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TMI Blog1968 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon them to show cause why the seized goods, covered by the said notices, should not be confiscated inter alia, under Section 111 (d) & (f) of the Customs Act and also why the said ship should not be confiscated under Section 115(2) of the said Act. By the said notices the petitioner No. 1, the Master of the vessel, was also called upon to show cause why action should not be taken against him under Section 112(a) of the said Act. 4. The notices issued as aforesaid were (1) Notice No. S-12(iv) 178/63P dated 21-2-1963 covering recovery of consumers' goods valued at ₹ 1,07,000/-. (2) Notice No. S12(iv) 178/63P dated 23-2-1963 covering recovery pf consumers' goods valued at ₹ 1,10,000/-. (3) Notice No. S12(iv) 188/63P dated 23-2-63 covering recovery of consumers' goods valued at ₹ 339.50. (4) Notice No. S12(iv) 223/63P dated 22-3-1963 covering recovery of consumers' goods valued at ₹ 241.40 (market price. ₹ 751). (5) Notice No. S12(iv) 223/63P dated 22-3-1963 covering seizure of consumers' goods valued at ₹ 28,143.50. 5. The seized goods were recovered from all sorts of places in the ship. The goods covered by the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent their discovery and that neither the Master nor any other officer nor any member of the crew of the said ship would be reasonably expected to have any knowledge of the existence or whereabouts of the said prohibited goods. 7. Besides the affidavit and the declarations, hereinbefore referred to. the petitioners also submitted certain declarations from the representatives of steamer agents of the petitioner No. 2 at Penang, Swettenhan, Auckland and Singapore, showing that they had also taken all reasonable precautions to prevent smuggling by the said ship. 8. Besides the written statements submitted by the petitioners, they appeared before the adjudicating authority and made oral representations to exonerate themselves from the charges levelled against them. 9. Notwithstanding the cause shown, the respondent No. 1 did not wholly exonerate the petitioners. Respondent No. 1 found that the ship was not liable to confiscation under Section 115 of the Customs Act The aforesaid finding was apparently made on the basis that the smuggling of the goods must have been made without the knowledge or connivance of the petitioners or of any of them or of any other agent of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so mentioned. (g) to (o) It was contended before me, in the first place, that before penalty under Section 112 could be imposed upon the petitioner No. 1, Sections 30, 111 and 112 of the Cus toms Act are required to be properly con strued, which was not done in the pre sent case. It was further argued that regulation as mentioned in Clause (f) of Section 111 had not been prescribed, on the date when the offending goods were seized, and until prescription of such re gulations Clause (f) could not be made workable. 11. In order to test the validity of the argument I need consider certain provisions of the Customs Act, 1962. Section 2 f35) defines "regulations" as; "Regulations" means the regulations made by the Board under any provision of this Act; Section 2(33) defines "import" as:-- "Import with its grammatical variations and cognate expressions means bringing into India from a place outside India." Section 2(25) defines "imported goods" as: "Imported goods" means any goods brought into India from a place outside India but does not include goods which have been cleared for home consumption; Section 2(33) de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods did not figure in the said manifest. There is also no dispute that the goods that were seized were prohibited goods, importation whereof, without a valid Import Trade Control Licence, is prohibited under Section 111 of the Customs Act, 1962 read with Section 3 (1) of the Import and Export (Control) Act 1947 and that such goods are liable to confiscation under Clause (d) of Section 111 of the Customs Act, 1962 read with Section 3 (2) of the Import and Export (Control) Act, (1947). 12. The question is whether prohibited goods clandestinely stored in a ship without knowledge of the person-in-charge thereof, would be imported goods within the meaning of Section 2(25) of the Customs Act. If they are imported goods then Section 30 of the Customs Act would be attracted and such goods also must be included in the import manifest But then the question remains whether non-inclusion of clandestinely imported goods in the import manifest would attract the penal provision of the statute upon the person-in-charge of the vessel, who unknowingly fails to include such goods in the manifest. In other words, whether the absence of mens rea in submitting incorrect and incomplete manifest would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il fully". It is significant that the words "knowingly or wilfully" are used in seve ral other provisions contained in Section 167. Thus, where the legislature wanted to introduce the know ledge or intention actuating the commis sion of the offence as an essential element of the offence, it has used appropriate words to indicate that intention. The failure to use a similar word in Section 167 (12A) cannot, therefore, be regarded as accidental, but must be held to be deliberate. In our opinion, there is some force in this argument as well. (23) Besides, there can be no doubt that in construing a section, it would be relevant for the Court to consider whether the construction for which Mr, Choudhury contends would not make the provisions of Section 52A read with Section 167 (12A) substantially nugatory. If it appears that the adoption of the said construction would substantially defeat the very purpose and intention of the legislature in enacting the said section, that would be a legitimate reason for rejecting the said construction. If the words used in Section 52A are capable of only one construction and no other, and that construction is the one suggested by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially made for the purpose of concealing goods. If the alteration is shown to serve any operational or functional purpose in the ship, that would clearly justify the plea that it was not made for the pur pose of concealing goods. It may be that if the alleged alteration, adaptation or construction is proved to have been initially made for a functional or opera tional purpose, and it is shown that sub sequently it has been used without the knowledge of the master or the owners for the illegal purpose, that may raise a triable issue as to whether the alteration falls within the description of Section 52A." 15. Now, bearing in mind the value to be attached to the absence of mens rea in a statutory offence, under Section 52A read With Section 167 (12A), as laid down by the Supreme Court, I have to see how far those considerations apply in interpreting Sections 30, 111 and 112 of the Customs Act. There is no dispute that the goods seized from the vessel are all prohibited goods, within meaning of Section 2(33) of the Customs Act. They were brought to India from places outside India. Thus, even though the petitioners were not aware that the offending goods were being brought to I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of India wants to prohibit or regulate for economic reasons. The procedure prescribed by the Customs Act, namely, that all imported goods shall be included in the Manifest and delivered to the proper official of the Customs under Section 30, that the failure so to do will render the imported goods liable to confiscation under Section 111(f) and that omission to discharge the statutory duty will render the person responsible therefor to a penalty under Section 112, are all meant to safeguard the economies of the country from the danger of uncontrolled clandestine importation. To hold that an innocent Master of a vessel, who is unable to control illegal importation of large quantities of prohibited goods, should not be visited with the penalty under Section 112, may render the safeguards wholly nugatory. When importation of prohibited goods are discovered from hidden nooks and corners of a vessel, it may be difficult to establish that the Master of the vessel had knowledge of the illegal importation. He may always come out with the explanation as done in this case that he had warned the crew against indulging in illegal importation and had taken all precautions to see that prohibit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 1 was satisfied that the petitioner No. 1 was not guilty of any fraudulent intention when he submitted the manifest, therein failing to include the clandestinely imported goods. Respondent No. 1 charged petitioner No. 1 with want of diligence in the matter of submission of the manifest. In substance his finding amounts to this that an incomplete manifest was submitted without any fraudulent intention, that is to say without mens rea. Since the respondent No. 1 was satisfied in that way, he should have exercised his power under Sub-section (3) of Section 30 by allowing the petitioner No. 1 to amend or supplement the manifest, and should not have imposed the penalty, as done in this case, without more. 18. It is no doubt true that Section 30 uses the expression "may permit it to be amended". The word "may" in the context of the section, does not make the exercise of the power subjectively discretionary with the Customs authority. That authority shall exercise the power to condone incomplete and incorrect Manifests, whenever satisfied that the person-in-charge of the vessel was not blameworthy for the incorrect return. This is the only safeguard on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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