N Criminal Appeal Nos
642 656 of 1987
From the Judgment and order dated 2441987 of the High Court of Bombay in Criminal Appeal Nos 495 496 497 660 635 636 and 637 of 1986
AK Sen AK Goel Ajit Pudussery and MD Rijhwani for the Appellants
MK Banerjee Solicitor General AK Ganguli Hemant Sharma RP Srivastave C Ramesh and CV 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 4387
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 SD Baijal against the acquittal of accused Nos 3 and 4 ie 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 MZI 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 SD 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 54 of MZI Act and in violation of Maritime Zones of India Rules in short MZI Rules 1982 as amended
They were prosecuted by Additional Chief Metropolitan Magistrate 8th Court Ballard Estate Bombay on the complaint of Commander SD Baijal filed as authorised officer under section 19 of the MZI Act
The masters of the two trawlers the respondent Nos 2 and 3 of this appeal were convicted and sentenced to pay a fine of Rs60000 and Rs40000 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 MZI 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 SD Baijal filed criminal appeal No 496 of 1986 against the order of acquittal of respondent Nos 4 and S ie 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 12b of MZI 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 RI for one year to SI for 9 months and from RI for 9 months to SI for 6 months
In criminal appeal No 496 of 1986 the accused respondent Nos 3 and 4 ie the Managing Director and the Company were convicted and sentenced to pay a fine of Rs30000 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 81q and they were convicted under section 12a instead of section 12b of the MZI 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 ie accused Nos 1 and 2 for contravening Rule 81G read with Rule 16 and Section 20b of MZI Act and sentenced them to pay a fine of Rs60000 and Rs40000 respectively in default of payment of fine to suffer RI 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 ie the Charterer Company and its Managing Director
A No 497 of 1986 filed by Cdr
SD Baijal against the order acquitting accused Nos 3 and 4 ie 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 Rs30000 each in default to suffer SI for 4 months
The order of confiscation of the two trawlers was also maintained
A No 63786 filed by the masters of the trawlers was dismissed with the modification that the conviction made us 12b was altered to 12a of MZI Act and the sentence of RI for 1 year and 9 months respectively in default payment of fine were modified as SI for h months and S months respectively
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 Rs30000 and Rs40000 on accused Nos 1 and 2 respectively for contravening Rule 81g and Rule 16 of the M Z I Rules and also of the offence us 5 of the Act and imposing penalty us 12b of the MZI Act
The Magistrate however acquitted the accused Nos 3 and 4 ie 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 us 12b of MZI Act was altered to one us 12a of the said Act
A No 495 of 1986 filed on behalf of the prosecution was allowed and the accused Nos 3 and 4 ie the Charterer Company as well as the Managing Director of the Company were convicted and sentenced to pay a fine of Rs30000
The vessel as well as the fishing equipment were confiscated and the same were directed to vest in favour of the Central Government
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 ie the masters of the vessel to pay a fine of Rs60000 and Rs40000 respectively in default to undergo RI 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
A No 66086 was filed by the Charterers
A No 635 of 1986 was filed by the masters of the trawlers
A No 635 of 1986 was dismissed with the modification that conviction and sentence passed us 12b of the MZI Act was altered to one us 12a 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 Sl
for 4 months instead of RI for 6 months The order of confiscation of trawlers passed by the Magistrate was also confirmed
The facts and issues involved in all these appeals being similar we dispose of these appeals by a common judgment
It has been first contended on behalf of the appellant that at the time of apprehension of the trawlers no fish was found on board and the net was not wet
There was no evidence that fish on board was seized nor there was any evidence to show what had happened to fish or who put the fish in the hold of the trawlers
It has therefore been submitted that no presumption under section 22 of the said Act can be drawn that the trawlers were engaged in fishing within the exclusive economic zone of India in contravention of the provisions of the Act and the Rules framed 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 81q of MZ
I Rules
Condition 2S of the permit provides that any condition could be imposed which would be binding on the charterers masters of the trawlers
Rule 81q 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 12a 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 Rs5 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 MZI 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 MZI 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 Rs15 lakhs where the contravention takes place in an area within the exclusive economic zone of India the punishment of fine will not exceed 651 rupees ten lakhs
Similarly for contravention of licence the punishment of fine will not exceed rupees ten lakhs whereas in case of contravention of the provisions of the permit in respect of the area of operation or method of fishing the punishment of fine will not exceed rupees five lakhs and in any other case the punishment of fine will not exceed rupees fifty thousand
Referring to these provisions providing for different kinds of penalty it has been urged that the confiscation of the vessel for contravention of the permit is not warranted in as much as the punishment provided for such contravention us 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 MZI 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 ie 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 MZI 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 vs Azad Bharat Finance Co  Anr 1966 Supp SCR 473 Indo China Steam Navigation Co Ltd vs Jasjit Singh Addl
Collector of Customs  Ors  and Superintendent and Legal Remembrancer of Legal Affairs to the Govt
Of West Bengal vs Abani Maity  have been cited at the bar wherein similar words shall also be liable to confiscation have been used
It is convenient to ascertain the legal position before deciding the question raised
In the Statement of objects and Reasons of The Maritime Zones of India Regulation of Fishing by Foreign Vessels Act 1981 it is stated 652 There has been an increase in poaching activities of foreign fishing vessels in our exclusive economic zone
There have also been instances of foreign fishing vessels chartered by Indian parties indulging in such activities
To prevent such activities and to protect our fishermen from the hardship caused by poaching vessels it is necessary to regulate fishing activities by foreign fishing vessels and to provide for deterrent punishment by way of heavy fines and confiscation of foreign fishing vessels engaged in such activities
Section 2a 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 2i owner of vessel a includes any association of persons whether incorporated or not by whom the vessel is owned or chartered Section 2j defines permit meaning a permit granted or deemed to have been granted under section 5
Section 3 states that subject to the provisions of the act no foreign vessel shall except under and in accordance with a a licence granted under section 4 or b a permit granted under section 5 by the Central Government be used for fishing within any maritime zone of India
Section 4 provides for procedure for making application for licence by the owner of a foreign vessel for fishing within any maritime zone of India and grant of licence by Central Government
Section 5 prohibits fishing by Indian citizens using foreign vessels within any maritime zone of India without obtaining permit and the procedure for grant of permit to charterer has been specified therein
Sub section 6 of Section 5 of the Act provides A person holding a permit under this section shall ensure 653 that every person employed by him complies in the course of such employment with the provisions of this Act or any rule or order made 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 12a 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 12b 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 MZI Act has been enacted with 654 the object of preventing illegal poaching of fishes by foreign vessels including foreign vessels chartered by Indian parties by providing deterrent punishment to protect Indian fishermen
The objects and reasons of the Act are to be taken into consideration in interpreting the provisions of the Statute and not the debates in Parliament on the Bill
This has been observed by this Court in KP Varghese vs The Income tax officer Ernakulam and another  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 81q of Maritime Zone of India Rules as amended in 1982 as well as in breach of the provisions of the said Act and the terms and conditions of permit issued under Section 5 of the said act
Section 8 under the heading Prohibition of fishing in Maritime zone of India by foreign vessels expressly prohibits foreign vessels from fishing in maritime zone of India except under and in accordance with a licence or permit granted by Central Government and breach of the same has been made punishable under Section 10 of the said Act
Similarly violation of the terms and conditions of licence and permit granted under Sections 4 or 5 is punishable under Sections 11 or 12 respectively of the said Act
655 Section 13 of the said Act expressly says that besides conviction and sentence of the masters of the vessels and charterers the vessel is little to be confiscated with fishes therein
The contention on behalf of the appellants is that the words shall also be liable to confiscation as used in Section 13 of the said Act do not mean that it is mandatory to confiscate the vessel ie 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 vs Jasjit Singh Additional Collector of Customs  ors
  the foreign vessel Eastern Saga  arrived at Calcutta from the Far East carrying a legitimate cargo
On its arrival at the port the Custsoms officers on search found a hole in sailors  accommodation which was covered with a piece of wood and over painted
From the hole the Customs officers found out a large quantity of gold in bars valued at about Rs23 lakhs
The Additional Collector of Custom found that the vessel had clearly rendered itself liable to confiscation under section 16712A of because it had infringed the provisions of Section 52A of the said Act
He also confiscated the gold bars under Section 1678 read with Section 23A of the Foreign Exchange Regulations Act
He also directed that Eastern Saga  be confiscated us 16712A of the said Act and in lieu of confiscation he gave the owners of the ship an opportunity to pay a fine of Rs25 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 16712A provides that if a vessel contravenes section 52A it shall be liable to confiscation
It was held 
The context seems to require that it is not open to the Customs to refuse to confiscate the vessel on the ground that there are any extenuating circumstances surrounding the contravention of Section 52A in a given case and that it would be unfair to impose the penalty of confiscation
Two penalties are prescribed one is the confiscation of the ship and the other is a fine against the master
In regard to the latter penalty it is within the discretion of the Customs Authority to decide what amount of penalty should be imposed just as in the case of the first penalty it is not open 656 to it to say that it would not impose the penalty of confiscation against the offending ship so in the case of the second penalty it is not open to it to say that it will not levy any penalty against the master 
It must be regarded as an elementary requirement of clause 12A that as soon as the offence referred to in column I of the said clause is proved some penalty has to be imposed and clause 12A indicates that two penalties have to be imposed and not one there being discretion in regard to the penalty imposable against the master as regards the amount of the said penalty
Therefore we do not think it would be possible to take the view that if there are extenuating circumstances attending the contravention of Section 52A in a given case the Customs Authority can refrain from confiscating the vessel
Confiscation of the vessel is the immediate statutory consequence of the finding that an offence under clause 12A is established just as the imposition of some penalty against the master is another statutory consequence of the same contravention
 Section 183 lays down that whenever an order of confiscation is made the Adjudicating Authority has to give the owner of the goods which includes the vessel an opportunity to pay fine in lieu of confiscation
Section 183 confers discretion on the Authority to determine what amount of fine should be imposed
Section 11 of the MP 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 vs Azad Bharat Finance Co Ltd   Anr 1966 Supp SCR 473 a truck hired by one Harbhajan Singh from the respondent company was found on search to have contained contraband opium
Harbhajan Singh was tried for offences us 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 2i of MZI 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 81q 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 vs Abani Haity  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 631 of the Bengal Excise Act 1909 that the words shall be liable to confiscaticn as used in the context convey an absolute imperative to confiscate the vehicle used for transport of the contraband goods
It was further held that it is incumbent on the Magistrate to pass at the conclusion of the trial in addition to the conviction and sentence
an order of confiscation of the car by which such offence 658 has been committed
The word liable occurring in many statutes has been held as not conveying the sense of an absolute obligation or penalty but merely importing a possibility of attracting such obligation or penalty even where this word is used along with the words shall be
Thus where an American Revenue Statute declared that for the commission of a certain act a vessel shall be liable to forfeiture it has held that these words do not effect a present absolute forfeiture but only give a right to have the vessel forfeited under due process of law
Similarly it has been held that in Section 302 Indian Penal Code the phrase shall also be liable to fine does not convey a mandate but leave it to the discretion of the Court convicting an accused of the offence of murder to impose or not to impose fine in addition to the sentence of death or transportation for life
 In the case of FN Roy vs Collector of Customs Calcutta  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 us 1678 of the 
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 Rs1000 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 
The Imports and Exports Control Act 1947 by Section 31 empowers the Central Government to make provisions for prohibiting 659 restricting or otherwise controlling in all cases or in specified classes of cases the import export carriage coastwise or shipment as ships  stores of goods of any specified description
Sub section 2 of that Section provided that all goods to which any order under sub section 1 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs 1878 and all the provisions of that Act shall have effect accordingly except that section 183 thereof shall have effect as if for the word shall therein the word may was substituted
It was held that the goods imported into India contrary to the prohibition or restriction shall be liable to confiscation and any person concerned in such importation shall be liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees
Under Section 1678 of the 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 us 183 of the  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  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 MZI 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
660 Rule 81 q inserted by MZI 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 ie 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 us 10 or 11 or 12 of the said Act
The Legislative intent in making this provision is to provide deterrent punishment to prohibit fishing in exclusive economic zone of India by foreign vessel in infringement of the Act and the rules framed thereunder and the conditions of permit or licence
Viewed in this context Section 13 mandates that on conviction of the master and charterer of an offence under Section 12 not only penalty of fine shall be imposed but the vessel used in or in connection with the commission of such offence has to be confiscated
It is not open to the Court to consider the graveness of the offence and other extenuating circumstances and to make no order for confiscation of the offending vessel concerned
Confiscation of the vessel is the immediate statutory consequence of the finding that an offence either under Section 10 or 11 or 12 has been proved and its master has been convicted
Section 13 is thus mandatory and it is not open to the court as soon as the masters of the vessel is convicted of an offence under Section 12 and is awarded penalty to refrain from making an order confiscating the offending vessel
For the reasons aforesaid we dismiss all these appeals and affirm the judgments and orders of the High Court
The vessels have been detained in Bombay Port after apprehending them on July 26 1984 and a huge amount has to be paid as port charges
Considering the facts and circumstances of the case the Port Authorities at Bombay may consider if an application is made by the parties for exemption or partial exemption of the same favourably in view of the order of confiscation of the trawlers
There will be no order for costs
SL Appeals dismissed


Summary:
 Five persons were tried for the murder of a widow out of which one turned approver
There was no direct evidence in the case
The only evidence was the evidence of the approver and the other evidence regarding recovery of articles by three witnesses
The trial court discarded the testimony of two witnesses who had identified some articles
The third witness the son of the deceased and who had identified the articles was not examined at the trial
The court however convicted all the accused persons under section 302 read with section 34 lPC
The High Court maintained the conviction of three persons on the finding that the evidence of identification was sufficient to corroborate the testimony of the approver
In the appeals by special leave by two of the accused it was contended for the State that although the son of the deceased had not been examined at the trial he had identified articles at the test identification and therefore that evidence was sufficient to corroborate the testimony of the accomplice
Allowing the appeals  HELD It is established as a rule of prudence that the testimony of an accomplice if it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime
603A B Haroon Haji Abdulla vs State of Maharashtra  and Ravinder Singh vs State of Haryana  referred to
In the instant case the evidence of the son of the deceased could 600 not be looked into because i what he identified and stated to the Magistrate who conducted the identification parade was only a hearsay evidence and that evidence could only be used to corroborate his testimony if he was examined at the trial and ii what he stated to the Magistrate was not subjected to cross examination and was at the back of the accused
Further there is nothing about identification or anything to connect the articles with the crime and in such a situation the evidence of recovery is not at all relevant as it is not connected with the crime
It could not therefore be used as evidence against the accused
604C D The only evidence against the accused was that of the approver
He has claimed to be a spectator at every moment but has not participated at any stage
Apart from it the initial story appears also to be absolutely unnatural as according to him he did not know anyone of the accused persons but a month before the incident they took him into confidence and told him to join them
The evidence of the witnesses as a whole does not appear to be natural version and is not such which inspires confidence
Moreover there was no corroboration at all from another independent circumstance or source of evidence
The conviction of the appellant therefore could not be maintained
604F H