Full Judgment Text
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PETITIONER:
CHERN TAONG SHANG & ANR., ETC., ETC.
Vs.
RESPONDENT:
COMMANDER S.D.BAIJAL & ORS.
DATE OF JUDGMENT13/01/1988
BENCH:
RAY, B.C. (J)
BENCH:
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.
HEADNOTE:
%
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
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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 thereunder.
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
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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
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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 thereunder 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
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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.
JUDGMENT:
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
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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 thereunder.
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
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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
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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
thereunder. 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
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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:
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"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;
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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
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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 thereunder 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
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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
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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.
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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
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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
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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
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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
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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
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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.
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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 thereunder and the conditions of such permit.
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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
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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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