9911796707
TMI Blog1986 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant No. 1 is the Additional Collector of Customs, R. I. Department, and appellant No. 2 is the Union of India. The said vessel arrived from Persian Gulf Ports, with passengers and anchored in steam on 15th June, 1977. The officers of the Customs House boarded the said vessel and rummaged it in the presence of panchas, the Captain, the Chief Engineer and the third Engineer of the ship. During the search, the Customs Officers found one printed cotton cloth bag containing five paper adhesive taped packets concealed behind the side of the main engine near the entrance leading to the engineers' mess room. Two similarly wrapped packets were recovered from the air-blowers in the petty officers toilet on the star board side. On examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggled in the vessel. The Chief Engineer of the said vessel, Burges, stated that prior to the arrival of the vessel in Bombay, he despatched the second Engineer, the third Engineer and the Senior Electrical Engineer to carry out searches for contraband goods in the engine room and he allotted places for search to different persons but nothing incriminating was found. The Chief Officer on Board, A.R.I. Peera has made a similar statement. None of these officers have been cross-examined by the Customs Officer who recorded the said statements. Thereafter, on 2nd July, 1977, appellant No. 1 issued a show cause notice to the respondent as the owner of the vessel and to the Master of the vessel and "any other owners of the goods under seizure". Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62. There is no dispute regarding the correctness of this order of confiscation. Appellant No. 1 further ordered that the said vessel be confiscated under Section 115(2) of the Customs Act, 1962. However, respondent No. 1 as the owner was given an option to redeem the said vessel on payment of a fine of Rs. 50,000/-. Appellant No. 1 did not impose any personal penalty on the Master of the ship or the owner of the vessel, on the ground that no sufficient evidence had been brought against either of them for the imposition of personal penalty under Section 112 of the Customs Act. What was challenged before the learned trial Judge was the order of appellant No. 1, in so far as it related to the confiscation of the said vessel. The learned trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yances. In view of the definition in sub-section (9) of Section 2 of the Customs Act, it is clear that a vessel or a ship would be included in the definition of the term "Conveyance" for the purposes of that Act. Sub-section (2) of Section 115, which is the material sub-section, for our purposes, reads as follows: " (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 115, it is clear that, in a case like this, what the owner of the vessel has to show, in order to avoid confiscation, is that it was used as a means of transport in the smuggling of goods without his knowledge or connivance or the knowledge or connivance of the Master of the vessel. It is not always necessary that the owner must lead positive evidence as such. It is always open to him to demonstrate that on the facts and circumstances of the case, it can be sufficiently established that the owner of the ship and the Master of the ship had no knowledge of or connivance in the ship being used for transporting smuggled goods. On the facts of the present case, as set out in the petition, which remained uncontroverted, it is seen th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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