The penalty of confiscation under Section 167 (12a) of the Sea Customs Act is not obligatory, and the Customs authorities can consider mitigating circumstances, including the absence of knowledge and complicity on the part of the owners, in imposing the penalty.

( 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 and 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 and 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