the alleged offence was committed, we proceed to con-aider whether chanks taken from it can be the subject of theft.

49. It is, of course, quite incorrect to regard chanks as, in any sense, fish. No doubt they may be popularly included among “shell fish” but neither Zoologically nor legally have they any of the essential characteristics of fish. They are large molluscs. The shell in which the living mollusc resides is six or seven inches long, and may weigh as much as a couple of pounds. They are found buried in a particular kind of sandbad, or in the sandy crevices of the coral reefs which abound in the Bay. They can crawl slowly, a foot or two in a mintue, but they are incapable of rapid motion or of saving themselves from being captured by any one who proceeds to take them. They are gathered by divers, who sometimes collect as many as twenty at a haul. The chank beds on which they lie are all carefully mapped out, and full details respecting them are recorded by the authorities. They lie at various depths in the water from 2 to 10 or 18 fathoms. Live chanks are known as green chanks, and the shells of the dead animals are known as white chanks. Both are collected and are articles of very considerable utility and commercial value. The evidence shows that for many hundreds of yeras they, like the pearl oysters which are generally found in adjacent beds, have been the monopoly of the rulers of the oountry both in India and Oeylon, and that licenses to gather them have been granted by the sovereign. In addition to the facts stated by the Officiating Chief Justice in his judgment, we may say that, when it was determined to make a permanent settlement of the revenue of the Ramnad Zamindari in 1802, we find the “chank royalty” named as one of the eight heads Of revenue on which the permanent assessment was fixed (Nelson's Manual, Part IV, p.155), and it appears that in 1803 this chank royalty was hypothecated to Government 83 security for arrears of revenue. In 1874 the chank royalty “in the seaports mentionedin the margin” (which included Mudiampatnam now in question) was attached for arreaes of;revenue, and so lately as 1899 and 1900, Government itself leased the chank fisheries from the Zamindar.A great deal of learned argument has been addressed to as on the subject of animals fer??e natures and the English Law of lareeny ia regard to them. If it were necessary to decide whether ohanks should be classed as fer???e, natur???e or as domit???e natures we should certainly hold that they belong to the latter class. It is iiot easy to regard a chank as being of a “wild disposition (fer???e natur???e) There is no evidence that it ever migrates from the bed in which it is born and its power of locomotion is so small that it is powerless to escape from any one who desires to take it.

50. It has been judicially held in America thai for legal purposes oysters “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”. in this view we concur we think that ohanks may properly be placed in the same category With oysters. The fact that fish in a river or in an open and u???enclosed tank have been held by the courts in India not to be the subject of theft is irrelevant, because they are so held by reason of their power to escape up or down the river or out of the tank cannot therefore be regarded as in the possession of the owner of the tank. But even fish if in an enclosed tank, so as to be uuder the control of the owner of the tank are capable of being the subject of theft (Queen-Emprees v. Shaik Adam Valad Shaik Farid (); and even the young of wild birds, Such as hawks or herons, if found on a man's laud may be the subject of larceny propter impotentiam, owing to their inability to escape capture, or to pass from the possession of the owner of the land, though the old birds may not be the subject of larceny (). Even if ohanks are in a cartaia sense fer???e, vatur???e, we think that they should still be regarded as in possession of the owner of the chank bed propter im potentiam and, therefore, capable of being the subject of larceny. The Indian Penal Code, however, in dealing with theft has no special provisions regarding animals fer???e or domit???e natures. The question in each case is whether the animal is the property of another and was dishonestly taken out of his possession. It seems to us that there ia nothing in the nature of a chank whether it be the dead shell or the living mollusc which prevents it from being the subject Of property, and that when it lies in its sandbad under the sea, it is as much in the possession of the owner of the said bed as are the coal that lies buried in the ground, and the snailthat crawls on the dry land, and the worm that burrows in the earth in possession of the owner of the land where they are found. The exclusive property in these chanks has, in fact, been held by Government from time immemorial and has been leased out for the benefit of the public reveaue, and this is in accordance with the common low of the country which recognizes the power of Government to make settlements or grants for purposes of revenue of all unsettled and unappropriated lands, whether covered by water or not covered by water, and, therefore, of the produce or portions of the produce of such lands. (Hori Das Mal v. Mahomed Jaki () per Garth, C.J, on behalf of the Full Bench; and Viresa v. Tatayya ().

51. In our view, then, the chanks which the accused in this case are alleged to have stolen were capable of being the subject of theft, and were taken not from the bed of the high seas but from an arm of the sea which is part of the territory of British India, which has been in possession of the Grown from time immemorial. It is not denied that the Crown has included the revenue derivable from the chanks in the permanent settlement of the Zemindari under Regulation XXV of 1802 and that the Ramnad Zamindar has leased them to the complainant. If the taking of the chanks was dishonest it would be theft. We must, therefore, set aside the order of discharge and direct the Head Assistant Magistrate to restore the case to his file and dispose of it according to law. In order to prevent misapprehension, we may add that if the beds from which the chanks were taken had been off the coast of Ramnad in the Gulf of Mannar (as supposed by the Judges who first heard the petition) in????steii of in Palk's Bay, our decision would have been the same, since the evidance of effective occupation of the caank beds in both localities is very similar.

52. Our learned colleague, Sir Bhashyam Aiyangar, does not sign this judgment as he is no longer a member of the court, he has expressed his concurrence in it.