D.N.Sinha, J. - (1.) The facts in this case are shortly as follows: The petitioner, the Everett Orient Line Incorporated, is stated to be a Company incorporated under the laws of Liberia, having its registered office at Monrovia in Liberia and its principle office at 310, Sansome Street, San Francisco in the United States of America. No one seems to know where Liberia is situate or Monrovia. While it is not possible to say that they do not exist, it seems that considerable mystery surrounds their location. The Company carries on business in India through its Agent, the Everett Steamship Corporation, which has its office at No. 35, Royal Exchange Place (Extension), Calcutta. The Company owns a number of ships and has been carrying cargo between Japan and Calcutta via all important ports in Far East and Burma. One of the vessels belonging to the petitioner Company, and with which we are concerned in this case, is M/V "Rebeverett". The vessel, in its voyage No. 41, departed 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 packets were found 132 bars of gold weighing approximately 2117 Tollas 1 anna 1 pie valued at Rs. 2,11,700 approximately, involving duty amounting to Rs. 31,755/- approximately. These gold bars were not declared in the store list or in the list of private properties of the vessel, as required under the law. Neither the recess nor the opening are shown in the official plan of the ship. On the finding of these 132 bars of gold, a Mess boy Ma Tseng Shing came forward voluntarily and made a confessional statement to the Customs Officers before the Master of the vessel admitting that the gold was brought on board by him for smuggling into India. He later on retracted this confession. On 24-8-1957 a show cause notice was issued by the Assistant Collector of Customs find Superintendent, Preventive Services, to the owners of the vessel, a copy whereof is annexure 'C in the petition. It was Inter alia pointed out that the presence of the recess specially constructed by removing part of the insulation of the roof of the meat room of the domestic reefer compartment was for the purpose of concealing contraband gold & in which in fact gold was actually found concealed constituted an offence under Section 52A of the Sea Customs Act and was punishable under Section 167 (12A). Sea Customs Act, which rendered the vessel itself liable to confiscation. The owner was called upon to explain and show cause why the gold should not be confiscated and penal action taken against him under Section 167 (8) of the Sea Customs Act read with Section 23 A ( Foreign Exchange Regulation Act. 1947 & under Section 167 (16) and (37) of the Sea Customs Act, and why the vessel should not be confiscated under Section 167 (12AJ of the Sea Customs Act for contravention of the provisions of Section 52A of: the said Act. The petitioner showed cause. The stand taken by it was that its owners knew nothing about any construction or modification of the ship for the purposes of concealment of contraband gold, nor did they know or were concerned with the smuggling thereof. So far as the owners were concerned, it was alleged that they took all possible precautions to stop any kind of smuggling of contraband goods. It was pointed out that strict instructions have been given to Masters to make searches during the voyage, prior to every departure and arrival from or to any port, and that in fact such searches 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 Rs. 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 order and/or why the amount paid should not be refunded to the petitioners and for other Writs. Before me also the same stand is taken by the petitioners as they took before the Additional Collector of Customs. It is stated that the petitioner Company had taken every precaution that could possibly have been taken by the owners to prevent any smuggling or any contravention of the provisions of the Sea Customs Act. In spite of all reasonable precautions, some criminals had surreptitiously constructed a place of concealment and had smuggled goods on board. It is alleged that if a search party of 8 persons went on searching the vessel continuously for 8 hours a day, it would take no less than 40 days to cover the ship on each occasion, if it was expected that such surreptitious actions should be discovered. Under the circumstances it is alleged that the order that has been made for confiscation of the vessel, and a fine imposed in lieu thereof is excessively severe and further that it is in contravention of the law. As far as the severity of punishment is concerned that I think cannot be decided in this jurisdiction. If the Customs Officers are within the bounds of the law then it is their discretion and not mine which must be exercised to suit the punishment to the offence. It will, however, be necessary to consider whether the order is otherwise in accordance with law. I might mention here that the only part of the order which is challenged before me is the order of confiscation of the vessel and the fine of four lakhs imposed in lieu thereof. Neither the confiscation of the unclaimed gold, nor the other parts of the order are challenged.
(2.) Mr. Meyer on behalf of the petitioner has taken the following points: (1) Section 52A of the Sea Customs Act, 1878 read with Section 167 (12A), in so far as it renders a vessel liable to confiscation, is ultra-vires, as constituting an unreasonable restriction on the right of shipowners to carry on their trade and business, and infringes the provisions of Article 19 (1) (g) and Article 14 of the Constitution. (2) That the Additional Collector of Customs has committed an error inasmuch as he has come to the conclusion that the only mitigating circum stances that can be considered in such a ease must be in defence of the vessel, and not of the owners thereof, and in holding that the complicity or know ledge of the owners in 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.;