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TMI Blog2002 (9) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... placed under the heading 'old adjourned matters' and ultimately it was heard by this Bench in respect of the merit of the matter. 3.Factual background of the case is that on 3rd April, 1991 at Calcutta Airport the Thai Airways Flight TG-311 landed as an non-scheduled flight due to some mechanical fault. The flight was on its route from Bangkok to Kathmandu. After necessary repairing the flight took off for Kathmandu. But after half an hour the flight came back again to Calcutta Airport with developed mechanical problem. Then the aircraft was rummaged by the Officers of Calcutta Customs after disembarkation of all the passengers from the aircraft. The rummage was held in presence of two independent witnesses and the Captain and other crew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty presumed that when the confiscated articles were available in the specially made cavity in an aircraft, therefore, the aircraft authority cannot avoid any responsibility as regards the precautionary measures. But the Captain who is entrusted with the responsibilities of navigational job and safety of the aircraft as well as of the passengers cannot be held to be responsible for such import of gold. Therefore, the Captain was released from the charge. But the confiscation of the aircraft which had been released on undertaking, was allowed to remain subject to payment of redemption fine of Rs. 1,00,000/- and penalty of Rs. 50,000/- only under Section 112 of the Customs Act. 5.The petitioners have given guarantee of such amount and procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be construed as any charge existable against such aircraft unless and until it is specified under the provision of law. 9.Before 1988, Section 115 of the Customs Act, 1962 which is dealing with confiscation of conveyances was read as follows :- "(2) Any conveyance or animal used 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 ech of them had taken all such precautions against such use as are for the time being specified in the rules". 10.By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bank guarantee on this account cannot be sustainable in the eye of law. 12.When the law is not sanctioned to pass any order mere surmise or conjecture on the part of the authority concerned that as because such confiscated goods were kept in a secret portion of the aircraft, therefore, the aircraft is liable for confiscation cannot be held to be sustainable. Although it has been urged by Mr. N.C. Roy Chowdhury, learned Senior Counsel, appearing for the authority concerned who has pin-pointed the part of the proviso under Section 115(2) to justify the stand of the Customs Authority but I do not find that such proviso will have any leg to stand in view of non-applicability of main part of sub-section (2) of Section 115 of the Act. If th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce against the release of the Captain. I have only grievance in respect of the logic of drawing inference by such authority concerned. He proceeded on a cause of precaution assuming that for this moment the precautionary part was necessary for the conveyance. Can it be said that Captain is not responsible for the same? Certain goods were hidden in the toilet. Unless the goods are detected as gold bars nobody can say that it is surely such type of goods. The goods might have been the damagable goods for the aircraft or the passengers. Therefore, how it can be said that the Captain being person-in-charge is not responsible for the purpose of enquiry as to the availability of the goods is not known to this Court. On the other hand, it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the list of this court under the heading 'old matters'. Even thereafter, such old matters were adjourned by a replaced heading 'old adjourned matters' to give further opportunity. Although, unlike many of the High Courts of the country, there is no scope of admission of the writ at the initial stage to come to a definite conclusion that once it has been admitted the same cannot be ignored for having alternative remedy yet, in effect, in the present situation similar analogy applies. Moreover respondents submitted to the jurisdiction in respect of merit of the case. Therefore, at this stage such question become fit accompli. 17.Therefore, taking into totality of the matter, both on account of merit and technicality, I am of the view that i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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