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TMI Blog1988 (1) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court also ordered confiscation of the two trawlers and to vest the same in favour of Central Government under section 13 of the Maritime Zones of C, India Act The trawlers in questions which are foreign vessel are chartered by respondent Nos. 4 and 5 of this appeal for the purpose of fishing in Maritime Zone of India after obtaining permit under section 5 of Maritime Zones of India Act, in short M.Z.I. Act. These two trawlers 11 along with three other pairs of trawlers were apprehended and seized by Coast Guard Ship Vikram commanded by Commander S.D. Baijal for fishing operations in the-exclusive economic zone of India in violation of the terms and conditions of permit and the letter of intent granted to that company by the Government of India under section 5(4) of M.Z.I. Act and in violation of Maritime Zones of India Rules, in short M.Z.I. Rules, 1982 as amended. They were prosecuted by Additional Chief Metropolitan Magistrate, 8th Court Ballard Estate, Bombay on the complaint of Commander S.D. Baijal filed as authorised officer under section 19 of the M.Z.I. Act. The masters of the two trawlers, the respondent Nos. 2 and 3 of this appeal were convicted and sentenced to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Appeal Nos. 497 and 637 of 1986. The Additional Chief Metropolitan Magistrate convicted the masters of the trawlers i.e. accused Nos. 1 and 2 for contravening Rule 8(1)(G) read with Rule 16 and Section 20(b) of M.Z.I. Act and sentenced them to pay a fine of ₹ 60,000 and ₹ 40,000 respectively; in default of payment of fine to suffer R.I. for 1 year and 9 months respectively. The Magistrate also made an order confiscating the trawlers JIANN TAI No. 301 and JIANN TAI No. 302 along with the fishing gear, equipments, stores, cargo and fish and directed that the same shall vest with the Central Government together with the proceeds of the sale of fish, if any, under order of the Court. The Magistrate however. acquitted accused Nos. 3 and 4, i.e the Charterer Company and its Managing Director. Crl. A. No. 497 of 1986 filed by Cdr. S.D. Baijal against the order acquitting accused Nos. 3 and 4, i.e. Charterer Company and its Managing Director was allowed by the High Court of Bombay and they were convicted and sentenced to pay a fine of ₹ 30,000 each; in default to suffer S.I. for 4 months. The order of confiscation of the two trawlers was also maintained. Crl. A. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y; in default to undergo R.I. for 1 year and 9 months respectively. The Magistrate also made an order confiscating the trawlers BWA Sheng No. 21 and HQA Sheng No. 22 together with fishing gear, equipment, stores, cargo and fish therein. Crl. A. No. 660/86 was filed by the Charterers. Crl. A. No. 635 of 1986 was filed by the masters of the trawlers. Crl. A. No. 635 of 1986 was dismissed with the modification that conviction and sentence passed u/s 12(b) of the M.Z.I. Act was altered to one u/s 12(a) of the said Act and Crl. A. No. 660 of 1986 was dismissed with the modification that the imprisonment awarded in default of payment of fine imposed on the appellant was altered to S.l. for 4 months instead of R.I for 6 months The order of confiscation of trawlers passed by the Magistrate was also confirmed. The facts and issues involved in all these appeals being similar we dispose of these appeals by a common judgment. It has been first contended on behalf of the appellant that at the time of apprehension of the trawlers no fish was found on board and the net was not wet. There was no evidence that fish on board was seized nor there was any evidence to show what had happened to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quipment, cargo and fishing gear considering the graveness of the offence. It has been strenuously urged before us that the object of the M.Z.I. Act is to prevent poaching of fishes in the exclusive economic zone of India by foreign vessels without any licence or permit as required under the said Act. Section 10 provides that where a vessel contravenes the provisions of Section 3. the owner or master of the vessel shall be punishable for imprisonment for a term not exceeding 3 years or with a fine not exceeding ₹ 15 lakhs; where the contravention takes place in an area within the exclusive economic zone of India, the punishment of fine will not exceed rupees ten lakhs. Similarly for contravention of licence the punishment of fine will not exceed rupees ten lakhs whereas in case of contravention of the provisions of the permit in respect of the area of operation or method of fishing, the punishment of fine will not exceed rupees five lakhs and in any other case the punishment of fine will not exceed rupees fifty thousand. Referring to these provisions providing for different kinds of penalty, it has been urged that the confiscation of the vessel for contravention of the permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities of foreign fishing vessels in our exclusive economic zone. There have also been instances of foreign fishing vessels chartered by Indian parties indulging in such activities. To prevent such activities and to protect our fishermen from the hardship caused by poaching vessels, it is necessary to regulate fishing activities by foreign fishing vessels and to provide for deterrent punishment by way of heavy fines and confiscation of foreign fishing vessels engaged in such activities. Section 2(a) defines exclusive economic zone of India as meaning the exclusive zone of India in accordance with the provisions of section 7 of the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976. According to Section 2(i) owner of vessel a includes any association of persons whether incorporated or not, by whom the vessel is owned or chartered; Section 2(j) defines permit meaning a permit granted or deemed to have been granted under section 5. Section 3 states that subject to the provisions of the act, no foreign vessel shall, except under and in accordance with: (a) a licence granted under section 4; or (b) a permit grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stated herein. Thus, it is crystal clear that the M.Z.I. Act has been enacted with the object of preventing illegal poaching of fishes by foreign vessels including foreign vessels chartered by Indian parties by providing deterrent punishment to protect Indian fishermen. The objects and reasons of the Act are to be taken into consideration in interpreting the provisions of the Statute and not the debates in Parliament on the Bill. This has been observed by this Court in K.P. Varghese v. The Income-tax officer, Ernakulam and another, [1982] 1 SCR 629 as under. Now it is true that the speeches made by the Members of the Legislature on the floor of the House when a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision but the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill can certainly be referred to for the purpose of ascertaining the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. This is in accord with the recent trend in juristic thought not only in western countries but also in India tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Customs officers found out a large quantity of gold in bars valued at about ₹ 23 lakhs. The Additional Collector of Custom found that the vessel had clearly rendered itself liable to confiscation under section 167(12A) of Sea Customs Act, 1878 because it had infringed the provisions of Section 52A of the said Act. He also confiscated the gold bars under Section 167(8) read with Section 23A of the Foreign Exchange Regulations Act. He also directed that Eastern Saga be confiscated u/s 167(12A) of the said Act and in lieu of confiscation he gave the owners of the ship an opportunity to pay a fine of ₹ 25 lakhs within a period of 30 days of the despatch of the order. This order was challenged in an appeal under special leave before this Court. Section 167(12A) provides that if a vessel contravenes section 52A it shall be liable to confiscation . It was held: ... The context seems to require that it is not open to the Customs to refuse to confiscate the vessel on the ground that there are any extenuating circumstances surrounding the contravention of Section 52A in a given case and that it would be unfair to impose the penalty of confiscation. Two penalties are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on revision held that the words shall be liable to confiscation in section 11 did not mean that it was mandatory to confiscate. It is the discretion of the Court whether to make an order for confiscation of the conveyance or not according to the facts and circumstances of the case. This Court had observed that provisions of Section 11 of the Madhya Bharat Act are permissive and not obligatory. Three factors were taken into consideration in construing Section 11. First, it would be unjust to confiscate the truck of a person if he has no knowledge whatsoever that the truck was being used for transporting the opium. Secondly, it is a penal statute and it should if possible be construed in such a way that a person who has not committed or abetted any offence should not be visited with a penalty. Thirdly, if confiscation was obligatory under the section, the section may have to be struck down as imposing an unreasonable restriction under Article 19 of the Constitution . Section 11 of the Madhya Bharat Act is not therefore to be construed as obligatory and it is for the court to consider in each case whether the articles in which the contraband opium is found or it being transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e process of law. Similarly, it has been held that in Section 302, Indian Penal Code, the phrase, shall also be liable to fine does not convey a mandate but leave it to the discretion of the Court convicting an accused of the offence of murder to impose or not to impose fine in addition to the sentence of death or transportation for life. In the case of F.N. Roy v. Collector of Customs, Calcutta, [1957] S.C.R 1151 the petitioner on the basis of a notification dated March 16, 1953 issued by the Government of India giving general permission to all persons to import into India from certain countries any goods of any of the description specified in the schedule annexed to the notification had placed an order with a company in Japan for supply of certain goods called in the trade Zip Chains. The goods on arrival in Calcutta Port could not be cleared from the Port as a notice was issued by the Collector of Customs for Appraisement stating that the petitioner did not possess valid import licence for the goods and asked him to show cause why the same should not be confiscated and action taken against the petitioner u/s 167(8) of the Sea Customs Act. The petitioner submitted a written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... word may in place of shall in Section 183 of the Sea Customs Act, it has been left to the discretion of the Customs Authorities to give or not to give the option to payfine. It was held that it was obligatory on the part of the Customs Authorities to make an order confiscating the goods illegally imported in violation of the provisions of the Act. The objects and reasons of the M.Z.I. Act are to prevent illegal poaching of fishes by foreign vessels chartered by Indian citizens in the exclusive economic zone of India at a depth less than 40 fathoms by providing deterrent punishment for contravention of the provisions of the Act in order to protect and safeguard the interests of India fishermen. Chapter II of the Act deals with Regulation of fishing by foreign vessels. The heading of Section 3 is Prohibiting of Fishing in Maritime Zones of India by Foreign Vessels . Thus Section 3 prohibits the use of foreign vessels for fishing within any maritime zone of India without licence or permit granted by the Central Government and also in accordance with the terms mentioned in the licence or permit. Section 5 under the caption Prohibition of Fishing by Indian Citizens using fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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