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TMI Blog2022 (1) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... owner of the vessel, who is a national of the Republic of Yemen, is before this Court challenging the order of confiscation issued under section 111 of the Customs Act, 1962 (for short the Act) and also seek release of the vessel and the goods, without paying the redemption fine or the duty. 2. Petitioner pleads that when the Coast Guard Authorities received a distress call from the crew of the foreign fishing vessel on 29-11-2019, it was brought into the territorial waters of India and to the Kochi Port. The vessel was later seized by the Coastal Police at Fort Kochi and a crime was registered as FIR No.12/2019 under section 102 of the Cr.P.C. 3. Later, when petitioner came to know about the abduction of the vessel and the registration of crime, he filed an application as Crl.M.P. No.58 of 2020 before the Judicial First Class Magistrates Court-I, Kochi, for release of the vessel as Ext.P3. The Customs also filed Ext.P4 application for custody of the vessel as Crl.M.P. No.59 of 2020 before the same Magistrate. By order dated 10-03-2020, the learned Magistrate allowed the application of the Customs and granted custody of the vessel to them, with liberty to the petitioner to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards India. Pursuant to a plot crafted by the crew, a distress call was made stating that they are being subjected to mistreatment and were being compelled to work without wages. Answering the distress call, the Indian Coast Guard brought the vessel into the territorial waters of India. The investigation by the Customs revealed that the above acts were done without the knowledge of the petitioner. The respondents in fact, admit that the petitioner had no involvement in the vessel being brought to India. This fact is evident from the discussions in the impugned order, which will be referred to, later in this judgment. 10. A distress signal, or a distress call, is an accepted and recognized mode, calling for help while on the high seas. Distress calls are communicated through radio signals or through visually observable items or illuminations, or by making sounds audible from a distance. 11. Several regulations govern the field relating to the safety of life at sea. To deal with the safety of life at sea, an international treaty has been entered into called 'The United Nations Convention on the Law of Seas' referred to as "UNCLOS". Article 98 of UNCLOS prescribes it as a duty o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Kochi Port. 14. As mentioned earlier, the investigation by the Customs revealed that the distress call was a ploy adopted by the crew of the vessel, which had, in reality, abducted the vessel and brought it near India and then made the false distress call. The following finding in the impugned order is relevant in this context: "I find from the relied upon documents the Vessel "Al-Thariaya-3" is a fishing vessel registered under the Coast Guard Command, Hadramout Zone under H.C.G.F-V247 owned by Shri Sultan Ali Matar Humaid Al Shamsi, P.B No. 132, Ajman, United Arab Emirates which was seized by the Customs Authorities which in fact had been subject to abduction by the crew of the Vessel and thus the Vessel had been brought to the territorial waters of India illegally without the consent from the owner of the Vessel. That the crew of the Vessel had malafide intentions and had abducted the Vessel falsely claiming unpaid wages and such obscured claims of mistreatment. The Vessel had entered into the Indian Port (Kochi) with the help of Coast Guard by a fake distress call made by the crew of the Vessel". Thus it is a concluded finding that the vessel was brought into the Indian wat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances arising in each case. A pedantic and rigid approach, dehors the factual circumstances, is not called for. 19. The vessel or the goods in it have not been used or put to any use in India, for any purpose. The vessel or the goods have not merged with the mass of the goods in the country. Therefore, in the instant case, there cannot be any import into India as contemplated under the Act. Reference can be profitably made to the decision in Union of India and Another v. V.M. Salgaoncar & Bros. (P) Ltd. and Others [(1998) 4 SCC 263]. 20. Similarly, in the decision in Commissioner of Customs, Mumbai v. Aban Loyd Chiles Offshore Ltd. and Others [(2017) 3 SCC 211] it was held that repair of a foreign going vessel at a port in India does not amount to a taxable import nor does it fall within the ambit of home consumption. 21. In view of the above, the abduction and bringing into India of a foreign vessel by its crew illegally, without the knowledge of its owner, cannot amount to import or be liable to customs duty as contemplated under the Act, unless the same is used for consumption in India. 22. Apart from the above, the circumstances of the case clearly evinces only an ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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