Judgment

GAJENDRAGADKAR, C.J.I.: This appeal by special leave raises a short question about the true scope and effect of S. 52A of the Sea Customs Act, 1878 (No. 8 of 1878) (hereinafter called the Act ). The appellant, the Indo-China Steam Navigation Co. Ltd., which caries on the business of carriage of goods and passengers by sea, owns a fleet of ships, and has been carrying on its business for over 80 years. One of the routes plied by its ships is the Calcutta-Japan-Calcutta route. An order has been passed by the Customs Authorities confiscating the appellant s motor vessel "Eastern Saga" under S. 167(12A) of the Act, and giving the appellant the option under S. 183 of the paying a fine of Rs. 25 lakhs in lieu of confiscation. The appellant contends that this order has been based upon a misconstruction of the provisions of S. 52A.

2. The vessel "Eastern Saga" has 6,631 gross registered tons, and 4,441 net registered tons. It has an over all length of 475 -2 1/2 " a breadth of 59 3" and a summer draft of 24 7-". It carries a crew of 14 officers and 56 seamen. It appears that the vessel has 119 separate rooms, including 34 crews cabins, 8 passengers cabins, a sailor s mess, a fireman s mess, a compradore s office, a hospital, a boys mess; a ship s office an Engineer s office, a saloon, lounge, pantry, chart-room, radio officer s cabin, captain s cabin, wheel house, alleyways, and stairways. It is clear that the vessel is a well-equipped big vessel. It has also domestic refrigeration compartments which are lined by insulated walls. All crew accommodation in the Vessel has been insulated as required by statutory regulations. Such insulation consists of a sheathing or paneling of fibre board or similar material tacked to wooden frames inserted between the stiffeners jutting out from the steel bulkheads or walls of the said vessel, in consequence of which hollow spaces are left between the panelling and the walls of the vessel. The said panelling or sheathing formed a removable feature or furnishing of the said vessel.

The Eastern Saga arrived at Calcutta from the Far East on October 29, 1957. In the course of its ordinary voyage, as a cargo vessel carrying a legitimate cargo of 24,815 packages of general merchandise weighing 1,506 tons, it was rummaged by Calcutta Customs Officers on the 30th and 31st October and on the 12th November, 1957. On search being made of the vessel s domestic refrigeration compartments, a two-tier white painted shelf was found fixed to the insulated wall of the handing room. The screws which seemed like holding the shelf to the wall, in fact, did not do so; they had been hammered flat and could not be turned by a screw river; the shelf was held by some wooden plugs which had been hidden below a coat of paint; below the shelf, there was a hole in the panelling closed with a plug; this hole gave access to the insulation space of the compartment; it was of the size 7 x 4 1/2 ". Nothing was found hidden in that space.

3. A cabin on the forecastle of the vessel was then searched and two rectangular openings in the cabin wall panelling were discovered behind a steel clothes locker which was screwed to the wall. One of these was closed with a wooden cover. They measured 5" x 13" and 5" x 5" respectively. Nothing was found hidden in either of these two spaces. The cabin marked "Compradores" was also searched, and when a wooden bench which was screwed to the wall panelling was removed, two rectangular holes were found in the panelling behind the bench. These holes which were covered with wooden plugs and overpainted, measured 5" x4 1/2 " and 8" x 2 1/2 ". Nothing was found in these spaces either. The cabin of No. 1 Fitter was then searched and two rectangular holes were found in the visible part of the wall panelling which had been filed in and over-painted; they were respectively 7 1/2 x 10 1/2 " and 12" x 12" in size. Nothing was found hidden in these spaces. That took the searching party to the sailors ac