Chern Taong
Shang & Anr Vs. Commander S.D. Baijal & Ors [1988] INSC 10 (13 January 1988)
Ray,
B.C. (J) Ray, B.C. (J) Shetty, K.J. (J)
CITATION:
1988 AIR 603 1988 SCR (2) 641 1988 SCC (1) 507 JT 1988 (1) 202 1988 SCALE (1)69
CITATOR
INFO : RF 1988 SC 782 (41)
ACT:
Maritime
Zones of India Act, 1981-Maritime Zones of India Rules, 7982-Interpretation-Applicability of the provisions of-Section
13 of the Act-Whether mandatory.
HEAD NOTE:
% The
facts and issues involved in all these appeals were similar.
Criminal
Appeals Nos. 644-45.87 and Criminal Appeals Nos. 642-45-/87 were against the
judgment and order of the High Court of Bombay, dismissing the Criminal Appeal
filed by masters of two trawlers against their conviction and sentence and
allowing the appeal filed by Commander S.D. Baijal against the acquittal of
accused Nos. 3 and 4, i.e. the Charterer Company and its Managing Director and
also releasing the trawlers. The High Court convicted the accused Nos. 3 and 4
for contravention of sub-section 6 of section 5 of the Maritime Zones of India
Act, 1981 (M.Z.I. Act) read with section 7 thereof and rule 16 of the Maritime
Zones of India Rules 1981, (M.Z.I. Rules). The High Court also ordered
confiscation of the two trawlers, vesting the same in favour of the Central
Government under section 13 of the M.Z.I. Act.
The
two trawlers involved-foreign vessels-were chartered by the respondents Nos. 4
& 5 herein for fishing in Maritime Zone of India after obtaining permit
under section 5 of the M.Z.I. Act. The trawlers along with three other pairs of
trawlers were apprehended and seized by the Coast Guard ship commanded by
Commander S.D. Baijal for fishing operations in the exclusive economic zone of
India, in violation of the terms and conditions of the permit and the letter of
intent granted to that company by the Government of India under section 5(4) of
the M.Z.I. Act and in violation of the M.Z.I. Rules. They were prosecuted by
the Additional Chief Metropolitan Magistrate on the complaint filed by
Commander S.D. Baijal as authorised officer under section 19 of the M.Z.I. Act.
The masters of the trawlers, respondents Nos. 2 and 3, were convicted and
sentenced to pay fines and the other accused respondents Nos. 4 and 5 were
acquitted and the trawlers and the fishes thereon were ordered to be released
on payment of the detention 642 charges. Of the other three pairs of foreign
trawlers chartered by Indian Company for fishing in the Maritime Zone of India
under the permit granted under the M.Z.I. Act, which were seized and
prosecuted, two pairs of trawlers with fishes thereon were ordered to be
confiscated while one pair of these trawlers were directed to be released. The
masters of each pair of trawlers were similarly convicted and sentenced to pay
fine for violation of the provisions of the said Act and the Rules there under.
The
Masters of the pair of trawlers filed a criminal appeal against their
conviction and sentence while the complaining Commander S.D. Baijal filed a
criminal appeal against the acquittal of respondent Nos. 4 and 5 i.e. the
Managing Director of the company and the company and also against the release
of the trawlers in spite of conviction of the masters under section 12(b) of
the M.Z.I. Act. The High Court disposed of these appeals by a common judgment,
allowing the appeal of the masters in part and modifying their sentence and
convicting. in the appeal filed by S.D. Baijal, the Managing Director and-the
Company, accused respondents Nos. 3 and 4 and sentencing them to pay fines, and
ordering the trawlers to be confiscated with fishes thereon or the proceeds
thereof in case of sale of the same.
The
High Court also held the masters of the trawlers guilty under Rule 8(1)(g) and
convicted them under section 12(a) instead of section 12(b) of the M.Z.I. Act,
but maintained the sentence of penalty.
Criminal
Appeals Nos. 645-47;87 and Criminal Appeals Nos. 65051 of 1987 arose out of a
common judgment of the High Court in two criminal appeals, modifying in part
the judgment and order of the Additional Chief Metropolitan Magistrate, whereby
the Magistrate had 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 the
M.Z.I. Act and sentenced them to pay fines, in default of payment of fine, to
suffer rigorous imprisonment. The Magistrate also had made an order,
confiscating the two trawlers alongwith the fishing gear, equipments, stores,
cargo and fish and vesting the same together with the proceeds of the sale of
the fish, if any, with the Central Government. The Magistrate had acquitted the
accused Nos. 3 and 4 i.e. the Charterer Company and its Managing Director.
The
criminal appeal filed by Cdr. S.D. Baijal against the order acquitting the
accused Nos. 3 and 4 above said was allowed by the High Court and they were
convicted and sentenced to pay fines etc. The order of confiscation of the two
trawlers was maintained. The criminal appeal filed by the masters of the
trawlers was dismissed with the modification that the conviction 643 made under
section 12(b) was altered to one under section 12(a) of the M.Z.I. Act and the
sentence of vigorous imprisonment was modified.
Criminal
Appeals Nos. 648-49.87 and Criminal Appeals Nos. 65253187 arose out of a common
judgment of the High Court, dismissing the appeals of the masters of the
vessels and allowing the appeals filed on behalf of the prosecution.
All
these appeals were filed against the judgment and order of the Additional Chief
Metropolitan Magistrate in the Criminal case wherein the Magistrate had
convicted and sentenced the masters of the trawlers with the imposition of
fines on accused Nos. 1 and 2 for contravening Rules 8(1)(g) and 16 of the
M.Z.I. Rules and also of the offence under section 5 of the Act and imposing
penalty u/s. 12(b) of the M.Z.I. Act. The Magistrate had acquitted the accused
Nos. 3 and 4 i.e. the Charterer Company and its Managing Director and directed
the release of the trawlers in favour of the masters of the trawlers. The
criminal appeal filed by the masters of the vessels was dismissed by the High
Court and the conviction and sentence u/s 12(b) of the M.Z.I. Act was altered
to one under section 12(a) of the Act. The criminal appeal filed on behalf of
the prosecution was allowed and the accused Nos. 3 and 4 i.e. the Charterer
Company and its Managing Director, were convicted and sentenced to pay fine.
The
vessel and the fishing equipment were confiscated and directed to vest in favour
of the Central Government.
Criminal
Appeal Nos. 654-55/87 and Criminal Appeal No. 656 of 1987 arose out of a common
judgment and order of the High Court in the Criminal Appeals filed by the Charterers
and the masters of the trawlers, respectively. These appeals were filed against
the judgment and order of the Additional Chief Metropolitan Magistrate in a
criminal case against the masters of vessel. The Magistrate had convicted and
sentenced the accused Nos. 1 and 2, i.e. the masters of the vessel to pay
fines; in default to undergo rigorous imprisonment, and had confiscated the trawlers
together with fishing gear, equipment, stores, cargo and fish therein. The
criminal appeal of the masters of the trawlers had been dismissed with a
modification of the conviction and sentence passed under section 12(c) of the
M.Z.I. Act was altered to one u/s 12(a) of the Act and the criminal appeal of
the Charterers was dismissed with a modification of the imprisonment awarded in
default of payment of fine imposed on the appellant to simple imprisonment
instead of rigorous imprisonment. The order of confiscation of trawlers passed
by the Magistrate was confirmed.
Dismissing
all the appeals, the Court, 644 ^
HELD:
The appellants contended that at the time of the apprehension of the trawlers
no fish had been found on board and there was no evidence that fish on board
was seized or that what had happened to fish or who had put the fish in the
hold of the trawlers, and that, therefore, no presumption under section 22 of
the Act could be drawn that the trawlers were engaged in fishing within the
exclusive economic zone of India in contravention of the provision of the Act
and the Rules framed thereunder. This contention could not be considered in
appeal by special leave as there had been concurrent findings by the Chief
Metropolitan Magistrate and the High Court that there was fish on board.
[649F-H;
650A] The main argument on behalf of the appellants was focussed on the vital
question as to whether the words used in section 13 of the M.Z.I. Act
"shall also be liable to confiscation" mandated that the foreign
vessel used in the commission of the offence would be con fiscated as soon as
the masters were convicted under section 10 or 11 or 12 of the Act, or it was
the discretion of the Court to order either release of the vessel or
confiscation of the vessel with the fish and the other equipment, cargo and
fishing gear, considering the graveness of the offence. On an examination of
the objects and Reasons and the various provisions of the Maritime Zones of
India (Regulation of Fishing by Foreign Vessels) Act, 1981, it was crystal
clear that the M.Z.I. Act had been enacted with the object of preventing
illegal poaching of fishes by foreign vessels, including 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 to protect Indian fishermen.
The
objects and reasons were to be taken into consideration in interpreting the
provisions of the statute. In interpreting a statute, the Court has to
ascertain the will and policy of F. the legislature as discernible from the
object and scheme of the enactment and the language used therein. Viewed in
this context, it was apparent that the said Act had been made with the sole
purpose of preventing poaching of fishes by foreign vessels chartered by Indian
citizens within the exclusive economic zone of India as specified in Rule 8(1)(g)
of Maritime Zone of India Rules as amended in 1982 as well as in breach of the
provisions of the said Act and the terms and conditions of the permit issued
under section 5 of the said Act. [650E-G; 651D; 654F] Section 13 of the Act
expressly says that besides the conviction and sentence of the masters of the
vessels, and charterers, the vessel is liable to be confiscated with fishes
therein. The appellants' contention was that the words "shall also be
liable to confiscation" used in section 13 of 645 the Act did not mean
that it was mandatory to confiscate the vessel as the masters of the vessel had
been convicted and sentenced to pay penalty under section 12 of the Act, and as
various punishments had been provided for different types of offences, it was
left to the discretion of the court to order confiscation of the vessel or to
release the vessel.
[655A-C]
Section 13 in clear and unimbiguous terms says that on the conviction of the
master and the charterer of an offence under section 10 or 11 or 12, the vessel
used in connection with the offence together with the fish on board such ship
or the sale proceeds of such fish, and stores, cargo shall also be liable to
confiscation. Viewed in the context, the words "shall also be liable to be
confiscation" do not leave any discretion to the Magistrate or the court
to make no order of confiscation of the vessel as soon as the masters of the
vessel were convicted u/s 10 or 11 or 12 of the Act.
The
Legislative intent in making this provision was to provide deterrent punishment
to prohibit fishing in the exclusive economic zone of India by foreign vessels
in infringement of the Act and the rules framed there under and the conditions
of the permit or licence. Viewed in this context, section 13 mandates that on
conviction of the master and the charterer of an offence under section 12, not
only penalty of fine would be imposed, the vessel used in or in connection with
the commission of such offence has to be confiscated. It is not open to the
court to consider the graveness of the offence and other extenuating
circumstances and to make no order for confiscation of the offending vessel
concerned. Confiscation of the vessel is the immediate statutory consequence of
the finding that an offence either under section 10 or 11 or 12 has been proved
and the master of the vessel has been convicted. Section 13 is thus mandatory
and it is not open to the court to refrain from making an order, confiscating
the offending vessel as soon as the masters of the vessel are convicted of an
offence under section 12 and awarded penalty. [660BF] The judgments and orders
of the High Court were affirmed. The vessels had been detained in Bombay Port
after apprehending them on July 26, 1984 and a huge amount had to be paid as
port charges. Considering the facts and circumstances of the case, the Port
Authorities at Bombay might consider if an application was made by the parties
for exemption or partial exemption of the same favourably in view of the order
of confiscation of the trawlers. [660G-H] State of Madhya Pradesh v. Asad Bharat Finance Co. Anr.,
[1966] Supp. SCR 473; Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh,
Addl. Collector of Customs & Ors., [1964] 6 SCR 594;
646 Superintendent
and Legal Remembrancer of Legal Affairs to the Govt. Of West Bengal v. Abani Maity, [1979] 3 SCR 472;
K.P. Verghese v. The Income-tax officer, Ernakulam and another, [19821 I SCR
629 and F.N. Roy v. Collector of Customs, Calcutta,[1957] SCR 1151, referred
to.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal Nos. 642-656 of 1987.
From
the Judgment and order dated 24.4.1987 of the High Court of Bombay in Criminal
Appeal Nos. 495, 496, 497, 660, 635, 636 and 637 of 1986.
A.K. Sen,
A.K. Goel, Ajit Pudussery and M.D. Rijhwani for the Appellants.
M.K. Banerjee,
Solicitor General, A.K. Ganguli, Hemant Sharma, R.P. Srivastave, C. Ramesh and
C.V. Subba Rao for the Respondents The Judgment of the Court was delivered by
RAY, J. Crl. A. Nos. 644-45187 and Crl. A. Nos. 642- 43/87.
These
appeals by special leave are against the judgment and order dated 24th April,
1987 passed by the High Court of Bombay dismissing criminal appeal No. 636 of
1986 filed by masters of two trawlers against their conviction and sentence and
allowing appeal No. 496 of 1986 filed by Commander S.D. Baijal against the
acquittal of accused Nos. 3 and 4, i.e. the charterer company and its managing
Director and also releasing the trawlers. The High Court convicted the accused
Nos. 3 and 4 for contravention of sub- section 6 of section 5 of the Maritime
Zones of India Act, 1981 read with section 7 thereof and rule 16 of Maritime
Zones of India Rules, 1982. The High 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 647 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 a fine of Rs.60,000 and Rs.40,000 respectively
and the other accused respondents Nos. 4 and 5 were acquitted and the trawlers
and the fishes thereon were ordered to be released on payment of the detention
charges. Of the other three pairs of foreign trawlers chartered by Indian
company for fishing in the Maritime Zone of India under permit granted under
M.Z.I. Act which were seized and prosecuted, two pairs of trawlers with fishes
thereon were ordered to be confiscated while one pair of these trawlers were
directed to be released. The masters of each pair of trawler were similarly
convicted and sentenced to pay fine for violation of provisions of the said Act
and the Rules framed there under.
The
masters of the pair of trawlers filed criminal appeal No. 536 of 1986 against
their conviction and sentence while the complaining Commander S.D. Baijal filed
criminal appeal No. 496 of 1986 against the order of acquittal of respondent
Nos. 4 and S i.e. the Managing Director of the Company and the Company and also
against the release of the pair of trawlers in spite of conviction of the
masters under section 12(b) of M.Z.I. Act by the Magistrate. These two appeals
were heard together and disposed of by a common judgment by the High Court,
Bombay whereby criminal appeal No. 636 of 1986 was allowed in part by modifying
the sentence of the masters of the trawlers from R.I. for one year to S.I. for
9 months and from R.I. for 9 months to S.I. for 6 months. In criminal appeal
No. 496 of 1986 the accused respondent Nos. 3 and 4 i.e. the Managing Director
and the Company were convicted and sentenced to pay a fine of Rs.30,000 each
and the trawlers were ordered to be confiscated with the fishes thereon or in
case of sale of the same the proceeds thereof. The High Court also held the
masters of trawlers guilty under Rule 8(1)(q) and they were convicted under
section 12(a) instead of section 12(b) of the M.Z.I. Act but maintained the
sentence of penalty.
It is
against this judgment and order the instant appeals on special leave have been
filed.
648 Crl.
A. Nos. 646-47 of 87 and Crl. A. Nos. 650-51 of 1987 arise out of a common
judgment made by the High Court of Bombay on April 24, 1987 modifying in part
the judgment and order made by the Additional Chief Metropolitan Magistrate,
38th Court, Ballard Estate, Bombay in Criminal Case No. 28 of 1984 passed in
Criminal 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 Rs.60,000 and Rs.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 Rs.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. 637/86
filed by the masters of the trawlers was dismissed with the modification that
the conviction made u/s 12(b) was altered to 12(a) of M.Z.I. Act and the
sentence of R.I. for 1 year and 9 months respectively in default payment of
fine were modified as S.I. for h months and S months respectively.
Crl.
A. Nos. 648-49 87 and Crl. A. Nos. 652-53 of 1987 arise out of a common
judgment passed in Criminal Appeal Nos. 495 and 634 of 1986 by the High Court
of Bombay on 24th April, 1987 dismissing the appeals of the masters of the
vessels and allowing the appeals filed on behalf of the prosecution. All these
aforesaid appeals were filed against the judgment and order passed by the
Additional Chief Metropolitan Magistrate in Criminal Case No. 27 of 1984
wherein the Magistrate convicted and sentenced the masters of the trawlers with
the imposition of fine of Rs.30,000 and Rs.40,000 on accused Nos. 1 and 2
respectively for contravening Rule 8(1)(g) and Rule 16 of the M Z I. Rules and
also of the offence u/s 5 of the Act and imposing penalty u/s 12(b) of the
M.Z.I. Act. The Magistrate, however, acquitted the accused Nos. 3 and 4 i.e.
the Charterer Company and its Managing Director and directed the release of the
trawlers in favour of the masters of these trawlers. The Crl. A. No. 634 of
1986 filed by the 649 masters of the vessels was dismissed by the High Court of
Bombay and the convinction and sentence u/s 12(b) of M.Z.I. Act was altered to
one u/s 12(a) of the said Act. Crl. A. No. 495 of 1986 filed on behalf of the
prosecution was allowed and the accused Nos. 3 and 4 i.e. the Charterer Company
as well as the Managing Director of the Company were convicted and sentenced to
pay a fine of Rs.30,000. The vessel as well as the fishing equipment were
confiscated and the same were directed to vest in favour of the Central
Government.
Crl.
A. Nos. 654-55 of 87 and Crl. A. No. 666 of 1987 arise out of a common judgment
and order passed by the High Court of Bombay in Crl. Appeal Nos. 660 and 635 of
1986.
These
criminal appeals were filed against the judgment and order passed in criminal
case No. 26 of 1984 made on 21st May, 1986 by the Additional Chief Metropolitan
Magistrate, 38th Court, Ballard Estate. The Magistrate convicted and sentenced
the accused Nos. 1 and 2 i.e. the masters of the vessel to pay a fine of Rs.60,000
and Rs.40,000 respectively; 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 fish or who put the fish in the hold of
the trawlers. It has, therefore, been submitted that no presumption under
section 22 of the said Act can be drawn that the trawlers were engaged in
fishing within the exclusive economic zone of India in contravention of the
provisions of the Act and the Rules framed there under. This contention cannot
be considered in this appeal under special leave as there has been concurrent
findings 650 by the Chief Metropolitan Magistrate as well as by the High Court
that there was fish on board which includes the hold of the trawlers. The
learned single Judge observed:
"I
am, however; unable to accept that for a minor omission to make entry of
finding of the fish or the net in the officers' diary can by itself negative
the evidence of actual finding of the fish and the wet net on the deck and in
my view the Authority quoted will have no application to the facts of this
case." The High Court further held on a consideration of the evidence that
the fishing trawlers were fishing in a depth within 40 fathoms and the finding
of the Magistrate on this score is unassailable. There has been violation of
amended Rule 8(1)(q) of M.Z,.I. Rules. Condition 2(S) of the permit provides
that any condition could be imposed which would be binding on the charterers,
masters of the trawlers. Rule 8(1)(q) requires the. trawlers to fish at a depth
of more than 40 fathoms. This condition in the permit has been violated. The
masters and the charterers have been accordingly convicted under section 12(a)
by the High Court as the violation is with regard to the area of operation
specified in the permit and the penalty provided for the same is not exceeding
Rs.5 lakhs. As the Magistrate has exercised his discretion in sentencing the
masters to pay lesser amount as penalty the High Court did not consider it
proper to interfere with the same.
The main
argument on behalf of the appellant was focussed on the vital question as to
whether the words used in Section 13 of M.Z.I. Act "shall also be liable
to confiscation" mandate that the foreign vessel used in connection with
the commission of the offence as soon as the masters have been convicted under
section 10 or 11 or 12 of the said Act, shall be confiscated or it is the
discretion of the Court to order either for release of the vessel or for
confiscation of the vessel together with the fish and other equipment, 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 Rs.15 lakhs; where the
contravention takes place in an area within the exclusive economic zone of
India, the punishment of fine will not exceed 651 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 is not warranted in as much as the
punishment provided for such contravention u/s 12 is much less than the
punishment provided for in respect of contravention of licence as well as
contravention of Section 3 of the said Act It has, therefore, been submitted
that the provisions of Section 13 of the said Act are not mandatory but directory.
This leaves option to the Court to use its discretion to pass an order of
confiscation of vessel in the facts and circumstances of the case. The trawlers
in question were chartered by the company and the company duly obtained permit
under Section 5 of M.Z.I. Act, 1981 for fishing in economic zones of India at a depth of not less than 40
fathoms. It has been submitted that it is not possible to fish at the said
depth as depth varies from place to place and for such a minor infringement the
penalty of confiscation of the vessel i.e. the fishing trawlers should not be
awarded as the trawlers are fishing in the maritime zone of India under permit
granted by the Government of India in favour of the Indian company which
chartered those trawlers. Moreover, different penalties are prescribed for
different offences committed under sections 10, 11 and 12 of M.Z.I. Act
according to the graveness of the offence. The penalty of confiscation of the
vessel under Section 13 if found to be imperative, the provisions will be
arbitrary. The words "shall also be liable to confiscation" in
Section 13 of the said Act have to be interpreted as not mandatory in the
context they have been used but discretionary. It is left to the discretion of
the Court to award this sentence of confiscation in case of commission of grave
offences In support of this submission the decisions in State of Madhya Pradesh
v. Azad Bharat Finance Co. & Anr., [1966] (Supp,) SCR 473; Indo-China Steam
Navigation Co. Ltd. v. Jasjit Singh, Addl. Collector of Customs & Ors.,
[1964] 6 SCR 594 and Superintendent and Legal Remembrancer of Legal Affairs to
the Govt. Of West
Bengal v. Abani Maity,
[1979] 3 SCR 472 have been cited at the bar wherein similar words "shall
also be liable to confiscation" have been used.
It is
convenient to ascertain the legal position before deciding the question raised.
In the Statement of objects and Reasons of The Maritime Zones of India (Regulation of Fishing by Foreign
Vessels) Act, 1981 it is stated:
652
"There has been an increase in poaching 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 granted under section 5, by the
Central Government, be used for fishing within any maritime zone of India.
Section
4 provides for procedure for making application for licence by the owner of a
foreign vessel for fishing within any maritime zone of India and grant of licence
by Central Government.
Section
5 prohibits fishing by Indian citizens using foreign vessels within any
maritime zone of India without obtaining permit and the procedure for grant of
permit to charterer has been specified therein.
Sub-section
(6) of Section 5 of the Act provides:
"A
person holding a permit under this section shall ensure 653 that every person
employed by him complies, in the course of such employment, with the provisions
of this Act or any rule or order made there under and the conditions of such
permit.
Section
10 says that for contravention of provisions of Section 3, the owner of master
of the vessel: B (a) in case of contravention of territorial waters of India
shall be punishable with imprisonment for a term not exceeding three years or
with fine not exceeding rupees fifteen lakh or with both; and (b) in a case
where contravention takes place in any area within the exclusive economic zone
of India, shall be punishable with fine not exceeding rupees ten lakh.
Section
11 prescribes punishment of fine not exceeding rupees ten lakhs in case of contravention
of licence.
Section
12(a) prescribes punishment of fine not exceeding rupees five lakhs where the
contravention relates to the area of operation or method of fishing specified
in the permit and; section 12(b) in any other case with fine not exceeding
rupees fifty thousand.
Section
13 which is relevant for deciding these appeals is as under:
"Confiscation
of vessels, etc.-(1) Where any person is convicted of an offence under section
10 or section 11 or section 12, the foreign vessel used in or in connection
with the commission of the said offence, together with its fishing gear,
equipment, stores and cargo and any fish on board such ship or the proceeds of
the sale of any fish ordered to be sold under the second proviso to clause (a)
or subsection (4) of section 9 shall also be liable to confiscation. (2) the
foreign vessel or other things confiscated under subsection (1) shall vest in
the Central Government. " Other provisions of the said Act are not
necessary for our purpose and as such they are not stated herein.
Thus,
it is crystal clear that the M.Z.I. Act has been enacted with 654 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 that interpretation of a statute
being an exercise in the ascertainment of meaning, everything which is
logically relevant should be admissible . . . .
It is
pertinent to mention that in interpreting a statute the Court has to ascertain
the will and policy of the legislature as discernible from the object and
scheme of the enactment and the language used therein. Viewed in this context
it is apparent that the said Act has been made with the sole purpose of
preventing poaching of fishes by foreign vessels chartered by Indian citizens
within the exclusive economic zone of India as specified in Rule 8(1)(q) of
Maritime Zone of India Rules as amended in 1982 as well as in breach of the
provisions of the said Act and the terms and conditions of permit issued under
Section 5 of the said act.
Section
8 under the heading "Prohibition of fishing in Maritime zone of India by
foreign vessels" expressly prohibits foreign vessels from fishing in
maritime zone of India except under and in accordance with a licence or permit
granted by Central Government and breach of the same has been made punishable
under Section 10 of the said Act.
Similarly
violation of the terms and conditions of licence and permit granted under
Sections 4 or 5 is punishable under Sections 11 or 12 respectively of the said
Act.
655
Section 13 of the said Act expressly says that besides conviction and sentence
of the masters of the vessels and charterers, the vessel is little to be
confiscated with fishes therein.
The
contention on behalf of the appellants is that the words "shall also be
liable to confiscation" as used in Section 13 of the said Act do not mean
that it is mandatory to confiscate the vessel, i.e. the trawlers as the masters
of the vessel have been convicted and sentenced to pay penalty under section 12
of the Act. As various punishments have been provided for different types of
offences, it is left to the discretion of the court to order confiscation of
the vessel or to release the vessel In the case of Indo-China Steam Navigation
Co. Ltd. v. Jasjit Singh, Additional Collector of Customs & ors., [1964] 6
SCR 594 the foreign vessel 'Eastern Saga' arrived at Calcutta from the Far East carrying a legitimate cargo. On its
arrival at the port the Custsoms officers on search found a hole in sailors'
accommodation which was covered with a piece of wood and over-painted. From the
hole the Customs officers found out a large quantity of gold in bars valued at
about Rs.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
Rs.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 prescribed, one is the confiscation of the ship, and the other is a fine
against the master. In regard to the latter penalty it is within the discretion
of the Customs Authority to decide what amount of penalty should be imposed;
just as in the case of the first penalty it is not open 656 to it to say that
it would not impose the penalty of confiscation against the offending ship, so
in the case of the second penalty it is not open to it to say that it will not
levy any penalty against the master .. It must be regarded as an elementary
requirement of clause 12A that as soon as the offence referred to in column I
of the said clause is proved, some penalty has to be imposed and clause 12A
indicates that two penalties have to be imposed and not one there being
discretion in regard to the penalty imposable against the master as regards the
amount of the said penalty.
Therefore,
we do not think it would be possible to take the view that if there are
extenuating circumstances attending the contravention of Section 52A in a given
case the Customs Authority can refrain from confiscating the vessel.
Confiscation
of the vessel is the immediate statutory consequence of the finding that an
offence under clause 12A is established, just as the imposition of some penalty
against the master is another statutory consequence of the same
contravention." Section 183 lays down that whenever an order of
confiscation is made the Adjudicating Authority has to give the owner of the
goods which includes the vessel, an opportunity to pay fine in lieu of
confiscation. Section 183 confers discretion on the Authority to determine what
amount of fine should be imposed.
Section
11 of the M.P. Opium Act as amended where the words "shall be liable to
confiscation" occurred came up for consideration before this Court in the
case of State of Madhya Pradesh v. Azad Bharat Finance Co. Ltd . & Anr.,
[1966] (Supp) SCR 473 a truck hired by one Harbhajan Singh from the respondent
company was found on search to have contained contraband opium. Harbhajan Singh
was tried for offences u/s 9A and 9B of the opium Act (10 of 1979). The Magistrate
while acquitting him on the ground that he had no knowledge, ordered for
confiscation of the truck as the word "shall" occurring in Section 11
of the Act make it mandatory to confiscate. Sessions Judge on revision affirmed
the order of the Magistrate. High Court 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
657 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 transported should be confiscated or not
having regard to all the circumstances of the case." The earlier decision
of this Court has not been referred to in this case. Moreover what appears to
have weighed with this court was that unless the owner of the truck knew that
hirer used the truck in transporting contraband opium it would be unjust to
confiscate the conveyance. In the instant case the owner of the vessel has been
defined in Section 2(i) of M.Z.I. Act as including any association of persons,
whether incorporated or not, by whom the vessel is owned or chartered. The charterer
company and its Managing Director, have been convicted for contravention of
Section S of the Act and Rule 8(1)(q) of the Rules framed thereunder and
penalty has been awarded. So the charterer who is deemed to be the owner of the
trawler was held guilty of the offence of breach of terms of the permit.
In the
case of Superintendent and Legal Remembrancer of Legal Affairs to the Govt. Of
West Bengal v. Abani Haity, [1979] 3 SCR 472 the car belonging to Abani Haity
was searched and contraband ganja was found concealed in the car owned by Abani
Haity. The Magistrate passed order of conviction and sentence against him but
he did not make any order for confiscation of the car used for transporting the
contraband article. This matter ultimately came up before this Court in an
appeal by special leave. This Court held on an interpretation of Section 63(1)
of the Bengal Excise Act, 1909 that the words "shall be liable to confiscaticn"
as used in the context convey an absolute imperative to confiscate the vehicle
used for transport of the contraband goods. It was further held that it is
incumbent on the Magistrate to pass, at the conclusion of the trial, in
addition to the conviction and sentence. an order of confiscation of the car by
which such offence 658 has been committed. The word "liable"
occurring in many statutes, has been held as not conveying the sense of an
absolute obligation or penalty but merely importing a possibility of attracting
such obligation, or penalty even where this word is used along with the words
"shall be".
Thus,
where an American Revenue Statute declared that for the commission of a certain
act, a vessel "shall be liable to forfeiture", it has held that
"these words do not effect a present absolute forfeiture but only give a
right to have the vessel forfeited under due 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 answer stating that the Zip Chains imported by him were
chains of the kind free import of which has been permitted and as such no licence
to import them was necessary. The petitioner was again asked by the Customs
authorities whether he wanted a personal hearing. The petitioner did not reply
to the same. The Collector of Customs made an order confiscated the goods and
imposing a penalty of Rs.1,000 on the petitioner. The petitioner thereafter
filed an appeal which was dismissed on the ground that it was barred by
limitation. The petitioner thereafter made an application for quashing the
order of confiscation of goods and imposing penalty on him. This application
was dismissed. The petitioner thereafter filed an application under Article 32
of the Constitution challenging the validity of the order made against him. The
order of confiscation was questioned on the ground that it did not give the
petitioner an option to pay a fine in lieu of confiscation, as provided in
Section 183 of the Sea Customs Act. The Imports and Exports (Control) Act, 1947
by Section 3(1) empowers the Central Government to make provisions for
prohibiting, 659 restricting or otherwise controlling, in all cases or in
specified classes of cases, the import, export, carriage coastwise or shipment
as ships' stores of goods of any specified description. Sub-section (2) of that
Section provided that all goods to which any order under sub-section (1)
applies shall be deemed to be goods of which the import or export has been
prohibited or restricted under section 19 of the Sea Customs, 1878, and all the
provisions of that Act shall have effect accordingly, except that section 183
thereof shall have effect as if for the word "shall" therein the word
"may" was substituted.
It was
held that the goods imported into India contrary to the prohibition or restriction shall be liable to
confiscation and any person concerned in such importation shall be liable to a
penalty not exceeding three times the value of the goods or not exceeding one
thousand rupees.
Under
Section 167(8) of the Sea Customs Act the provisions of confiscation of goods
illegally imported are mandatory.
The
only question adjudicated before this Court was that as no option was given to
pay fine in lieu of confiscation u/s 183 of the Sea Customs Act, the order
should be held bad. It was held that in view of the substitution of the 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 foreign
vessels clearly enjoins in sub-section 6 that a person holding permit shall
ensure that every person employed by him complies, in the course of such
employment with the provisions of the act or any rule or order made there under
and the conditions of such permit.
660
Rule 8(1) (q) inserted by M.Z.I Rules as amended in 1982 expressely prohibits
fishing by foreign vessel chartered by Indian citizens in a depth less than 40
fathoms in any exclusive economic zone of India. Infringement of this rule as
well as violation of the provisions of Section 5 of the Act and the conditions
of permit will make the masters of the vessel as well as the company and the
Managing Director or Secretary of the Company chartering the vessel liable to
conviction and sentence of penalty expressly provided in section 12 of the said
Act. Section 13 also in clear and unambiguous terms says that on the conviction
of the person i.e. the master and the charterer of an offence under Sections 10
or 11 or 12 the vessel used in connection with the offence together with the
fish on board such ship or the sale proceeds of the sale of such fish, stores,
cargo shall also be liable to confiscation. Viewed in the context the words
"shall also be liable to confiscation" do not leave any discretion to
the Magistrate or the court to make no order of confiscation of the vessel as
soon as the masters of the vessel are convicted u/s 10 or 11 or 12 of the said
Act. The Legislative intent in making this provision is to provide deterrent
punishment to prohibit fishing in exclusive economic zone of India by foreign
vessel in infringement of the Act and the rules framed thereunder and the
conditions of permit or licence. Viewed in this context Section 13 mandates
that on conviction of the master and charterer of an offence under Section 12 not
only penalty of fine shall be imposed but the vessel used in or in connection
with the commission of such offence has to be confiscated. It is not open to
the Court to consider the graveness of the offence and other extenuating
circumstances and to make no order for confiscation of the offending vessel
concerned. Confiscation of the vessel is the immediate statutory consequence of
the finding that an offence either under Section 10 or 11 or 12 has been proved
and its master has been convicted. Section 13 is thus mandatory and it is not
open to the court as soon as the masters of the vessel is convicted of an
offence under Section 12 and is awarded penalty to refrain from making an order
confiscating the offending vessel.
For
the reasons aforesaid we dismiss all these appeals and affirm the judgments and
orders of the High Court. The vessels have been detained in Bombay Port after apprehending them on July 26, 1984 and a huge amount has to be paid as port charges.
Considering the facts and circumstances of the case the Port Authorities at Bombay may consider if an application is
made by the parties for exemption or partial exemption of the same favourably
in view of the order of confiscation of the trawlers. There will be no order
for costs.
S.L.
Appeals dismissed.
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