1. Vessel confiscated under Section 167(12A) of the Sea Customs Act for contravening Section 52A after discovery of hidden compartments used for smuggling gold. (Para 1 , 2 , 3 )
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1964 Supreme(SC) 25
SUPREME COURT OF INDIA
Central Board of Revenue)**
3rd February, 1964.
P.B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, K.C. DAS GUPTA, J.C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.
Indo-China Steam Navigation Co. Ltd., Appellant
Versus
Jasjit Singh, Additional Collector of Customs, Calcutta and others, Respondents.
Civil Appeal No. 770 of 1962. Petn. No. 138 of 1961.
Indo-China Steam Navigation Co. Ltd., Petitioner
Versus
Union of India and others, Respondents.
Civil Appeal No. 770 of 1962 and Petn. No. 138 of 1961.
Advocate appeared
M/s. Sachin Choudhury and B. Sen, Sr. Advocates, (Mr. S. N. Mukherjee, Advocate, with them), for Appellant (In C. A. No. 770 of 1962) and for Petitioner (In Petn. No. 138 of 1961); Mr. S. V. Gupte, Addl. Solicitor-General of India and Mr. D. R. Prem, Senior Advocate, (Mr. R. H. Dhebar, Advocate, with them), for Respondents (In C. A. No. 770 of 1962 and Petn. No. 138 of 1961).
Advocates:
B.SEN, D.R.Prem, R.H.Dhebar, S.N.MUKHERJEE, S.V.Gupta, Sachin Chandra Chawdhury
B.SEN, D.R.Prem, R.H.Dhebar, S.N.MUKHERJEE, S.V.Gupta, Sachin Chandra Chawdhury
Contravention of Section 52A of the Sea Customs Act, 1878, does not require mens rea; the prohibition is absolute against any vessel altered for concealing goods. Furthermore, appellate and revisional authorities under the Act are "Tribunals" within the meaning of Article 136 of the Constitution.
Headnote:(A) Sea Customs Act, 1878 - Sections 52A, 167(12A), 183, 188, 190, 191 - Constitution - Article 136 - Whether appellate and revisional authorities under the Act constitute a Tribunal - Held: Authorities exercising appellate and revisional powers are Tribunals under Article 136 as they are invested with the judicial power of the State and required to act judicially, considering disputes on merits and in accordance with law. (Paras 11, 18)
(B) Sea Customs Act, 1878 - Section 52A - Mens rea - Whether knowledge of the owner or master is essential to establish contravention - Held: The prohibition under Section 52A is absolute and concerns the vessel itself. If a vessel is constructed, adapted, altered, or fitted for the purpose of concealing goods, it contravenes the section regardless of the mens rea of the owners or the master. (Paras 22-26)
(C) Sea Customs Act, 1878 - Section 167(12A) and 183 - Confiscation and Option of Fine - Whether the authority has discretion to refuse confiscation - Held: Confiscation is the immediate statutory consequence of a contravention under Section 167(12A) and is mandatory. However, Section 183 obligates the officer to provide the owner an option to pay a fine in lieu of confiscation, and the determination of the fine amount is discretionary. (Paras 29-30)
(D) Sea Customs Act, 1878 - Section 52A - Definition of Vessel - Whether wall paneling constitutes part of the vessel - Held: Paneling is an integral part of the vessel; any alteration made to it for concealing goods attracts the provisions of Section 52A. (Para 28)
Facts of the case:
A vessel was found to have several unauthorized holes in its wall paneling, one of which contained a large quantity of gold bars. The vessel was confiscated for contravening the prohibition against vessels altered for concealing goods, and the owners were given an option to pay a substantial fine in lieu of confiscation.
Findings of Court:
The vessel contravened the statutory prohibition. The appellate and revisional authorities are tribunals. Mens rea is irrelevant for the contravention of the specific section. Confiscation is mandatory, but the option for a fine is a statutory requirement. The fine imposed was not excessive.
Issues: 1. Whether the appellate and revisional authorities under the Act are Tribunals under Article 136. 2. Whether mens rea is a necessary ingredient for an offence under Section 52A. 3. Whether paneling is part of the vessel. 4. Whether the authority has discretion to waive confiscation under Section 167(12A).
Ratio Decidendi: The court held that the prohibition under Section 52A is absolute and focuses on the physical state of the vessel rather than the intent of the owners. The mandatory nature of confiscation under Section 167(12A) is balanced by the mandatory requirement under Section 183 to offer a fine in lieu of confiscation. Authorities exercising these powers are Tribunals as they perform quasi-judicial functions.
Result: Appeal and writ petition dismissed.
Legal Category Hierarchy
- customs law
- constitutional law
- administrative law
Table of Contents
2. Whether Customs appellate and revisional authorities are Tribunals under Article 136; whether Section 52A requires mens rea; whether internal paneling constitutes part of a vessel. (Para 8 , 20 , 27 )
3. Appellate and revisional authorities exercise judicial power; Section 52A imposes absolute prohibition to curb smuggling, making owner's knowledge irrelevant; paneling is an integral part of the vessel. (Para 11 , 18 , 22 , 24 , 25 , 26 , 28 )
4. Contravention of Section 52A is a strict liability offence; the vessel's physical adaptation for concealing goods suffices for confiscation regardless of the owner's or master's knowledge. (Para 24 , 25 , 26 )
5. Appeal and writ petition dismissed; order of confiscation and the option of fine upheld. (Para 35 , 36 )
6. When is an administrative authority considered a Tribunal under Article 136 of the Constitution?
An authority is a Tribunal if it is constituted by the legislature, conferred with the State's inherent judicial power, and required to act judicially, considering evidence and merits rather than policy or expediency. (Para 11 , 12 , 18 )
7. Is mens rea an essential element for a contravention of Section 52A of the Sea Customs Act?
No. Section 52A creates an absolute prohibition against vessels fitted for concealing goods. The absence of words like knowingly or wilfully in Section 167(12A) indicates that the owner's or master's knowledge is irrelevant. (Para 22 , 24 , 25 , 26 )
8. Does internal paneling or lining of a ship constitute part of the vessel under the Sea Customs Act?
Yes. A vessel includes anything made for the conveyance of humans or property. Once paneling is constructed, it becomes an integral part of the vessel, and alterations to it attract Section 52A. (Para 27 , 28 )
9. Is the Customs Authority obliged to confiscate a vessel under Section 167(12A) if a contravention is proved?
Yes, confiscation is the immediate statutory consequence. However, under Section 183, the officer must provide the owner an option to pay a fine in lieu of confiscation, which is discretionary. (Para 29 , 30 )
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 a
