TMI Blog1968 (4) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 notice, dated February 21, 1963, were recovered from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner No. 2 at any Intermediate port of call. Neverthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) defines prohibited goods as:-- Prohibited goods means any goods the import or export of which is subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 attract the penalty under Section 13. In the case of Indo China Steam Navigation Co. v. Jasjit Singh, the Additional Collector of Customs Calcutta. , the Supreme Court had to consider the question wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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. Choudhary, the fact that by adopting the said construction the section would be rendered nugatory, would not be of any material significance. If, on the other hand, two constructions are reasonably possible one of which leads to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 India, they were in fact being carried to India by their vessel from places outside India. Does this alone make the petitioner No. 1 an importer and stamp upon the goods with the character of imported goods? The definitions of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 prohibited goods did not enter the vessel, without complying with the legal formalities, and thus escape the provisions of Section 112, read with Sections 111 and 30. An interpretation of Sections 30, 111(f) and 112, in a manner which may render imposition of penalty for importation of prohibited goods in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which the person-in-charge of a vessel may fall back upon, when he finds himself in the dangerous situation of having filed an incorrect Manifest, inadvertently or unknowingly excluding therefrom Imported goods, about the existence of which on board he had little knowledge. The imported Roods may be confiscated and the per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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