TMI Blog1997 (4) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... searched the person of the said Harnani B. Villanueva which resulted in the recovery of one piece specially made cloth waist belt worn by him around his waist beneath the under-garments and one piece of hand written document from inside right leg shoe worn by him. One visiting card, one pocket telephone diary and one temporary permit issued in his favour by Calcutta Port Trust were also recovered. All these recoveries around the suspicion of the officers that this person was engaged in dealing with some contraband which he however denied any such dealings. On prolonged interrogation the above named Radio Officer admitted of having some gold biscuits kept concealed inside a space in the controller of Radio Transmitter fixed in the radio room which was under his control. Accordingly the customs officers after unscrewing the bottom part of the controller of the radio transmitter recovered seven packets wrapped with adhesive tapes kept concealed in the empty space inside the said controller. On opening the aforesaid recovered packets, the officers found seventy pieces of gold biscuits having foreign inscription, with their total weight being 8.2 kgs. (approx) and valued at Rs. 41,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores (with which we are not concerned in this case) the grantor had deposited with the Commissioner of Customs (Preventive) a sum of Rs. 2,00,000/- (rupees two lakhs) in cash and had furnished a bank guarantee of Rs. 3,00,000/-(rupees three lakhs) from the Standard Chartered Bank, Calcutta. The prescription regarding the appropriation of Rs. 5,00,000/-(rupees five lakhs) therefore was as a result of the aforesaid deposit of Rs. 5,00,000/-(rupees five lakhs) made by the grantor in favour of the respondents. We are concerned with the interpretation and application of two clauses in the bond, one relating to the deposit of Rs. 5,00,000/-(rupees five lakhs) and the other to the right of its appropriation by the customs authorities. The clause relating to the deposit reads as under : "And whereas the said vessel used as Feeder Vessel between Singapore/Calcutta/Singapore, I/We have applied to the Commissioner of Customs, Calcutta for the release of the said Vessel pending investigation and have deposited with the Commissioner of Customs (Preventive) a sum of Rs. 2,00,000/-(Rupees two lakhs only) and a Bank Guarantee by Standard Chartered Bank, 4, N.S. Road, Calcutta-700 001, in favou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of gold has not been established. The Division Bench of Bombay High Court in the Nogul Lines Ltd. case (supra) had held that on a plan reading of sub-section (2) of the Section 115 it is clear that what the owners of the vessel or a ship has to show in order to avoid confiscation is that it was used as means because of transport in the smuggling of goods without its knowledge or connivance or the knowledge and connivance of the master of the vessel. Single judge of the same High Court had held similar view in Indoceanic case cited above. Manner in which the gold had been concealed by the Radio Operator and also in view of his admission it can be concluded that both the Master and Owner of the vessel have demonstrated in the facts and circumstances of the case that neither of them had knowledge or connivance in the Ship being used for transporting smuggled gold." 6.The dispute in this petition is with regard to the adjustment of the penalty of Rs. 5,00,000/- (rupees five lakhs only) by its appropriation from the amount secured in the bond executed on 12th July, 1995 by the petitioner. The petitioner says that it never made itself liable or obliged to pay any penalty or fine wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring in clause 3 are indeed of wide amplitude and could cover the penalty, even it was imposed upon the radio officer. Such of course, however, is not the position in this case. 10.If the bond is read as a whole, it will clearly transpire and it will be very apparent on the face of the bond itself that the grantor had executed the bond for and on behalf of the owner and the master of the ship and not for anybody else. Every single clause forming the recital part of the bond or its preamble clearly suggests that the grantor had executed the bond only for and on behalf of the owner and the master of the ship and that the amount deposited was to be applied only for the purposes which were mentioned in the bond. A very important part of the bond is constituted by three clauses, namely (a), (b) and (c) which have also been extracted in the earlier part of the judgment. All these clauses clearly suggest that the bond was executed only if any liability was fastened upon the master or the owner for any act that they might have done and for which the adjudicating officer would have found them liable or if liability would have been fastened in respect of the movement of the ship or its en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer. Everyone, directly or indirectly related to the ship had totally disowned their liability or their being involved in the act of smuggling. The radio officer was apprehended for smuggling of gold biscuits in his individual capacity. The final adjudication order also has clearly and unequivocally held the radio officer to be guilty of smuggling. By adopting a detailed reasoning process, the adjudicating officer has totally absolved the owner or the master of the vessel with anything to do with the smuggling in question. If in this background, for some reasons or the other, the ship was detained for sometime and later on released by the custom authorities, because the gold biscuits was recovered from the ship, even though from the person of the radio officer on board the ship, the owner and the master of the vessel of the ship naturally were asked to furnish a bond, if ultimately it was ever found that the ship, its owner or the master were involved in any manner with the smuggling activity. After all a ship was allowed to be released, after being detained because gold was recovered from the ship and if for such release a bond was executed, the purpose was only to ensure tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
