1. There are three petitioners in this Rule. Petitioner No. 2 is a New Zealand Company, carrying on the business of carriage of goods and passengers by sea and owning, amongst other vessels, a cargo ship called "M.V. Wairimu", Petitioner No. 3 company are the Calcutta agents of petitioner No. 2 and petitioner No. 1 is the Master of the vessel "Wairimu".
2. On February 14, 1963, M.V. Wairimu arrived at the port of Calcutta on her voyage from Auckland, via ports in the Far East. After her arrival and berthing at No. 2 G.R. Jetty, Calcutta. Customs Officers kept guard over her and rummaging of the ship commenced on February 15, 1963 and continued upto February 23, 1963. In course of rummaging, large quantities of prohibited goods, such as, transistor radios, wrist watches, fountain pens, cosmetics and other consumers' goods were recovered from various parts of the ship.
3. Thereafter, a number of notices were issued to petitioners Nos. 2 and 3, calling 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 Rs. 1,07,000/-.
(2) Notice No. S12(iv) 178/63P dated 23-2-1963 covering recovery pf consumers' goods valued at Rs. 1,10,000/-.
(3) Notice No. S12(iv) 188/63P dated 23-2-63 covering recovery of consumers' goods valued at Rs. 339.50.
(4) Notice No. S12(iv) 223/63P dated 22-3-1963 covering recovery of consumers' goods valued at Rs. 241.40 (market price. Rs. 751).
(5) Notice No. S12(iv) 223/63P dated 22-3-1963 covering seizure of consumers' goods valued at Rs. 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 the engine room and hatch No. 5, packed in gunny bags; the goods covered by the Notice, dated February 23, 1963, were recovered from the ice and meat chamber of the thaw room; the goods covered by the second notice, D/- February 23, 1963, were found inside the plate covering the bilge separator in the workshop of the engine room; the goods covered by notice, dated March 22, 1963, were found partly on the top of the engine beam, partly in the tunnel in engine room and partly in the blower pipe in the tunnel of the engine room; and the goods covered by the second notice, dated March 22, 1963, were recovered from the manhole of one of the cofferdam tanks near the portside forehead of the main engine.
6. After receipt of the notices to show cause, petitioner No. 3 company, acting on their own behalf as well as on behalf of petitioners Nos. 1 and 2, submitted the following documents, by way of cause shown.
(A) An affidavit of Mr. Mohie Ranjan Das, Managing Director of petitioner No. 3, affirmed by him on March 28, 1963.
(B) A declaration by the petitioner No. 1, Master of the vessel, before a Notary Public in Colombo on March 2, 1963.
(C) A declaration by Mr. Keith Allexander Belford, the Industrial Superintendent of the petitioner No. 1, signed by him before the High Commissioner for India in Wellington, New Zealand, on April 1, 1963.
By the said affidavit and declarations, petitioners Nos. 1, 2 and 3 contended that every reasonable precaution had been taken by all concerned so as to ensure that nobody carried on any smuggling or private trade from or in "M.V. Wairimu". It was further contended that none of the goods, which were the subject-matter of the said notices, belonged to the petitioners or to any of them and that they were not answerable therefor. It was also contended that prior to their discovery and seizure by the Customs authority, none of the petitioners had any knowledge that the goods were on board the ship, secreted in various parts thereof. Nor did they have any reason to suspect that any one was bringing such goods on board the said ship and was secreting them for the purpose of smuggling. It was submitted that the manner in which the Roods were hidden in various parts of the ship clearly showed that the guilty person or persons concerned adopted every possible ingenuity to 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 petitioner No. 2 at any Intermediate port of call. Nevertheless, respondent No. 1 held that the petitioner No. 1. Master of the vessel was guilty of the offences under Section 111(f) read with Section 112 of the Customs Act in respect of the goods covered by all the several notices. excepting Notice No. Sl2(iv) 178/63P dated 21-2-1963, and imposed on the said Master a personal penalty of Rs. 1,00,000/- (Rupees one lakh) under Section 112(a)(i) of the Customs Act. The reasons for imposing the personal penalty on the Master was:
"I, however, hold the Master liable for action under Section 112 of the Act. The goods seized by the Customs Officers are clearly dutiable and prohibited. It was the duty of the Master to declare the goods in the Manifest. The Master cannot be absolved of his liability in the present case merely on the ground that he was ignorant about the existence of these goods on board the vessel. It is evident in the present case that due diligence for ensuring that all that was on board was declared in the Manifest was not exercised."
Aggrieved by the imposition of the personal penalty upon the Master, the petitioners moved this Court, under Article 226 of the Constitution, and obtained this Rule.
10. It is necessary for me to remind myself that the petitioner No. 1 was charged under Section 112(a) read with Section 111(f) of the Customs Act The material portion of the said two sections are hereinbelow quoted:
(a) who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under Section 111, or abets the doing or omission of such an act, or
* * * * *
(i) in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty not exceeding five times the value of the goods or one thousand rupees, whichever is the greater;
(ii) in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding five times the duty sought to be evaded on such goods or one thousand rupees, whichever is the greater." Section 111(f). The following goods brought from a place outside India shall be liable to confiscation:
(a) to (e) * * *
(f) any dutiable or prohibited goods required to be mentioned under the regulation in an import manifest or import report which are not 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) defines "prohibited goods" as:--
"Prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such Roods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with;
Section 2(24) defines "Import manifest" as v
"Import manifest" or "import report" means the manifest or report required to be delivered under Section 30. Section 30 referred to in Section 2(24) reads:
"(1) The person-in-charge of a conveyance carrying imported goods shall within twenty-four hours after arrival thereof at a customs station, deliver to the proper officer, in the case of a vessel or aircraft, an import manifest, and in the case of a vehicle, an import report, in the prescribed form:
(a) in the case of a vessel any such manifest may be delivered to the proper officer before the arrival of the vessel;
(b) If the proper officer is satisfied that there was suffcient cause for not deliver' Ing the import manifest or import report or any part thereof within twenty-four hours after the arrival of the conveyance, he may accept it at any tune thereafter.
(2) The person delivering the Import manifest or import report shall at the foot thereof make and subscribe to a declaration as to the truth of its contents.
(3) If the proper officer is satisfied that the import manifest or import report is in any way incorrect or incomplete and that there was no fraudulent intention, he may permit it to be amended or supplemented."
The word "prescribed", mentioned in Section 30. is defined in Section 2(32) as: "Prescribed" means prescribed by regulations made under this Act: The word "person-in-charge" also referred to in Section 30, as defined in Section 2(31) is:
"Person-in-charge" means--fa) in relation to a vessel, the master of the vessel;
(b) ** * **
(d) * ** **
It is noteworthy that the "Import manifest", mentioned in Section 30, is in respect of imported goods only, that is to say goods brought into India from a place outside India. There is no dispute In the instant case, that there was an import manifest delivered by the Master of the vessel but the seized 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 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 whether contravention of Section 52A of the Sea Customs Act 1878 could be established, unless mens rea was proved in respect of alleged contravention. Section 52A, I need remind myself, stood couched in the following language:--
"Any vessel constructed, adapted, altered or fitted for the purposes of concealing goods shall enter or be within the limits of any port in India or the Indian Customs waters".
14. Contravention of Section 52A was punishable with confiscation of the vessel, under Section 167 (12A) of the Sea Customs Act The Supreme Court held that in order to establish the contravention of Section 52A of the Sea Customs Act mens rea need not be proved, the knowledge of the owners or even of the Master was, in the context of Section 52A. being entirely irrelevant. What was relevant, according to the Supreme Court was that a vessel answering description prescribed by the section entered within limit of an Indian Port. Where it was found that certain constructions, adaptation or alterations were carried out in a ship for the purpose of concealing goods, the mere fact that the Master or the owners of the vessel were not shown to be privy to such alterations etc. would not be, according to the Supreme Court, sufficient to exclude the operation of Section 52A. The Supreme Court further clarified the position by observing:
"(22) On the other hand, the scheme of Section 167 supports the contention of the Additional Solicitor-General that if we read Section 52A along with Section 167 (12A), it would be clear that the legislature intends, by necessary impli cation, the exclusion of mens rea in dealing with the contravention of Sec tion 52A. Section 167 (12A) provides that if a vessel constructed, adapted, al tered, or fitted for the purpose of con cealing goods under Section 52A, enters or is within the limits of any port in India or within the Indian Customs waters such vessel shall be liable to con fiscation and the Master of such vessel shall be liable to a penalty not exceed ing Rs. 1,000/-. It would be noticed that in Column 1, Section 167 (12A) reproduces the material words of Section 52A and does not add the words "knowingly or wil 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. 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 the anomaly just indicated, while the other does not and helps the effectuation of the intention of the legislature, it would be the duty of the Court to accept the latter construction.
(24) The intention of the legislature in providing for the prohibition prescribed by Section 52A is, inter alia, to put an end to illegal smuggling which has the effect of disturbing very rudely the national economy of the country. * ** **
If it was held that the knowledge of the owners of the offending vessel or of its master should be proved before Section 52A is held to be contravened, in a majority of cases, the offending vessels will escape punishment. It is not difficult to imagine that mens rea or guilty mind could rarely be established against the owners of vessels which are travelling on the high seas and it may not be always easy to prove the guilty knowledge even of the master of the ship. * ** ** Therefore, it seems to us plain that if we are to accept the construction suggested by Mr. Choudhury mens rea would rarely be proved against the owners of the vessel, or even its master and the section in substance, would remain a dead letter on the statute-book.
(25) In this connection, it is necessary to bear in mind that as the heading of the Chapter shows, what Section 52A aims at is the entry of the vessels and that, in fact, is the manner deliberately adopted by the legislature in prescribing the prohibition. It is the entry of the vessel that is prohibited and the use of the negative form adopted by the legislature in enacting Section 52A is intended to show that the prohibition is not concerned with the owner of the vessel or the master, the prohibition is concerned with the vessel itself and it provides that a vessel is prohibited from entering the limits of any port in India or the Indian Customs Waters, or remaining there, provided it answers the description mentioned in the first part of Section 52A.
(26) The only safeguard which is legi timately available to the vessel in resist ing the charge that it has contravened Section 52A is provided by the require ment that the alleged alteration, for in stance, must be shown to have been ini 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 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 "import" (as in Section 2(33)) and of "imported goods" (as in Section 2(25)) do not add the words "knowingly or wilfully" before the words "bringing" or "brought" into India, as was done in some other provisions of the Sea Customs Act, for example, as in Sections 167 (14) and 167 (61). Does this indicate that the legislature did not want to introduce knowledge or intention as an essential element of the offence? Can it be said that one does not bring anything or nothing can be brought by him, unless he knowingly or wilfully does so. I do not think that the sweep of the meaning of the word "bring" or "brought" can be so narrow as that. One may bring infection of a disease in his family without ever intending to carry the same and may also bring misfortune upon himself without knowing or intending so to do. Thus, although the prohibited goods may have been carried in the vessel without the knowledge of petitioner No. 1, the fact that they arrived in India by the vessel from a place outside, stamp upon the goods the character of imported goods. This is so even though the person or persons responsible for the importation was or were other than the petitioners. If the goods were imported goods, as I hold they were, then their inclusion in the import manifest was obligatory on the part of the Master of the vessel, regard being had to the plain language of Section 30 of Customs Act, which does not make any exception for any kind of imported goods, even though unknowingly carried or brought to India. But then the question arises as to how can a Master of a vessel include, in the manifest, goods, about the existence of which he had no knowledge and which were so cleverly secreted by smugglers that it required the full ingenuity of the rummaging department of the Customs to discover them. To hold that because of this difficulty, the failure to include the imported goods in the Manifest would not attract the mischief of Section 30 read with Sections 111 and 112, may be to resign oneself to clandestine importation of huge quantity of prohibited goods in India, which the Government 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 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 India impossible, should be avoided.
16. I need not, however, go to the length of holding that mens rea has no place in interpreting Section 30 read with Sections 111 and 112 of the Act, because I find another infirmity in the order of penalty, on which alone I intend to proceed in this case.
17. In this case, the vessel was let off and not confiscated because the charge under Section 115(2) could not be established against the vessel. Now, Section 115(2) reads:
"Any conveyance or animal used as a means of transport in smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules;
Provided that where any such conveyance is used for the carriage of goods of passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market price of goods which are sought to be smuggled goods, as the case may be." The letting off of the vessel establishes the proposition that the Master of the vessel was not aware of the fact that the vessel was being used for smuggling of prohibited and dutiable goods and that such a thing was being done although he had taken all precautions against such misuse of the vessel. The finding of respondent No. 1 against petitioner No. 1 is not that the latter was privy to the illicit importation or that he had knowledge of the importation of prohibited and dutiable goods in a clandestine manner by the vessel. All that was found against petitioner No. 1 that he did not exercise due diligence for ensuring that all goods on board were declared in the manifest. On the above finding, the provision of Sub-section (3) of Section 30, which I have hereinbefore quoted, stands attracted. In this case, the respondent 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 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 persons who were responsible for such illegal Importation may be otherwise penalised but the Master of the vessel may be saved from the consequences of an incorrect Manifest, if his case falls under Sub-section (3) of Section 30 of the Act.
19. I now take up for consideration the other branch of the argument, namely, that non-prescription of regulation under Clause (f) of Section 111 made the said Clause unworkable. The argument does not appeal to me. Section 160(3) of the Customs Act, 1962 reads:
"Notwithstanding the repeal of any enactment by this section'--
(a) any notification, rule, regulation, order or notice issued or any appointment or declaration made or any licence, permission or exemption granted or any assessment made, confiscation adjudged or any duty levied or any penalty or fine imposed or any forfeiture, cancellation or discharge of any bond ordered or any other thing done or any other action taken under any repealed enactment shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provision of this Act;
(b) any document referring to any enactment hereby repealed shall be construed as referring to this Act or to the corresponding provision of this Act."
20. Now Clause (f) of Section 111 of the Customs Act, 1962 corresponds to Section 167 (35) of the Sea Customs Act, 1878, Section 30 of the Customs Act, 1962 corresponds to Sections 53, 54, 54A and 55 of the old Act of 1878. Section 53 of the old Act prescribes the contents of Manifest and how the same is to be signed or amended. So long as regulations under the new Act be not prescribed the form manifest under the old Act is to continue in force. Section 111(f) is thus not wholly unworkable as contended for on behalf of the petitioner.
21. The substance of my finding is that mens rea may not be an element in Interpretation of Sections 30. 111, 112 of the Customs Act The responsibility to submit a correct return or to suffer the consequences of an incorrect return may be a strict liability of the Master of the vessel. Notwithstanding all these, the statute provides one safeguard for the Master, namely, if he is an innocent victim of an error in a case where goods have been clandestinely imported in his vessel without his knowledge, he may be permitted, on discovery of such importation. to amend the Manifest and thereby escape the penalty. If, however, he refuses to amend then of course the consequences of filing an Incorrect Manifest must visit him.
22. In the result, I quash the Impugned order to this extent that the imposition of a personal penalty of Rs. 1,00,000/-(Rs. one lakh) upon the Master, petitioner No. 1, shall stand set aside and quashed. The rest of the order is not interfered with in any way.
23. This Rule succeeds to the extent Indicated above. I, however, make no order as to costs.
24. Let a writ of certiorari accordingly issue.