- (1.) THIS appeal has been preferred against the judgment and order of B. Banerjee J dated May 23, 1969 on a writ petition, setting aside the impugned order of the Collector of Customs dated May 25, 1963, whereby the respondent No. 1 was asked to pay to the appellant a sum of Rs. 1,00,000/ - as penalty under Section 112 of the Customs Act, 1962. The facts of the case may briefly be stated as follows: the Union Steamship Co. of New Zealand, the respondent No. 2, carried on the business of carriage of goods and passengers by sea. One of the ships belonging to the said Steamship company was named M. V. "wairimu". Ms. Mackinnon and Mackenzie Pvt Ltd, the respondent No. 3 of premises No. 16, Strand Road, Calcutta acted as the steamer agents at the port of Calcutta for the ships of the said Steamship company. The respondent No. 1 was the Master of the said ship who on February 14, 1963 brought the said ship and cargo at the port of Calcutta from wellington after calling at several intermediate ports. After the arrival of the said ship at the port of Calcutta the Custom Officers examined the cargo of the said ship and discovered large quantities of contraband goods such as transistors, radios, wrist watches, fountain pens, cosmetics and other consumer goods. After several notices dated February 21st, 1963, February 23, 1963 and March 22, 1963 the respondents were called upon to show cause why the said goods and the ship should not be confiscated under Section 111 and Section 115 of the Customs Act, 1962, and also why penalty should not be imposed on the Master of the ship under Section" 112 of the said Act. By affidavits and declarations the respondents denied any knowledge of ownership of the said goods and also the existence of the same in the said ship. The said goods were kept concealed in such a way that the master of the said ship would not be reasonably expected to have any idea about the said contraband goods. It has also been stated that the Master and all the officers has taken all reasonable precautions to prevent smuggling of those contraband goods. On may 21, 1963, Mr. S. P. Srivastava the then Collector of Customs gave a hearing to the respondents and | or their agents and on May 25, 1963, the said collector of Customs passed the order no. 38 in respect of the charges in the notices giving his reasons for his decision. The order was communicated to the respondent on June 27, 1963. By the said order it was held that the said ship was not liable to confiscation under Section 115 (2) of the said Act. The Collector of Customs, however, held the Master to be guilty of the offence under Section 112 of the Act and accordingly imposed upon the latter a personal penalty of Rs. 1,00,000/- under section 112 (a) (i) As the Customs authorities could not allow the said ship to leave the Calcutta port until the payment of the said penalty was made by the Master, the said sum of rs. 1,00,000/- was paid. Thereafter, the ship left the port of Calcutta. On november 9, 1963, the Master filed an application under Arts. 226 and 227 of the Constitution for setting aside the said order No. 38 dated May 25, 1963. On April 23, 1968, Banerjee J. set aside and quashed that part of the order which imposed the said penalty of rs. 100,000/- On May 2, 1969 the present appeal was filed against the said order of Banerjee J.
(2.) ADMITTEDLY, the Collector or Customs has held that the said ship has not become liable to confiscation under section 115 of the said Customs Act. There is also no dispute that the goods seized by the Customs Officers are dutiable and prohibited. It is also obvious that in the course of rummaging of the ship the contraband goods were seized under very suspicious circumstances in four sizeable gunny bags in the Engine Room of the vessel which did not bear any mark or number, whatsoever nor have they been declared in Import General Manifest or stores List or Personal List or any other ship's paper. These bags contained, inter alia, 500 pieces Nelson wrist Watches, 1740 pieces Lipsticks, 3599 pieces Watch Bands, 20 pieces Mini sharp Stereophone Transistor Radios and a tape recorder Transistors radio. Similarly, from the Ice and Meat Chambers of the Thaw Room on board the ship similar goods were found out. The key to the lock of the Thaw Room was produced by Mr. W. H. Thayne, chief Cook. The Customs Officers also opened the plate of bilge separator situated in the workshop of the Engine room and brought out several card boxes and 18 bottles of After-shave lotion, 15 Koda Colour Films, M. T. Radio case's and M. T. Camera cases were found, besides Movie Camera, still Camera Nylon fabrics, fountain pens, many other dutiable and apprehended goods were seized. For obvious reasons everybody in the ship denied the existence or ownership of the said goods nor were they claimed by any person. Consequently, the collector of Customs by the impugned order dated May, 25, 1963 confiscated them. By the said order, however, the collector of Custom held the Master of the ship guilty of the offence under section 112 of the said Act and imposed on the Master a personal penalty off Rs. 100,000/- under Section 112 (i)of the said Customs Act. The question to be decided, therefore, is limited to the short point whether in the facts; and circumstances of this case that part of the order imposing personal penalty of Rs. 1,00,000/- can be sustained under the provisions of the law in force between February 15, 1963 and february 23, 1973.
(3.) THE material provisions of Section 112 of the Customs Act, 1962 read as follows: "112. Penalty for improper importation of goods, etc. Any person - (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 (b) who acquires possession of or in any way is concerned in carrying, removing, depositing, harboring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111, shall be liable " (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) The penalty imposed under this Section obviously attracts any person which must include the Master also in relation to any act or omission which would render such goods liable to confiscation under Section 111. The relevant provisions of Section 111 are stated as follows : "111. Confiscation of improperly imported goods, etc. The following goods brought from a place outside India shall be liable to confiscation - (d) Any goods which are imported or attempted to be imported or are brought within the indian Customs water for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force ; (e) Any dutiable or prohibited goods found concealed in any manner in any conveyance ; (f) Any dutiable or prohibited goods required to be mentioned under the Regulations in the Import Manifest or Import Report which are not so mentioned ; (i) Any dutiable or prohibited good found concealed in any manner in any package either before or after the unloading thereof ; "thus, imposition of penalty under section 112 (i) can be made if the Master against whom the penalty has been imposed has done or omitted to do anything which would make the goods liable for confiscation under Section 111 (d ). (e), (f) and (i ). ;