TMI Blog1991 (12) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... the information, the said consignment was to go by Air India Flight No. A.I. 107; but on scrutiny of the export manifest filed by the appellants for the said flight, the particulars of the suspected consignment were not found. However, subsequently it was learnt that five packages covered by the said Airway Bill No. 09849692845 had been received at New York by A.I. 107 dated 27-11-1986 as unmanifested cargo. The said consignment was brought back to Bombay by A.I. 102 dated 3-12-1986. Each of the five packages was found, to be labelled with Air India Airway Bill No. 0984969284 and the name of the consignee and markings shown as per S/B No. 207940 dated 25-11-1986. On examination of the five packages so brought back from New York by A.I. flight No. 102 dated 3-12-1986, hashish weighing 125 kgs was recovered. Thereafter, investigations were carried out by interrogating the staff of Air India, partner and employee of the Customs House Agents who filed the said S/B, the Agents of Air India, who issued the Airway Bill and also the persons, who are shown as exporters in the said shipping Bill. Thereafter, show cause notices were issued to a number of employees of Air India as also to Air ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back the 5 packages and only after they were returned back, the Customs Department can recover the hashish; (v) Manifesting could not be done mainly because of the fact that papers kept in the pigeon hole were lost. If these papers were available, manifesting would have been done. (vi) The entire loading and unloading operation had been done under the supervision of the Customs officer; (vii) It is also pertinent to point out that many of the officials of the Air India connected with the loading operations have been issued with show cause notice, but the Addl. Collector has exonerated all of them and chosen to impose the penalty only on Air India. In any case Air India, as a corporate entity, cannot be attributed with any mens rea. It acts only through its employees and when the allegations against the employees have been dropped, there is no warrant for imposition of penalty on Air India. Though the Addl. Collector says that he is not imposing the penalty on the basis of vicarious responsibility of Air India, his action amounts to the same. It is not a case of duty liability where vicarious responsibility can be attracted. Even for construing the prosecution offence against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kept on board the Aircraft at any other transit station, is not at all convincing. She referred to the relevant portion of the order in original to show that these packages specifically referred to the Air consignment number covered by the shipping bill and also the marks and numbers figuring as per the Shipping Bill filed at Bombay. In the circumstances, it cannot be accepted that someone has loaded the packages either at Dubai or at London and put these markings on the consignment and sent to New York. These packages have actually been shipped only at Bombay unauthorisedly. She also pointed out that the Customs officers were acting on definite information about the particular shipping bill and they were making efforts to locate the consignment which was not found lying in the warehouse. In any case, if the documents are not available, the packages, atleast, should be available in the warehouse of the appellants. The fact that these packages were taken out from the warehouse and substituted by different packages and shipped through Air India flight itself indicates that Air India have failed to discharge the statutory obligations, inasmuch as the shipment of 5 packages has been do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, by carrying out random checks as prescribed. He cannot be expected to tally loading of all the goods on board the Aircraft, export document-wise. That is why the statute itself prescribes the responsibility, in this regard, on the person incharge of the conveyance. 7. The ld. Advocate, in reply, contended that systems and procedures are established and if the individuals have not followed the procedure, it cannot be said that there is no system existing. The Organization cannot be blamed for the lapses of some individual staff members. 8. After hearing both the sides, we find that it is, first necessary, to consider the contention of the learned Advocate that the 5 packages brought from New York by Air India Flight No. 102 dated 3-12-1986 might have been loaded in some other station in transist and may not relate to Bombay. In this context, the following factual position remains unchallenged :- The packages received from New York by Air India flight 102 dated 3-12-1986 were examined in the presence of panchas. On examination, it was found that they bore the markings as Geeta Marble Company, 7580 Pearey Lal Bhavan, Ram Nagar, N. Delhi . They were also bearing an Air Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revent unauthorised export of goods, without clearance by Customs or without inclusion in the manifest. It is pleaded by the ld. Advocate that the Customs officers have been deployed for supervision. This argument does not absolve their responsibility as carriers to check the loading of each package with the export document to ensure loading of only such packages, which have been allowed export by the proper officer of the customs and also to give true declaration of the goods carried by the aircraft in the export manifest. We also see considerable force in the argument of the ld. S.D.R. that the Customs officer posted for general supervision is to attend to many flights and he cannot check each piece of package loaded on board the aircraft by tallying it with the connected export documents. He could do only a random check during his visit to see whether the package being loaded during his visit is covered by the export document duly passed by the customs or otherwise. The statutory responsibility in this case is squarely cast on the person in charge of the aircraft and on the carrier who delivers the export manifest. 10. We find that though the investigations have been carried o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nauthorised loading of cargo, but from the affidavit purported to have been signed by one Shri Jyotirvadan Jugatrai Rindani, Secretary and Deputy Director Administration of Air India, we find that it is only to the nature of an explanation in the present case and does not throw any light on the methods adopted for guarding against the shipment of unauthorised cargo, nor they have indicated as to how they have improved upon the system. We are of the view that in a case of this type, the organisation should have on their own conducted thorough enquiry to locate the loopholes and to prevent repetition of such serious mistakes being committed. To out dismay. we find that nothing of this sort has been done and the appeal from the Air India is only on the ground that as an Organisation, it cannot have mens rea and when their employees have been exonerated, the Air India also should be given the same benefit. We are not at all happy about this approach. We, are not suggesting that Air India, as an Organisation, have knowingly committed this illegal export but we cannot restrain ourselves from observing that Air India being, a national carrier and having been entrusted with certain statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and to submit the export manifest prior to the departure of Aircraft containing the details of all the goods taken as cargo on board the Aircraft. We find that even Air India can not dispute that the five packages had gone unmanifested and the explanation given is that documents kept in the pigeon hole were missing. This positively indicates negligence in ensuring proper safety or security of the documents connected with shipment. This can be identified as an area of omission either due to faulty system or due to negligence on the part of the dealing staff. All the same, this results in an act of omission. Another point worth noting is that the goods have been loaded as cargo and they are not the ones kept concealed in some part of the Aircraft. For taking goods as cargo on board the flight, the statutory responsibility cast on the carrier is required to be fulfilled. 13. In this case, there is a failure to comply with the statutory obligation. Moreover, as a national carrier, they have been entrusted with the custody of export cargo till their shipment. If the documents were not found in the pigeon holes, at least the 5 packages should have been in their custody in the warehou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been imposed on this ground, in the absence of mens rea being established on their part as having knowledge about smuggling of hashish, they could not be visited with penalty. But the case here is somewhat different. They are entrusted with certain statutory obligations. Mere non-fulfilment of these statutory obligations rendering the goods liable to confiscation would expose the Organisation to penal liability. For this purpose, ingredient of mens rea need not be present since no criminal liability is alleged. What is alleged is failure to carry out statutory obligations. 15. The three citations made by the ld. Advocate were also duly considered. In one case, it relates to penalty imposed on a godown-keeper, who had no knowledge regarding the storage in the godown. In another case, it relates to imposition of penalty on the lorry owner with regard to improper export of silver. The truck was seized in the interior of the country and there was no statutory obligation cast on the owner of the truck for rendering a manifest or for loading only the goods allowed by the Customs Officer. The other case relates to imposition of penalty on an Air cargo agent for the alleged mis-decla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). While concurring with the finding as to existence of the liability for imposition of the penalty of the appellants and also to the quantum of the penalty as proposed to be reduced, in my view the involvement of the appellants could be viewed from another angle, and hence I deem it proper to record my separate reasonings. 2. There is no serious challenge to the factual position that a consignment of 5 packages, subsequently found to contain narcotics, was found loaded in the Aircraft of the appellants without any entry in that regard in the Manifest or without the shipping bill, and the consignment reached the Air Port at New York, where the same was detected as an unmanifested one, and therefore brought back to Bombay; except to the extent that a plea was raised before us that there was no evidence that the same was loaded only at Bombay and it was probable that the same could have been loaded at any other Air Port where the said Aircraft had landed and taken the cargo. That part of the theory has however to be rejected, in view of the evidence in the form of markings available that the consignment was booked at Bombay and packages were brought to the Air Port Cargo Complex at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensure that recurrence is prevented. 6. Reverting back to the point at issue, Chapters VI and VII of the Customs Act, impose certain statutory obligations on the carrier of the goods. The obligations impose could certainly not be viewed as mere procedural formalities, the lapse or non-compliance of which, could be viewed leniently. The allegations imposed thereunder are on the owners and persons in charge of the conveyances and the owners cannot absolve themselves of the liability by pleading that they functioned only through their employees. Statutory obligations imposed on the party, be it an individual or a body corporate, have to be complied with and they have to render themselves liable to penal consequences, if any lapse thereof is established. 7. Undisputedly unmanifested cargo of 5 packages had been loaded in the aircraft. Significantly, the said consignment was found in the cargo hold, where the loading is and even statutorily required to be, under the supervision and manifest has to be drawn. The consignment ought to have been under the shipping Bill, and notwithstanding other alleged lapses in taking timely actions, there has positively been non-compliance of statut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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