J.P.S. KHARA Vs. COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS is an appeal directed against the order -in -original No. S/14 -4 -1188/84 Pint, dated 15 -2 -1985, imposing personal penalty of Rs. 5,000/ - on the appellant.

(2.) THE appellant is the master of the vessel mv.'Arunachal Pradesh' belonging to the Shipping Corporation of India. On rummaging of the vessel on two different dates, the officers of Customs, seized certain VCRs, TV, Camera etc. totally valued at Rs. 49,376/ - c.i.f. from the different places of the vessel. These goods were not claimed by any of the crew members. Hence, they were ordered absolute confiscation. A penalty of Rs. 5,000/ - was also imposed on the appellant on the ground that, he, being the master of the vessel, having total control over the vessel and knowing well that the contraband goods could be smuggled in the vessel, was ignorant about the concealment and placement of these contraband goods in the areas, which are generally used by crew members. Hence, the master was either careless or in the know of the fact that the contraband goods were placed in so many places of the vessel. In this view, he was liable to penalty under Section 112 of the Customs Act. The present appeal is only against the order imposing the aforesaid penalty.

(3.) AFTER hearing both the sides, we find that there is no evidence that the master had any knowledge about the concealment of the goods and that he was privy to such concealment. The evidence, which has been brought on record in the form of Log entry indicates that as per his directions, various places of the ship were searched prior to the arrival of the vessel and the officers could not find any contraband goods. It was pleaded before us that the searches were not carried out properly by the officers of the vessel and therefore the master was careless or in the know of the concealment of the goods. These arguments do not appeal to us; because the penal liability is not a vicarious one. In this case, when the entry in the log book shows that as per the direction of the master, various places in the ship were searched by the officers and they could not recover anything and the rummaging party only recovered these goods, this could only indicates that the officers of the ship, who were deputed for such work could not carry out the search effectively. On account of this, the master could not be held liable to penalty, unless there is a positive evidence of his involvement in bringing the goods on the vessel or to the effect that he was in the know of the crew members concealing the goods. In the circumstances, we could not find any reason to sustain the penalty, especially when the vessel is big one, having many crew members, who can bring any goods without any knowledge of the Captain and conceal them in various places in the vessel.