Judgment:
1. Appeal C/653/96 is by Carl F. Peters, the owner of the ship, is against the order of the Commissioner for confiscation of M.V. Wilma, appeal C/654/96 is by Capt. Jens Werner, the captain of he ship against penalty of Rs. 1 crore imposed under Section 112 of the Act.
2. The facts leading to the order by the Commissioner are briefly these. The ship Wilma called at Bombay port in September 1995. The officers of the Directorate of Revenue Intelligence, acting apparently on prior information kept a watch on the ship. They searched three persons found near the ship and recovered from Kaizer Hussein, one of them, 200 pieces of foreign marked gold each weighing 10 tolas. On the statement of Kaizer Hussein, the gold had been given to him by David Macaso, who was a member of the crew of Wilma, they rummaged the ship unsuccessfully. After the rummaging was complete the bo'sun of the ship found another two belts each containing 100 pieces which beneath a frame on which the containers rested and handed them over to the officer.
3. In his order, the Commissioner agrees that there was no specific evidence showing any involvement in the smuggling by the captain or the owner. He says "Investigation conducted by the DRI as well as the statements of all the persons accused in this case have not brought forth any direct or indirect evidence to show that the ship owner or their agents are in any way concerned with the smuggling of gold in the concern". He agrees that David Macaso has not implicated the master or the owner. Elsewhere however, he concludes that "such activities were not with the knowledge of the owner of the vessel but the master and his officers were clearly in the knowledge of these activities but they took no action." The basis for the Commissioner's finding that the master and his officers were aware of the smuggling on board is his perception that the master did not take sufficient precautions to check the ingress of various persons on board the ship. The Commissioners says that if these precautions had been taken the gold could not have been brought on board the ship.
4. We are not able to agree with either of these conclusions. The master, on being questioned, had said he had posted two officers, one on the gangway and one on deck, to carry out checks of persons coming on board the ship. When any ship is in port, a number of persons come on board in connection with various purpose for which the ship is deployed.They would include persons concerned with provisioning the ship, representative of the owner, representative of various government agencies, some person required to carry out repairs to the ship or equipment on it, employees of companies connected with loading an unloading cargo etc. It would not be practicable to ensure that unless the identity of each visitor and the genuiness of the purpose for which he wants to enter the ship is established, they must not be permitted to board it. That the efforts involved and the time taken would defeat the purpose for which the persons visit the ship. It is not possible to agree that if such precautions had been taken, smuggling would not have taken place. Smugglers all over the world use ingenious methods to smuggle goods, and have frequently overcome difficulties caused by vigilance of customs and law enforcement officials. the fact that in the case before us, 200 pieces of gold were recovered by accident by member of the crew from the ship., after it was rummaged by the officers of the Directorate of Revenue Intelligence, following the discovery of gold from Kaizer Hussein is a telling example.
5. The counsel for the appellant relies upon the decision of Mogul Line Ltd. vs. CC 1982 ELT 397. Applying the ratio of the judgement and having regard to the facts before us, we do not find adequate basis to justify the confiscation of the goods. We find even lesser basis for imposition of penalty on the captain, to whom the knowledge of smuggling imputed because he did not take sufficient precaution to invoke section 112.