Appeal No 770 of 1962
Appeal by special leave from order No 1742 of 1960 of the Government of India Ministry of Finance Department of Revenue dated December 17 1960 in Custom Revision Application No 1631 of 1959 andor from the order dated May 12 1959 of the Central Board of Revenue in Customs Appeal No 151 of 1959 and Petition No 138 of 1961 Petition under article 32 of the Constitution of India for the enforcement of Fundamental Rights
Sachin Chaudhury B Sen and section N Mukherjee for the appellant in CA No 77062 and the petitioner in peti tion No 1381961
section V Gupte Additional Solicitor General D R Prem and R H Dhebar for the respondents in CA No 77062 and petition No 138 of 1961
February 3 1964
The Judgment of the Court was delivered by GAJENDRAGADKAR CJ
This appeal by special leave raises a short question about the true scope and effect of section 52A of the No 8 of 1878 597 hereinafter called the Act 
The appellant the Indo China Steam Navigation Co Ltd which carries on the business of carriage of goods and passengers by sea owns a fleet of ships and has been carrying on its business for over 80 years
One of the routes plied by its ships is the Calcutta Japan Calcutta route
An order has been passed by the Customs Authorities confiscating the appellant s motor vessel Eastern Saga under section 16712A of the Act and giving the appellant the option under section 183 of paying a fine of Rs 25 lakhs in lieu of confiscation
The appellant contends that this order has been based upon a misconstruction of the provisions of section 52A
The vessel Eastern Saga has 6631 gross registered tons and 4441 net registered tons
It has an overall length of 475 2 12 a breadth of 59 3 and a summer draft of 24 7
lit carries a crew of 14 officers and 56 seamen
It appears that the vessel has 119 separate rooms including 34 crews  cabins 8 passengers  cabins a sailor s mess a fireman s mess a comprador s office a hospital a boys  mess a ship s office an engineer s office a saloon lounge pantry chart room radio officer s cabin captain s cabin wheel house alleyways and stairways
It is clear that the vessel is a well equipped big vessel
It has also domestic refrigeration compartments which are lined by insulated walls
All crew accommodation in the vessel has been in sulated as required by statutory regulations
Such insula tion consists of a sheathing or panelling of fire board or similar material tacked to wooden frames inserted between the stiffeners jutting out from the steel bulkheads or walls of the said vessel in consequence of which hollow spaces are left between the panelling and the walls of the vessel The said panelling or sheathing formed a removable feature or furnishing of the said vessel
The Eastern Saga  arrived at Calcutta from the Far East on October 29 1957
In the course of its ordinary voyage as a cargo vessel carrying a legitimate cargo of 24815 packages of general merchandise weighing 1506 tons it was rummaged by Calcutta Customs Officers on the 30th and 31st October and on the 12th November 1957 598 On search being made of the vessel s domestic refrigeration compartments a two tier white painted shelf was found fixed to the insulated wall of the handling room
The screws which seemed like holding the shelf to the wall
in fact did not do so they had been hammered flat and could not be turned by a screw driver the shelf was held by some wooden plugs which had been hidden below a coat of paint below the shelf there was a hole in the panelling closed with a plug this hole gave access to the insulation space of the compartment it was of the size 7X4 12
Nothing was found hidden in that space
A cabin on the forecastle of the vessel was then searched and two rectangular openings in the cabin wall panelling were discovered behind a steel clothes locker which was screwed to the wall
One of these was closed with a wooden cover
They measured 5X 13 and 5 X 5 respectively
Nothing was found hidden in either of these two spaces
The cabin marked Compradoree  was also searched and when a wooden bench which was screwed to the wall panelling was removed two rectangular holes were found in the panelling behind the bench
These holes which were covered with wooden plugs and overpainted measured 5 X 4 12 and 8 X2 12
Nothing was found in these spaces either
The cabin of No 1 Fitter was then searched and two rectangular holes were found in the visible part of the wall panelling which had been filled in and overpainted they were respectively 7 12X 10 12 and 12 X 12 in size
Nothing was found hidden in these spaces
That took the
searching party to the sailors  accommodation where a hole measuring 2 12X5 12 was found in the wall paneling behind the back batten of a wooden seat which had been screwed to the wall
This hole was covered with a piece of wood and over painted
The hole opened into a space and in that space the Customs Officers found a large quantity of gold in bars
Further search in the sailors  accommodation led to the discovery of a hole in the wall panelling behind a steel clothes locker which was closed with a wooden plug
Nothing was found in it
That is how a search was made by the customs officers on Eastern Saga and in one of the holes a large quantity of gold in bars was discovered
599 On November 12 1957 notices were served on the owners  Agents at Calcutta Ms Jardine Henderson and Co Ltd and on the master of the vessel Captain Kiunear respectively to show cause why the vessel should not be con fiscated under section 16712A since it had contravened section 52A of the Act and penal action should not be taken against the agents and the master in that behalf
On the same day a notice in similar terms was issued to Kwok Cho a member of the crew of the Eastern Saga who had come forward to claim the gold which was discovered as a result of the search
On November 13 1957 a further notice to show cause was served on the master in regard to another hole which had been discovered after the issue of the first notice
The agents and the master thereupon sent elaborate replies setting forth their pleas that in law no action could be taken against them
The master pleaded that he had no knowledge of the presence of gold or unauthorised holes in the ship and had taken all reasonable precautions in accordance with the Company s instructions
He fully adopted the other pleas made by the agents
The agents substantially relied on a report by Ms Norman Stewart and Co Marine Surveyors Naval Architects and Consulting Engineers and urged that unless special extensive time consuming and uneconomic detailed searches were carried out it was impossible to discover special hiding places like the ones discovered on the search made by the customs authorities
They also urged that they had no knowledge about the holes or about the gold which was discovered from one of them
They referred to the statement made by Kwok Cho and alleged that the said statement showed that gold could be smuggled by a smuggler without the knowledge of the master and the owners of the ship
The ship moves on High seas from place to place during the course of business and it was impossible that the master though in the ship would know anything about the criminal activities of a smuggler carried on in nooks and corners of the ship and it was inconceivable that the owners of the ship would ever know what was happening on the ship during its travel on the High seas
They also relied on the fact that they had taken all the precautions which could be taken reasonably and had issued express and definite instructions 600 to their crew against committing any offence like smuggling
On receiving the replies sent by the agents the masterand Kwok Cho the Additional Collector of Customs heard the appellant and on November 23 1957 he passed the impugned order
He held that having carefully considered the written explanations tendered and oral arguments urged before him he was satisfied that the preventive measures taken by the owners the agents and the master proved to be hopelessly inadequate and ineffective
He accepted their
plea that they need not be regarded as persons concerned in the illegal importation of gold into India within the meaning of section 1678 of the Act
He also upheld their plea that the openings found in the cabin of No 1 Fitter did not attract the provisions of section 16712A
In regard to other matters the explanations offered appeared to him to be unsatisfac tory and unacceptable
His conclusion therefore was that the vessel had clearly rendered itself liable to confiscation under section 16712A because it had infringed the provisions of section 52A
The quantity of gold found on the vessel was approximately of the value of Rs 237949080 nP Rs 10924 nP per tola and he noticed the fact that this was the recovery made in one of the several cavities found on the ship
He was therefore inclined to infer several holes discovered in the vessel indicating the extent to which the hiding places were used for contravening section 52A
That is why he confiscated 1358 gold bars discovered as a result of the search absolutely under section 1678 read with section 23A of the Foreign Exchange Regulation Act
He also imposed a personal penalty of Rs 10000 on the sailor Kwok Cho
In regard to the ship he directed that Eastern Saga be confiscated under section 16712A and in lieu thereof he gave the owners of the ship an option to pay a fine of Rs 25 lacs which he directed should be paid within 30 days of the date of the despatch of the order or such extended time as may be allowed
In passing this order the Additional Collector observed that he had taken into consideration the fact that the agents had already suffered some loss due to the vessel s detention at the port
The appellant then preferred an appeal before the Central Board of Revenue
The Board considered the matter and came to the conclusion that none of the contentions 601 raised by the appellant was either warranted or supported by the law as it stands
The Board expressed its concurrence with the conclusions of the Additional Collector that the offence under section 52A of the Act had been proved and the appellant was liable to be dealt with under section 16712A of the Act
In regard to the grievance made by the appellant that the fine imposed by way of option was excessive the Board observed that having regard to the quantity and value of the smuggled gold and other relevant facts it was not inclined to make any change in the said order
The penalty imposed on the master said the Board was also not so large as to need any revision
It is not disputed that the value of the ship is very much more than the amount of Rs 25 lacs imposed by way of fine under section 183
This order was pronounced on May 12 1959
The appellant s attempt to move the Government of India in its revisional jurisdiction failed and its application was dismissed on December 20 1960
The appellant then moved this Court for special leave and it is with the special leave granted by this Court that the present appeal has come before us
At the hearing of this appeal the learned Additional Solicitor General has urged a preliminary objection
He contends that none of the Customs Authorities which had dealt with the appellant s case is a tribunal under article 1361 of the Constitution and so the appeal preferred by the appellant is incompetent
It is true that special leave has been granted to the appellant by this Court but there can be little doubt that even in cases where special leave has been granted at the ex parte hearing of the matter on the petition of the appellant for special leave the respondent can at the final hearing raise a preliminary contention that special leave should not have been granted since the decision judgment or order appealed against has not been pronounced either by a Court or Tribunal within the meaning of article 1361
The Additional Solicitor General argues that neither the Customs Collector nor the Central Board of Revenue nor the Central Government is a Tribunal and so special leave granted to the appellant should be revoked on that ground
It is settled by decisions of this Court that the Customs Officer who initially acts under section 16712A is not a Court 602 or Tribunal though it is also settled that in adjudicating upon the question as to whether section 52A has been contravened by any ship and by such contravention the said ship has made itself liable to confiscation under section 16712A the Customs Officer has to act in a quasi judicial manner
In Shewpujanrai Indrasanarai Ltd vs Collector of Customs and Others1 this Court has held that an order of confiscation or penalty passed under the is not a mere administrative or executive act but is really a quasi judicial act and therefore an application for a writ of certiorari lies in respect of such order under article 226 of the Constitution
In expressing this conclusion section K Das J who spoke for the Court has referred to two earlier decisions where this point had been considered and it was held that in holding his proceedings under the  the Collector acts judicially vide F N Roy vs Collector of Customs Calcutta 2 and Lea Roy Frey vs The Superintendent District Jail Amritsar and Anr3
Similarly in Thomas Dana vs State of Punjab1 this Court has observed that the Collector and other Officers in the hierarchy mentioned by the may have to act judicially in the sense of having to consider evidence and hear arguments in an informal way even so the Act does not contemplate that in doing so the said authorities are functioning as a Court
In Maqbool Hussain vs The State of Bombay etc1 while dealing with the impact of the confiscation of goods under the relevant provisions of section 167 of the Act on the question as to the constitutionality of a subsequent prosecution launched against a person whose goods had been confiscated this Court had occasion to consider the effect of the order of confiscation in relation to the provisions of article 20 Of the Constitution and it was held that the proceeding before the Sea Customs Authorities under the Act was not a prosecution and the order of confiscation was not a punishment inflicted by a Court or Judicial Tribunal within the meaning of article 202 and so the impugned prose 1  2  3  4 1959 Supp
1 SCR 274
5  at p 742
603 cution was not incompetent or invalid
It would thus be seen that one of the points which this Court had to consider in that case was whether the Collector who had passed the order of confiscation was a Judicial Tribunal within the meaning of article 20 and the answer rendered by this Court was in the negative
It is true that in giving this answer this Court has observed that the Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness
The appeals if any lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority
It would be noticed that the last observation is purely in the nature of an biter observation because the status of the Central Board of Revenue or the Central Government is dealing with the appeals or revision applications under section 190 and 191 of the Act did not fall to be considered in that case was not argued and naturally has not been examined and so this observation cannot be treated as a decision on the question which has been argued before us in the present appeal
The result therefore is that it is no longer open to doubt that the Customs Officer is not a Court or Tribunal though in adjudicating upon matters under section 167 of the Act he has to act in a judicial manner
It may be conceded that neither the Central Board of Revenue nor the Central Government is a Court within the meaning of article 136
The question which then arises is can the Central Board of Revenue exercising its appellate power under section 190 of the Act or the Central Government exercising its revisional jurisdiction under section 191 be held to be a Tribunal under article 136 It is clear that before an appeal can be enter tained in this Court under article 136 two conditions have to be satisfied the order impugned must be an order of a judi cial or quasi judicial character and should not be purely an administrative or executive order and the said order should have been passed either by a Court or a Tribunal in the territory of India
It is difficult to lay down any definite or precise test for determining the character of a body which is called upon to adjudicate upon matters brought before it
Sometimes in deciding such a question courts enquire 604 whether the body or authority whose status or character is the subject matter of the enquiry is clothed with the trap pings of a court
Can it compel witnesses to appear before it and administer oath to them is it required to follow certain rules of procedure is it bound to comply with the rules of natural justice is it expected to deal with the matters before it fairly justly and on the merits and not be guided by subjective considerations in other words is the approach which it is required to adopt judicial or quasi judicial approach If all or some of the important tests in that behalf are satisfied the proceedings can be characterised as judicial proceedings and the test of trappings may be said to be satisfied
But apart from the test of trappings another test of importance is whether the body or authority had been constituted by the State and the State has conferred on it its inherent judicial power
If it appears that such a body or authority has been constituted by the legislature and on it has been conferred the State s inherent judicial power that would be a significant if not a decisive indication that the said body or authority is a Tribunal
It is in the light of these considerations that we have to examine the question as to whether the Central Board of Revenue and the Central Government is a Tribunal or not under article 136
Before doing so however we may refer to some of the decisions which were cited at the Bar on this point
In Ms Harinagar Sugar Mills Ltd vs Shyam Sunder Jhun jhunwala and Others1 the question raised before this Court was whether the Central Government while exercising its powers under section 1113 of the No 1 of 1956 is a Tribunal within the meaning of article 136 or not
In dealing with this question this Court first enquired whether while exercising its powers under section 111 of the  the Central Government was required to act judicially or not
The scheme of section 111 was then analysed and it was observed that in an appeal preferred under section 111 there was a lis or dispute between the con testing parties relating to their civil rights and the Central Government was invested with the power to determine that dispute according to law
This dispute was in regard to the claim made by a transferee of a Company s shares to have 1  6o5 his transfer registered in the Company s register and the view which this Court took was that when such a dispute goes before the Central Government under section 111 it has to consider and decide the proposal and the objections in the light of the evidence and not on grounds of policy or expe diency
That is why this Court came to the conclusion that the Central Government was a Tribunal under article 136 of the Constitution
In support of the view taken on this point this Court referred to an earlier decision in Shivji Nathubhai vs The Union of India and Ors
1 where it was held that the Central Government exercising power of review under r 54 of the Mineral Concession Rules 1949 against an administrative order of the State Government granting a mining lease was subject to the appellate jurisdiction of this Court because the power to review was judicial and not administrative
Thus these two decisions show how the character of the adjudication made by the Central Government either under section 1113 of the  or under r 54 of the Mineral Concession Rules 1949 was determined by this Court
As illustrations of cases where the application of the said tests leads to the conclusion that certain authorities cannot be held to be tribunals we may refer to the decisions of this Court in Jaswant Sugar Mills Ltd Meerut vs Lakshmi Chand and Ors2 and Engineering Mazdoor Sabhaand Anrv
Hind Cycles Ltd3
It is in the licht of these decisions that we will proceed to consider whether the Central Board of Revenue and the Central Government can be said to be a Tribunal under article 136 of the Constitution
In considering this matter let us briefly examine the procedure prescribed by the Act in relation to the adjudica tions made under its provisions
Before we do so however we ought to refer to the authorities that function under the Act
Section 3 of the Act refers inter alia to three authorities which function under it
The Chief Customs Authority is the Central Board of Revenue constituted under the 
The Chief Customs Officer is the Chief Executive Officer of Sea customs for any 1  2 1963 Supp 1 SCR 242
3 1963 Supp 1 SCR 625
606 port to which the Act applies and the Customs Collector includes every officer of Customs for the time being in separate charge of a custom house or duly authorised to perform all or any special duties of an officer so in charge
It is by reference to these three categories of officers that the procedure prescribed by the Act has to be considered
Chapter XVII of the Act deals with the procedure relating to offences appeals etc
Section 169 confers on the Customs Officers power to search on reasonable suspicion
Section 170A confers power on the Customs Officer to screen or X ray bodies of persons for detecting secreted goods
Section 171 prescribes the powers of Customs Officer for boarding and searching such vessels
Section 171 A lays down the powers of Officers of Customs to summon persons to give evidence and produce documents
The power to summon a person to give evidence would include the power to administer oath to him under section 4 of Act 1 of 1873
An enquiry held by the Officer of Customs under section 17 1 A is by sub section 4 of section 171 A deemed to be a judicial pro ceeding within the meaning of sections 193 and 228 of the Indian Penal Code
Under section 183 the officer adjudging the matter brought before him under section 167 of the Act is empowered to give an option to a person to pay a fine in lieu of confiscation
Having thus broadly referred to the provisions relating to adjudication by the Customs Officer we would now examine the provisions in regard to appeals and revisions made by the Act
Section 188 provides for an appeal against any decision or order passed by any officer of Customs and it requires that the said appeal must be filed within three months from the date of the order or decision challenged
This appeal lies to the Chief Customs Authority or in such cases as the Central Government directs to any Officer of Customs not inferior in rank to a Customs Collector and empowered in that behalf by name or in virtue of his office by the Central Government
The section further provides that the appellate authority may make such enquiry and pass such order as it thinks fit confirming altering or annulling the decision or order under appeal
The proviso to this section makes it clear that no order passed in appeal can impose upon the person any greater confiscation penalty or 607 rate of duty than has been adjudged against him in the original decision or order
The section adds that every order passed in appeal hall be final subject to the power of revision conferred by section 191
It is thus clear that the orders passed by the Officers of Customs are made appeal able and the appellate authority is required to reconsider the matter hold additional enquiry if thought necessary and decide the contentions raised by the appellant on the merits
Section 189 refers to the requirement of the deposit of duty demanded which has to be made by the appellant pending the appeal and it naturally provides that if as a result of the decision of the appeal the whole or any portion of the amount deposited is not leviable the Customs Collector shall return such amount or portion as the case may be to the owner of such goods on demand by such owner
Section 190 confers upon the Chief Customs Authority the power to remit penalty or confiscation
Section 190A deals with the revisional powers of the Chief Customs Authority and the Chief Customs Officer and section 191 prescribes for the revisional powers of the Central Government
Both the revisional powers specified by section 190A and section 191 can be exercised either suo motu by the revisional authority or on an application made by an aggrieved party in that behalf
That briefly is the scheme of appeals and revisions contemplated by the Act
There is a regular hierarchy of authorities beginning with the Customs Officer who deals with the problems of adjudication initially and ending with the Central Government which is the final revisional autho rity
We may also incidentally refer to Rule 49 of the Rules framed by the Central Government in exercise of powers conferred on it by section 9 c of the Act
This Rule provides that every appeal presented to the Chief Customs Authority under section 188 and every application made to the Governor General in Council under section 191 shall be accompanied by a copy of the decision or order by which the appellant or the applicant is aggrieved
The question which we are consider ing at this stage is whether the appellate authority acting under section 188 and the revisional authorities acting under sections 190A and 191 can be said to be tribunals within the meaning of article 136
608 It is thus clear that after the order of confiscation is made under section 16712A and an option is given to the owner of the offending ship under section 183 the initial proceedings taken under the Act come to an end and a stage is reached for making an appeal against the order of confiscation or the imposition of fine
In the present appeal we are concerned with the subsequent stage of the proceedings because what we have to decide on the preliminary objection raised by the Additional Solicitor General is the status or character of the appellate authority or the Central Gov ernment which exercises its revisional jurisdiction
In our opinion having regard to the scheme of the sections which we have just cited there is no difficulty in holding that the Central Board of Revenue which functions as an appellate authority and the Central Government which exercises revi sional powers are both Tribunals within the meaning of article 136 of the Constitution
A dispute is raised either by way of appeal or revision by the party aggrieved by the order passed by the Customs Officers and that dispute has to be tried by the appellate or the revisional authority in the light of the facts adduced in the proceedings and according to law
All the proceedings under the Act whether before the Customs Officer or whether in appeal or revision have to be conducted in accordance with the principles of natural justice and they are in that sense judicial or quasi judicial proceedings
The fact that the status of the Customs Officer who adjudicates under section 16712A and section 183 of the Act is not that of a tribunal does not make any difference when we reach the stage of appeal or revision
A period of limitation is prescribed for the appeal a procedure is prescribed by Rule 49 that the appeal or revision must be accompanied by a copy of the decision or order complained against and the obvious scheme is that both the appellate and the revisional authorities must consider the matter judicially on the evidence and determine it in accordance with law
It is obvious that heavy fines are imposed in these proceedings and the confiscation orders passed may affect ships of very large value
By his appeal or revisional application the ship owner naturally contends that the order of confiscation is improper or invalid and he sometimes urges that the fine imposed is unreasonable and excessive
Where disputes of this character are raised before the appellate or 609 the revisional authority it would be difficult to accede to the argument that the authority which deals with these dis putes in its appellate or revisional jurisdiction is not a tribunal under article 136
These authorities are constituted by the legislature and they are empowered to deal with the disputes brought before them by aggrieved persons
the scheme of the Act the nature of the proceedings brought before the appellate and the revisional authorities
the extent of the claim involved the nature of the Denalties imposed and the kind of enquiry which the Act contemplates all indicate that both the appellate and the revisional authorities acting under the relevant provisions of the Act constitute Tribunals under article 136 of the Constitution because they are invested with the judicial power of the State and are required to act judicially
Therefore we must over rule the preliminary objection raised by the Additional Solicitor General and proceed to deal with the appeal on the merits
That takes us to the principal question as to the cons truction of section 52A of the Act which has been elaborately argued before us by Mr Sachin Choudhury
Section 52A provides that no vessel constructed adapted altered or fitted for the purpose of concealing goods shall enter or be within the limits of any port in India or the Indian customs waters
This section is the only section included in Chapter VIA and it was inserted by Act 10 of 1957
The plain construction of this section appears to be that whenever a ship answering the description contained in its first part enters or is within the limits of any port in India or the Indian customs waters it contravenes the prohibition prescribed by it
The prohibition is against the construction adaptation alteration or fitting for the purpose of concealing goods
What has to be proved against a vessel which is charged with having contravened section 52A is that there has been a construction adaptation
alteration or fitting and that the said construction adaptation alteration or fitting has been made for the purpose of concealing goods
Therefore if an alteration in a vessel made for the purpose of concealing goods is proved the contravention of section 52A must be inferred
In other words the section prohibits absolutely the entry of vessels which show that there has been any 134 159 SC 39
610 construction adaptation alteration or filling made in them for the purpose of concealing goods
Mr Choudhury contends that the contravention of section 52A cannot be established unless the mens rea is proved against the persons responsible for the alleged contravention
In that connection he has relied on the fact that the section makes no difference between concealed goods which are not contraband and those which are contraband
In other words the argument is that if an alteration is proved to have been made for the purpose of concealing goods which are legitimately carried by the vessel even so the contraven tion would attract the provisions of section 16712A of the Act
That being so if the sweep of the prohibition prescribed by section 52A is so wide it is necessary to import the requirement of mens rea in determining its scope
He has also relied on the well recognised principle of criminal jurisprudence that unless a statute creating an offence and providing for its punishment clearly or by necessary implication rules out mens rea as an essential part of the offence no person should be found guilty of the said offence unless his guilty mind is proved
There is no doubt that in Ravula Hariprasada Rao vs The State1 this Court speaking through Fazl Ali J has accepted the observations made by the Lord Chief Justice of England in Brend vs Wood1 that it is of the utmost importance for the protection of the liberty of the subject that a Court should always bear in mind that unless the statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime a defendant should not be found guilty of an offence against the criminal law unless he has got a guilty mind
vide also Sherras vs De Rutzen3
It may also be conceded that offences in respect of which mens rea is not required to be established are usually of a comparatively minor character and sentences imposed against the offenders are therefore not of a severe type and in the present case it cannot be disputed that the con fiscation of the ship may mean a serious loss to the owner 1  2  318
3  921
611 of the ship or imposing a fine against him by way of giving him option in lieu of the confiscation of his ship may also involve the payment of a very large amount and so prima facie there is some force in Mr Choudhary s argument that the element of mens rea should not be excluded in consider ing the scope and effect of section 52A of the Act
On the other hand the scheme of section 167 supports the contention of the Additional Solicitor General that if we read section 52A along with section 16712A it would be clear that the legislature intends by necessary implication the exclusion of mens rea in dealing with the contravention of section 52A Section 16712A provides that if a vessel constructed adapted altered or fitted for the purpose of concealing goods under section 52A enters or is within the limits of any port in India or within the Indian Customs waters such vessel shall be liable to confiscation and the master of such vessel shall be liable to a penalty not exceeding Rs 1000
It would be noticed that in column 1 section 16712A reproduces the material words of section 52A and does not add the words knowingly or wilfully
It is significant that the words knowingly or wilfully are used in several other provisions contained in section 167
Section 16714 and section 167 61 use the word wilfully in respect of the commission of the offences there specified
Similarly section 1673 and section 16781 use the word knowingly and section 16778 uses the word intentionally
Similarly in section 1678 though the words knowingly or wilfully are not used we have the expression concerned in and that may introduce considerations of mens rea
Thus where the legislature wanted to introduce the knowledge or intention actuating the commission of the offence as an essential element of the offence it has used appropriate words to indicate that intention
The failure to use a similar word in section 16712A cannot therefore be regarded as accidental but must be held to be deliberate
In our opinion there is some force in this argument as well
Besides there can be no doubt that in construing a section it would be relevant for the Court to consider whether the construction for which Mr Choudhary contends would not make the provisions of section 52A read with section 167 12A substantially nugatory
If it appears that the adoption 612 of the said construction would substantially defeat the very purpose and intention of the legislature in enacting the said section that would be a legitimate reason for rejecting the said construction
If the words used in section 52A are capable of only one construction and no other and that construction is the one suggested by Mr Choudhary the fact that by adopting the said construction the section would be rendered nugatory would not be of any material significance
If on the other hand two constructions are reasonably possible one of which leads to the anomaly just indicated while the other does not and helps the effectuation of the intention of the legislature it would be the duty of the Court to accept the latter construction
The intention of the legislature in providing for the prohibition prescribed by section 52A is inter alia to put an end to illegal smuggling which has the effect of disturbing very rudely the national economy of the country
It is well known for example that smugglingof gold has become a serious problem in this country and operations of smuggling are conducted by operators who work on an international basis
The persons who actually carry out the physical part of smuggling gold by one means or another are generally no more than agents and presumably behind them stands a well knit Organisation which for motives of profit making undertakes this activity
That is why section 52A makes an absolute prohibition against the entry of a vessel which contains inter alia any alteration made for the purpose of concealing goods
Entry of contraband gold with the help of ships has thus become a serious problem and is intended to be checked by this absolute prohibition
If it was held that the knowledge of the owners of the offending vessel or of its master should be proved before section 52A is held to be contravened in a majority of cases the offending vessels will escape punishment
It is not difficult to imagine that mens rea or guilty mind could rarely be established against the owners of vessels which are traveling on the High seas and it may not be always easy to prove the guilty knowledge even of the master of the ship
If the guilty mind is made an essential constituent of the section it would be very easy both for the owners and the master of the ship to plead that the alleged alteration adaptation or fitting was made with 613 out their knowledge and even contrary to their instructions
It is not difficult to realise in this connection that it would be almost impossible for the customs authorities to establish mens rea in the manner suggested by the appellant
Section 52A refers to the construction for the purpose of concealing goods but it is obvious that no vessel would ordinarily be constructed initially for the purpose of concealing goods
Like the adaptation alteration or fitting the construction also would be made in such a manner as would not be easily detected or discovered
Therefore it seems to us plain that if we are to accept the construction suggested by Mr Choudhary mens rea would rarely be proved against the owners of the vessel or even its master and the section in substance would remain a dead letter on the statute book
In this connection it is necessary to bear in mind that as the heading of the Chapter shows what section 52A aims at is the entry of the vessels and that
in fact is the manner deliberately adopted by the legislature in prescribing the prohibition
It is the entry of the vessel that is prohibited and the use of the negative form adopted by the legislature in enacting section 52A is intended to show that the prohibition is not concerned with the owner of the vessel or the master
the prohibition is concerned with the vessel itself and it provides that a vessel is prohibited from entering the limits of any port in India or the Indian Customs Waters
or remaining there provided it answers the description mentioned in the first part of section 52A
The only safeguard which is legitimately available to the vessel in resisting the charge that it has contravened section 52A is provided by the requirement that the alleged altera tion for instance must be shown to have been initially made for the purpose of concealing goods
If the alteration is shown to serve any operational or functional purpose in the ship that would clearly justify the plea that it was not made for the purpose of concealing goods
It may be that if the alleged alteration adaptation or construction is proved to have been initially made for a functional or operational purpose and it is shown that subsequently it has been used without the knowledge of the master or the owners for the 614 illegal purpose that may raise a triable issue as to whether the alteration falls within the description of section 52A but where the alteration is not shown to serve any functional or operational purpose and its very nature suggests that it was intended to serve some secret purpose it would be easy to draw the inference that its purpose was to conceal goods
Therefore in our opinion there is no doubt that the Customs Authorities were right in holding that the mere fact that the owners of the vessel or the master were not shown to have been privy to the alteration etc
or the concealment of gold bars recovered from the offending ship would not take the case of appellant outside the purview of section 52A
The knowledge of the owners or even of the master is in the context of section 52A entirely irrelevant
What is relevant is the proof of the fact that the vessel answering the description prescribed by section 52A entered within the limits of Calcutta which is a port in India
Mr Choudhary further argued that the alteration on which the case against the appellant is based in the present case cannot be said to be an alteration contemplated by section 52A because it is not an alteration of the vessel
He suggests that the construction adaptation alteration or fitting must be of the vessel as a whole or at any rate of any part of the vessel which can be regarded as its integral or essential part the paneling wall in which the apertures were made cannot be treated as a part of the vessel and so the alteration in question cannot be said to attract section 52A
That in substance is another argument which has been pressed before us on behalf of the appellant
In support of this argument Mr Choudhary referred us to the certificate issued by Mr B Hill who is a Surveyor to Lloyd Register of Shipping united with the British Corporation Register
In this certificate Mr Hill Purports to say that in his opinion the panelling and lining constitute no part of the vessel  the expression vessel is understood for the purpose of its being assigned the notation 100 Al or any other class notation in the Register Book of Lloyds Register of Shipping or for the purpose of the issue of a Loadline Certificate under the Merchant Shipping Acts and that such panelling or lining is not required to be shown in the ship s official 615 plans submitted to Lloyds Register of Shipping in connection with the above purposes
He adds that such panelling is customarily installed in British Vessels for the health and comfort of crew as a method of insulating accommodation
We are not prepared to accept Mr Choudhary s argument that there is any material on the record to show that the panelling is not a part of the vessel
A vessel is defined by section 3 f of the Act as including anything made for the conveyance by water of human beings or property and there seems to be no reason to hold that the panelling is not its integral part
Mr Hill who has purported to give this certificate has not given evidence in the present proceedings and the statements made by him in his certificate have therefore not been tested
Besides his opinion that the panelling does not form part of the vessel as understood for the two purposes mentioned by him in his certificate cannot assist us in determining whether it can be held to be a part of the vessel under section 52A
For whatever purpose panelling may be constructed once it is constructed it becomes a part of the vessel and as such any alteration made in the panelling would attract the provisions of section 52A We must therefore
reject Mr Cboudhary s argument that even if an alteration is proved to have been made in the panels of the vessel section 52A could not be applied
The contention which Mr Choudhary faintly urged before us that the holes made in the panelling walls do not constitute an alteration at all is clearly ill founded because the manner in which the holes were made and the use which was obviously intended to be made of the said holes leave no doubt that they constitute alteration within the meaning of section 52A
Thus our conclusion is that the Customs Authorities were right in holding that the facts proved in the case showed that the appellant s vessel Eastern Saga contravened the provisions of section 52A when it entered the port of Calcutta and as such incurred liability prescribed by section 19712A of the Act
What is the nature of the liability prescribed by section 167 12A is the next question which calls for an answer in the present appeal
We have already seen that section 16712A Provides that if a vessel contravenes section 52A it shall be liable 616 to confiscation and the master of such vessel shall be liable to a penalty not exceeding Rs 1000
Can it be said that the penalty prescribed by section 16712A may in any given case not be imposed against the ship on the ground that the contravention proved against it is of a very trivial character or has been the result of an act on the part of a criminal who acted on his own contrary to the instructions of the master of the ship The words used in the third column of cl
12A are that such vessel shall be liable to confiscation
The context seems to require that it is not open to the Customs Authority 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 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
In its discretion it may impose a very small fine against the master if it is satisfied that the master was innocent and despite his best efforts he could not prevent the contravention of section 52A
If the two penalties prescribed by clause 12A had been alternative the position may have been different but they are independent penalties
one is against the ship and the other is against the master
and so there is no scope for contending that the Customs Authority may refuse to impose one penalty and impose the other or may refuse to impose either of the two penalties
It must be regarded as an elementary requirement of clause 12A that as soon as the offence referred to in column 1 of the said clause is proved some penalty has to be imposed and cl
12A indicates that two penalties have to be imposed and not one there being discretion in regard to the penalty impassable 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 617 Customs Authority can refrain from confiscating the vessel
Confiscation of the vessel is the immediate statutory conse quence 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
In fairness we ought to add that Mr Choudhary did not support the view which appears to have been taken by Sinha J in the case taken before him under article 226 by the Everett Orient Line Incorporated vide WP No 1211959 and CA No 3741961 which have been heard along with this appeal and will be dealt with separately
It appears that in that case Sinha J held that there was discretion in the Customs Authority in the exercise of which it may in a proper case refuse to confiscate the offending vessel
In our opinion this view is not justified by the words of clause 12A of section 167
But the confiscation of the offending vessel under clause 12A is not the end of the matter
In dealing with the offence adjudicated under cl
12A of section 167 the Customs Officer has also to exercise his jurisdiction under section 183 of the Act
In fact section 16712A and section 183 have to be read together and the adjudication proceedings have to be dealt with in the light of the provisions of the said two sections
Section 183 lays down that whenever confiscation is authorised by this Act the officer adjudicating it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit
It is thus clear that in dealing with offences under section 16712A an obligation is imposed upon the Customs Officer to give the owner of the goods an option to pay fine in lieu of confiscation
It is not disputed and rightly that the word goods used in section 183 includes vessels and so when the adjudicating officer was dealing with the present case it was his duty to indicate the fine which the owners of the ship can in their option choose to pay
That is why the construction of clause 12A of section 167 which leaves no discretion in the adjudicating officer in the matter of confiscating the ship does not finally determine the matter
Though confiscation is a statutory corollary of the contravention of section 52A the legislature realised that confiscation of the vessel may cause unnecessary hardship to the owners of the vessel and so a 183 expressly 618 requires the adjudicating officer to give an option to the owners of the offending vessel
Confiscation is no doubt authorised and required by section 16712A but the statutory obligation makes it necessary for the officer to give an option to the owners and so in substance the ultimate penalty which may be imposed on the owners does fall to be determined in the discretion of the said officer
Section 1 8 3 confers discretion on the officer to determine what amount of fine should be imposed in lieu of confiscation and in doing so he will undoubtedly have to take into account an relevant and material circumstances including the extenuating factors on which the owners may rely
Thus the confiscation of the offending vessel which has been taken out of the domain of the Customs Officer s discretion under clause 12A is indirectly brought within his discretion under section 183
Indeed the scheme of section 183 shows that the only penalty which in law the officer can impose is one of confiscation
Having done that he gives an option to the owners of the vessel to pay a fine in lieu of confiscation
There is little doubt that this scheme has been adopted because if the imposition of fine was made an alternative penalty difficulties would have arisen in the way of recovering the fine and so the legislature has provided that the offending ship should be detained if the offence is proved it should be confiscated and the owner of the vessel should be given an option to get his vessel released by paying the fine which may be imposed on him under section 183
The very fact that an option has to be given to the owner shows that the fine imposed under section 183 is not a matter of penalty imposed by the officer as such but is only an option given to the owner
Therefore we are satisfied that on a fair reading of section 16  12A and section 183 of the Act the course adopted by he Customs Authorities is not open to any challenge
Mr Choudhary then attempted to argue that on the merits the Central Board of Revenue was in error in holding that section 52A had been contravened by the appellant s vessel Eastern Saga
We have already indicated in brief the findings recorded by the customs authorities
It is true that the Additional Collector of Customs accepted the plea of the appellant that the owners of the vessel were not concerned with the illegal importation of gold into India within the 619 meaning of section 1678 of the Act but he has also found that the preventive measures taken by the owners the agents and the master for stopping smuggling on board their vessel proved hopelessly inadequate and ineffective
He has also examined the nature of the alterations made and he has concluded that the alterations were made for the purpose of concealing goods
In fact the presence of so many altera tions on this vessel itself would justify the conclusion that they were made for the illegal purpose prohibited by section 52A
But when gold bars 1358 in numbers were actually re covered from one of the holes made in the panelling wall it is impossible to resist the conclusion that the said alteration had been made for the purpose of concealing the said gold
It is clear that the said alterations serve no operational or functional purpose in the ship and the manner in which the said alterations have been made unmistakably indicates the design for concealing goods
If the goods intended to be concealed were not contraband this elaborate designing of the alteration would be wholly unnecessary
Therefore we see no substance in the argument that the Customs Authorities were in error in finding that section 52A had been contravened in the present case
Besides there is no doubt that the question as to whether section 52A had been contravened is substantially a question of fact and this Court would not ordinarily reconsider the matter on evidence with a view to decide whether the said finding is right or not
Mr Choudhary has then argued that the imposition of a fine of Rs 25 lacs is excessive and should be modified by us
He suggests that if such a heavy fine is imposed against a vessel it may indirectly and eventually affect the trade of the country
Besides he urges that the fine appears to be so unreasonable that it may be characterised as vindicative
Incidentally he has argued that in imposing the fine the Additional Collector of Customs took into consideration an irrelevant fact inasmuch as he bore in mind the loss suffered by the appellant during the period that the vessel was detained
There is no difficulty in rejecting the last argument because if the consideration in question was irrelevant it has operated in favour of the appellant and not against it
If that consideration had not weighed in the mind of the Additional Collector 620 he would obviously have imposed a higher fine
Then as to the extent of the fine we are not prepared to hold hat the fine is unreasonable or excessive
We have already noticed the value of the gold illegally imported and we have seen the presence of many suspicious alterations in the panelling walls and other parts of the vessel
It is not easy to detect the illegal importation of gold and so if the Customs Authorities took the view that having regard to the value of the gold imported the presence of a large number of alterations and the value of the ship Rs 25 lacs should be imposed as a fine we cannot entertain the argument that a case is made out for our interference under article 136 of the Constitution
After all the imposition of the fine merely gives an option to the appellant to pay the fine and secure the release of the vessel
Since the amount of the fine imposed is very much less than the value of the vessel it is in the interests of the appellant to get the vessel released
Besides the question as to the propriety of the fine imposed by the Additional Collector of Customs has been examined by the appellate and the revisional authorities and they have seen no reason to interfere with the amount of fine
In such a case the appellant cannot be heard to complain against the impugned order of fine in an appeal under article 136 when no question or principle of law is involved
In this connection we may mention one consideration which has weighed in our mind
It is true that modern criminology does not encourage the imposition of severe or savage sentences against criminals because the deterrent or punitive aspect of punishment is no longer treated as a valid consideration in the administration of criminal law
But it must be remembered that ordinary offences with which the normal criminal law of the country deals are committed by persons either under the pressure of provoked and unbalanced emotions or as a result of adverse environments and circumstances and so while dealing with these crimi nals who in many cases deserve a sympathetic treatment and in a few cases are more sinned against than sinners criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measure
But it may not be appropriate to adopt the same approach in deal 621 ing with every offence committed by a vessel which contra venes section 52A
Illegal importation of gold has assumed the proportions of a major problem faced by the country and the manifold clever and ingenious devices adopted in carrying out these illegal operations tend to show that the organisation which is responsible for them is inspired merely by cupidity because it conducts its operations solely for the purpose of making profit and so it would be open to the Customs Authorities to take the view that the best way to check the spread of these illegal operations is to impose deterrent fines whenever these offences are discovered and proved
Having regard to this aspect of the matter if the Customs Authorities took the view that the fine of Rs 25 lakhs was called for in the present case we see no reason whatever to entertain the plea made by Mr Choudhary that the said fine should be reduced
The argument that the impact of such heavy fines
may adversely affect the trade of the country seems to us to be wholly misconceived and ill founded
There is one more point which must be mentioned before we part with this appeal
Mr Choudhary attempted to argue that if mens rea was not regarded as an essential element of vs 52A the said section would be ultra vires of Articles 14 19 and 311 and as suchunconstitutional and invalid
We do not propose to consider the merits of this argument because the appellant is not only a company but also a foreign company and as such is not entitled to claim the benefits of article 19
It is only citizens of India who have been guaranteed the right to freedom enshrined in the said article
If that is so the plea under article 31 1 as well as under article 14 cannot be sustained for the simple reason that in supporting the said two pleas inevitably the appellant has to fall back upon the fundamental right guaranteed by article 191f
The whole argument is that the appellant is deprived of its property by operation of the relevant provisions of the Act and these provisions are invalid
All that article 311 provides is that no person shall be deprived of his property save by authority of law
As soon as this plea is raised it is met by the obvious answer that the appellant has been deprived of its property by authority of the provisions 622 of the act and that would be the end of the plea under Arta 31  1  unless the appellant is able to take the further step of challenging the validity of the Act and that necessarily imports article 191f
Similarly when a plea is raised under article 14 we face the same position
It may be that if section 52A contravenes article 191f a citizen of India may contend that his vessel cannot be confiscated even if it has contravened section 52A and in that sense there would be inequality between the citizen and the foreigner but that inequality is the necessary consequence of the basic fact that article 19 is confined to citizens of India and so the plea that article 14 is contravened also must take in article 19 if it has to succeed
The plain truth is that certain rights guaranteed to the citizens of India under article 19 are not available to foreigners and pleas which may successfully be raised by the citizens on the strength of the said rights guaranteed under article 19 would therefore not be available to foreigners
That being so we see no substance in the argument that if section 52A is construed against the appellant it would be invalid and so the appellant would be able to resist the confiscation of its vessel under article 3 1 1
We ought to make it clear that we are expressing no opinion on the validity of section 52A under article 19 1 f If the said question were to arise for our decision in any case we would have to consider whether the provisions of section 52A are not justified by article 19 5
That is a matter which is foreign to the enquiry in the present appeal
The result is the appeal fails and is dismissed with costs
The appellant has also filed WP No 138 of 1961 chal lenging the validity of the order passed by the Central Gov ernment in the same matter
Since the appeal preferred by the appellant against the said order is dismissed the writ petition also fails and is dismissed
There would be no order as to costs in the writ petition
Appeal and petition dismissed


Summary:
The appellant carries on the business of carriage of goods and passengers by sea and owns a fleet of ships for that purpose
One of its ships named Eastern Saga arrived at Calcutta and was rummaged by the Calcutta Customs Officers
In the sailors  accommodation a hole measuring 2 12 x 5 12 was found in the wall panelling behind the back batton of a wooden seat which had been screwed to the wall
The hole was covered with a piece of wood and over painted
The hole opened into a space and in that space Customs Officers found 1458 bars of gold valued at more than Rs 23 lacs
Notices were duly served and after hearing the parties the Additional Collector of Customs came to the conclusion that the vessel had rendered itself liable to confiscation under section 16712A because it had infringed the provisions of section 52A
He ordered the confiscation of the ship but gave the owners thereof an option to pay a fine of Rs 25 lacs in lieu of confiscation
The appellant went in appeal to the Central Board of Revenue but that appeal was rejected
The appellant went in revision to the Central Government but the revision petition was also dismissed Me appellant then came to this Court for special leave and obtained the same
Dismissing the appeal Held i The Customs authorities
were right in holding that the facts proved in the case showed that the Eastern Saga nor contravened the provisions of section 52A when it entered the port of Calcutta and hence had incurred the liability prescribed by section 16712A of the Sea Customs Act
ii The fine of Rs 25 lacs was not excessive
Illegal importation of gold had assumed the proportions of a major problem facing the country and it was open to the Customs authorities to take the view that the best way to check smuggling was to impose deterrent fines whenever those offences were discovered and proved
iii Section 52A was not ultra vires articles 14 19 and 311 and hence was not unconstitutional or invalid
The appellant was not only 595 a company but also a foreign company and as such was not entitled to claim the benefits of article 19
The plea under article 311 as well as under section 14 could not be sustained for the simple reason that in supporting the said two pleas the appellant had inevitably to fall back upon the fundamental right guaranteed by article 191f
Before an appeal can be entertained under article 136 two conditions have to be satisfied
The order impugned must be an order of a judicial or quasi judicial character and should not be purely an administrative or executive order
The said order should have been passed either by a Court or Tribunal in the territory of India
It is difficult to lay down any definite test to determine whether a body is a courttribunal or not
Sometimes courts enquire whether that body or authority is clothed with the trappings of a court whether it can compel witnesses to appear before it and administer oath to them whether it was required to follow certain rules of procedure whether it was bound to comply with the rules of natural justice whether it was expected to deal the matters before it fairly justly and on merits and not be subjective considerations and whether it was required to adopt or quasi judicial approach
If all or some of the important tests are satisfied the proceedings can be characterised as judicial proceedings and the test of trappings is satisfied
Likewise if it appears that such a body or authority has been constituted by the legislature and on it has been conferred the inherent judicial power of the State that is significant if not a decisive indication that the said body or authority is a Tribunal
The scheme of the  the nature of the proceeding brought before the appellate and revisional authorities the extent of the claim involved the nature of the penalties imposed and the kind of enquiry which the Act contemplates all indicate that both the Central Board of Revenue and the Central Government while acting as appellate or revisional authorities constitute Tribunals under article 136 of the Constitution because they are invested with the judicial power of the State and are required to act judicially
In order to prove the offence of section 52A against a vessel what is to be moved is that there has been a construction adaptation alteration of fitting and the said construction adaptation alteration or fitting had been made for the purpose of concealing goods
The section prohibits absolutely the entry of vessels which show that there has been construction adaptation alteration or fitting made in them for the purpose of concealing goods in them
It is not necessary for the purpose of section 52A to prove mens rea against the person responsible for the contravention of section 52A
It is impossible to prove such mens rea or guilty mind
The knowledge of the owners or even of the masters is entirely irrelevant
Section 16712A and section 183 have to be read together
Though confiscation is a statutory corollary of the contravention of section 52A section 183 expressly requires the adjudicating officer to give an option to the owners of the offending vessel to pay fine in lieu of confiscation
Confiscation is 596 no doubt authorised and required by section 167 12A but the statutory obligation makes it necessary for the officer to give an option to the owner
The result is that the ultimate penalty which can be imposed on the owners falls to be determined by the adjudicating officer in his discretion
Shewpujanrai Indrasanrai Ltd vs Collector of Customs   F N Roy vs Collector of Customs Calcutta   Leo Roy Frey vs Superintendent District Jail mritsar and Anr
   Thomas Dana vs State of Punjab 1959 Supp
4 SCR 274 Maqbool Hussain vs State of Bombay   Harinagar Sugar Mills Ltd vs Shyam Sundar Jhunjhunwala and Ors   Shivji Nathubhai vs Union of India   Jaswant Sugar Mills Ltd Meerut vs Lakshmi Chand 1963 Supp
1 SCR 242 Engineering Mazdoor Sabha vs Hind Cycles Ltd 1963 Supp 1 SCR 625 Ravula Hariprasada Rao vs The State   Brend vs Wood and Sherras vs De Rutzen 1895 9
referred to