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TMI Blog1998 (6) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... ment made by Karim that he was given the gold by a member of the crew of "Kota Naga", he was taken to the ship to enable him to point out the crew member which he failed to do. DRI carried out investigation and issued notices to Karim, Jayram Kalian and Abdul Salam, the persons on motorcycle, proposing confiscation of the gold and imposition of penalties under Section 112. Notices were also issued to the appellants before us. One of these, is the owner of the vessel Kota Naga (appellant in appeal C/368/95) and its agents James Mackintosh & Co (appellant in appeal C/369/95). Each of the other six appellants was, at the relevant time, either Deputy Manager or Assistant Manager of the Bombay Port Trust (BPT). 2. In his order, the Collector, apart from ordering confiscation of the gold, and imposing penalties on Karim, Jayram Kalian and Abdul Salam, also imposed penalties on the eight appellants before us. Confiscation of the gold is not questioned and appeals have not been filed by other persons who could be aggrieved by the order than these eight. 3. The present appeals are against imposition of penalties on the appellants before us and confiscation of the ship MV "Kota N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show the existence of personal knowledge. 8. The Departmental Representative supports the reasonings in the impugned order of the Collector. 9. The Collector has, in effect, accepted that none of these appellants was personally concerned with, or even aware of, the fact that Karim and his associates gained access to the dock in order to remove smuggled gold. He says "It may be true that some of the officers in charge of Hamalage section to whom show cause notices have been issued may not have direct nexus with the present case of gold smuggling detected" and repeats this view in different words elsewhere in his order. He then goes on to say that the basis for his action is that the omissions and acts of commission of the officers in charge of the hamalage section which permitted entry of Karim and others into dock without which the gold could not have been smuggled and that therefore penalty is imposable. He asserts that "it is not necessary to apportion personal liability and direct nexus with the smugglers". He relies heavily on the statements of persons that gold has been smuggled by them in the past. He makes various observations on what he finds to be the system a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on their part or even collectively but because of what he finds to be the inefficiency of the Port Trust or negligence of the functioning of the system. 11. It is not without reason that the Commissioner of Customs in every major port is, by virtue of his office trustee of the port in question. The Commissioner could, and if he felt it necessary should have taken with the Chairman and other trustees of the Port the matter of improvement of procedures. 10. We would like to emphasise to the Commissioner and other authorities competent to impose penalty, that imposition of penalty is an act that has serious consequences. It, at the very least, imposes financial burden. It also casts doubt on the character or on the conduct on the person on whom penalty under Section 112 is imposed. In case like the present it could have grave consequences with regard to matters of promotion or appointment. To impose penalty on the basis of negligence under a provision of a statute which specifies or implies personal knowledge of, conscious involvement in smuggling is to substitute one to personal judgement for the requirement of the law. 13. Indeed, we fail to see how the officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ama was drawn relating to the seizure earlier in or on board this vessel or in its vicinity in the Port Trust. The panchnama was drawn in the office of the DRI some distance away. The reason assigned for this is heavy rain at the time of seizure. Accepting that it was raining heavily when the seizure took place, there was plenty of covered shelter in the vicinity of the shed no. 2, Indira Docks, where the vessel lay. There were other cargo sheds of the Port Trust, various offices of the Port Trust and the Customs where the panchnama could have been recorded. The recording of the panchnama in these circumstances in the office of the DRI is to say the least questionable. Witnesses to the panchnama drawn at the office of the DRI are not stated in their documents to have been present when Karim was apprehended with the gold. It is clear that they first came on the scene at the DRI office. There is therefore no independent witness attesting to the fact that Karim's removal of the gold from "the ship." It is only the statement of Karim that indicates that he got it from a crew member of "Kota Naga". The fact that Karim was unable to identify any one of the crew members all of whom were p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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