TMI Blog1997 (3) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... ted under Section 115(2) of the Customs Act could be pleaded as a valid defence against action against the vessel under that Section." 2.The vessel Vishwa Mamta, owned by the applicants carrying general cargo from Japenese Ports arrived at the outer anchorage of the Madras Harbour on 11-3-1983 and during the course of rummage of the vessel, the Officers of the Customs Department, seems to have recovered articles of foreign origin from various parts of the vessel after giving due notices and following the procedure prescribed. The Additional Collector of Customs, Madras, by his proceedings dated 19-3-1983, has ordered confiscation of the goods valued at Rs. 80,890/- under Section 111 of the Act read with Section 3(2) of the Imports and Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns reported in Additional Collector of Customs v. Mogul Lines Limited [1990 (48) E.L.T. 349], Malabar Steamship Co. Ltd. v. Additional Collector of Customs [1990 (48) E.L.T. 378] and Mogul Line Limited v. Additional Collector of Customs, Bombay and Another [1982 (10) E.L.T. 397 (Bombay)], in support of his contentions. 5.Per contra, learned Additional Central Government Standing Counsel, appearing for the respondent, placed reliance upon the decision reported in Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs, Calcutta and contended that the absence of personal knowledge is not sufficient to exonerate the applicant and that, therefore, the order of the Authorities below including the Tribunal, are qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame Rules laying down the precautions which must be taken against a sea-going vessel being used for transporting smuggling goods and that no such rules have been framed even till the date of the decision and therefore, it cannot be taken in that case that any precaution prescribed by any Rule was not taken. Though the decision appears to have been reported in the year 1990, the same was rendered on 30-7-1986. As a matter of fact, we find that the provisions of Section 115(2) of the Act underwent an amendment under the Central Act 26 of 1988 by which the words, "and that each of them had taken all such precautions against such use as are for the time being specified in the rules" came to be omitted. 8.In Malabar Steamship Co. Ltd. v. Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Single Judge of the Bombay High Court, has taken the view that it was not permissible for the Authorities to hold on the one hand that the Master or owner of the ship had no personal knowledge about the smuggling activities and at the same time, observe that the Master must have positive evidence to establish the lack of knowledge of the smuggling activities, and taking such views were obviously conflicting and contrary to each other since it would amount to establish a negative fact about the absence of knowledge by leading positive evidence which was not possible and therefore erroneous. On going through the order of the learned Judge, from the case report, we find the views expressed turned on the peculiar facts and circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of involvement and knowledge of the Master of the ship is warranted or unwarranted on the materials on record. On the other hand, the question formulated obliges us to consider the issue as to whether the non-framing of the Rules contemplated under Section 115(2) of the Customs Act could be pleaded as a valid defence against the vessel under the said provision, even though the adjudicating Authority was satisfied that the contraband goods recovered from the ship are of such a nature and quantity as could not be without the knowledge of its Master. In the light of our conclusion expressed supra that the absence does not impede or pose any obstacle in the effective enforcement of the provisions under Section 115(2), at any rate, in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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