TMI Blog1958 (9) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... from Kobe on .15-6-1937 and after touching at Hongkong, Singapore, Penang and Rangoon as also other places, arrived at the Sand-Head in Calcutta on 11-8-1957 at 12.00 hours. On 12-8-1957 a party of Customs Officers boarded the vessel in the lower reaches of the river Hooghly, and kept her under guard whilst she proceeded up-stream to Calcutta. Upon arrival at Panchpara, which is a Customs Boarding Station, Guard Officers and Rummaging Officers searched the vessel and discovered a specially made recess in the roof of the meat-roam of the domestic reefer compartment. The recess was ingeniously concealed by a Steel bracket painted with aluminium paint which was so made up as to look like a bracket normally used for the hanging of meat carcasses. The opening to the recess was approximately 9 x 21/2 and was kept closed by a wooden plug. The steel bracket was found to have a number of screw-heads welded to it, to appear like genuine screws fastening the steel bracket to the roof of the meat room. The Customs Officers while searching, removed this bracket and opened up the recess when it was found to contain a number of packets wrapped and fastened with cellophane tapes. In these packe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rches are made with strict care. It was stated that in spite of such warnings the owners have become victims in the hands of wicked criminals and that they were not responsible for any of the alleged offences. Thereupon, there was an enquiry, and on 5-9-1957 the Additional Collector of Customs passed an order that the vessel be confiscated under Section 167 (12A), of the Sea Customs Act. In lieu of confiscation, however, the Assistant Collector of Customs imposed under Section 183 of the Sea Customs Act, a fine of rupees four lacs only. A personal penalty of ₹ 500/- was imposed upon the Master of the offending vessel under Section 167 (12A) of the said Act, A personal penalty of rupees one thousand was also passed against the mess boy Ma Tseng Shing. The petitioners paid a sum of rupees four lacs under protest and the ship was allowed to leave Howrah. The gold was confiscated. This Rule was issued against the Respondents on 4-12-1957 to show cause why a Writ in the nature of Certiorari should not issue quashing the said order dated 5-9-1957 and why a Writ in the nature of Mandamus should not be issued calling upon the Respondents to forbear from giving effect to the said orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the commission of the of fence is irrelevant for purposes of imposition of the penalty. (3) That in any event, the imposition of a penalty of four lakhs is bad. 3. Before I deal with the points raised, I might mention here the principal provisions of the Sea Customs Act, 1878 upon which the case hinges. 4. The first provision is Section 52A, which runs as follows: No vessel constructed, adapted, altered or fitted for the purpose of concealing goods, shall enter, or be within, the limits of any port in India, or the Indian Customs waters. 5. This section, which constitutes Chapter VIA of the Act, was introduced by Section 3 of the Sea Customs (Amendment) Act, 1957 (Act 10 of 1957). The Chapter is entitled, Prohibition of entry of vessels constructed, etc., for concealing goods, 6. The provisions of Section 167 (12A) of the Act was also introduced by Section 4 of the same Amendment Act. It runs as follows: If a vessel constructed, adapted, altered or fitted for the purpose of concealing goods, enters or is within the limits of any port in India or within the Indian Customs Waters, 12A Such vessel shall be liable to confiscation and the master of such ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. It is not that confiscation automatically must follow. This is the confusion that has been made in this case and to this aspect I shall presently revert. 10. I shall, first of all, deal with the first point, namely, that these provisions for confiscation are ultra-vires because they infringe Articles 19(I)(g) and 14 of the Constitution. So far as Article 14 is concerned, no such ground has been alleged in the petition, nor has any foundation been made to establish any discrimination. So far as Article 19 is concerned, the fundamental rights conferred by Article 19 of the Constitution are only available to citizens of India. The petitioner company is a company incorporated outside India and is certainly not a citizen. Consequently this defence is not open to the petitioner. 11. Article 5 of the Constitution defines citizenship and it is not disputed that the petitioner cannot be deemed to be a citizen of India. In order to meet this point, Mr. Meyer has cited a Bench decision of the Bombay High Court, Yusuf Abdul Aziz v. State of Bombay, AIR1951Bom470 . In that case, the petitioner who was not a citizen of India was charged under Section 497 of the Indian Penal Code. Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental rights as are given only to citizens Articles 15 and 19 are rights which are only granted to citizens, whereas Article 14 applies to all persons whether they are citizens or not. Where a fundamental right is granted to citizens only, it follows that non-citizens have no such fundamental right. Therefore, even if a particular legislation can be called into question by those who have such rights, I do not see how a person who does not possess such a right could call into question the legislation as being void, since it can only be avoided if it affects the fundamental rights of a citizen and not that of a person who is not a citizen. With great respect to the learned Chief Justice, I am unable to accept the proposition that he has so broadly propounded. In any event, it is impossible to accept it in the present case, even assuming that the provisions of law which are impugned are unreasonable restrictions. I do not know how the question of unreasonable restriction arises at all in this case. To put it in another way, a non-citizen, not having any fundamental rights guaranteed under Article 19, cannot say that the particular legislation deals with him unreasonably, or is bad bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on hire, denied any knowledge of this smuggling. It was argued that when the Collector came to the conclusion that the petitioner had no knowledge of and did not participate in this smuggling, he was bound to hold in favour of the petitioner and not to impose any fine at all. It appears, however, that the Collector did not come to any definite finding as to whether the owner had actual knowledge of the smuggling, On the other hand, he did not hold that the petitioner had no knowledge. On the facts, however, he passed an order confiscating the motor car under Section 168 of the Sea Customs Act, 1878 and under Section 183 he gave the petitioner an option to pay a fine of ₹ 2,000/- in lieu of confiscation. I relied on the English case of De Keyser v. British Railway Traffic and Electric Co. Ltd. (1936) 1 K. B. 224 and held as follows : the present case, it may well be that the petitioner had no knowledge of this smuggling, but that is no reason why the offending vehicle or in other words, the vehicle transporting the offending goods, should not be the subject-matter of confiscation under Section 168 . . . . . . Mr. Chatterji has argued that the Court cannot allow an unreas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was resisted by the owners. Lord Hewart, C. J. said as follows : It seems to me that on a true construction of this statute where certain events have happened--and in the present case there is no dispute that those events have happened--the property in question is labelled forfeited under Section 202 ...--What is it that is open to the claimant on such proceedings? In my opinion, nothing more is open to him than to contend, and if need be, to offer evidence to prove, that, on a true view of the facts, the conveyance in question does not come within the class of things which, by Section 202, are forfeited. He may contend with success, for instance, that through error or otherwise a conveyance not liable to be forfeited has been seized. He may say in whatever form is suitable to the relevant facts that the conveyance does not come within the class of things forfeited. But once it is established that the conveyance does come within that class, this undoubtedly rigorous statute gives the claimant no opportunity of asking the Court to take into consideration mitigating circumstances with the effect of removing the conveyance from that class. There is no opportunity for mercy wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with such forfeiture. Section 209 is, however, important and must be set out : 209. Power to restore seizures and mitigate penalties : When any seizure shall have been made or any fine or penalty incurred or inflicted, or any person committed to prison for any offence under the Customs Acts, the Commissioners of the Treasury or Customs may direct the restoration of such seizure, whether condemnation shall have taken place or not, Or waive proceedings, or mitigate or remit such fine or penalty, or release from confinement either before or after confiscation such person on any terms and conditions as they shall see fit. 23. The position under the English Law was, therefore, as follows : If a conveyance was made use of in the importation, removal etc., of prohibited or restricted goods, then the conveyance shall be forfeited. In this respect, the law was obligatory and there is no option given. This, however, is not the last word on the subject because under Section 209, the owner, or person concerned, may urge mitigating circumstances before the Commissioners of the Treasury or Customs who have power to give relief. This aspect of the matter has been brought ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52-A of the Sea Customs Act and the penalty in Section 167 (12-A). Coming to the latter section, we find that the imposition of penalty is not in obligatory terms as under the English law. All that is said is that the vessel shall be liable to confiscation. There is also no provision equivalent to Section 209 of the English Act. What, then, is the meaning of the words shall be liable to confiscation? Mr. Kar argues that it can only mean that if the offence is committed, then the vessel must be confiscated. I do not think that this is a reasonable interpretation. 27. In this connection, two English cases might be cited. One is Grivell v. Malpas (1906) 2 KB 32. In this case, Sub-section 3 of Section 47 of the Public Health (London) Act, 1891 was being considered. It was hold that the words any article liable to be seized meant any article prima facie liable to be seized. The next case is Wickhambrook Parochial Church Council v. Croxford (1935) 2 KB 417. In that case, the word liable as appearing in Sub-section 3 of the Chancel Repairs Act, 1032, was interpreted. Lord Hanworth M. R., held that the word liable meant that a person was imperiled of having something done t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms authorities to consider all mitigating circumstances at the earliest possible moment and to do justice between the parties. From that point of view, there is no prohibition upon the Customs authorities to consider every kind of mitigating circumstance, which will include; a plea on behalf of the owners as to their absence of knowledge and complicity in the commission of the offence and the impossibility, or an enormous difficulty in ensuring a vessel from being tainted altogether and at all times. That being so, let me come to the facts of the present case and consider as to whether the decision of the Additional Collector of Customs in this case is in accordance with this view of the law. 30. The order of the Additional) Collector of Customs with which we are concerned in this case, dated 5-9-1957, is Ex. 'E' to the petition. The Additional Collector of Customs, first of all, gives the facts of the case and delineates the defence taken by the owner. He has rightly held that so far as the offence committed is concerned, the intention of the owners is irrelevant. Upon this point what has been held is as follows : The plain meaning of the text suggests that as soon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52-A or not, is taking too narrow a view of the matter and, therefore, the Additional Collector of Customs obviously fell into the error of overlooking the fact that the other mitigating circumstances like the ones that were put forward on behalf of the owners, could be taken into consideration for the purposes of the imposition of the penalty. I do not say that upon a consideration of such facts the Additional Collector of Customs must necessarily come to a different conclusion in this case. But what has to be ensured is that he has a clear conception of the law on the subject and has exercised his mind and the discretion given to him by law, in a proper manner, This he has failed to do in the facts and circumstances of this case and to the limited extent mentioned above. 33. The last point that was taken is that the imposition of a fine of four lakhs of rupees under Section 183 is not in accordance with law. The argument of Mr. Meyer is that under Section 183 an option to pay a fine in lieu of confiscation can only be given in the case of confiscation of 'goods.' He argues that a vessel cannot be called goods and, therefore, there is no application of Section 183. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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