1. The vessel m.v. "JAG DHIR" arrived at the anchorage of Visakhapatnam Port on 16.8.1982 from Vancouver via Singapore On 17.8.1982, the Customs Officers started rummaging the same and the rummaging operations resulted in the recovery of the following goods from Hatch No. 6 in the ship : (a) Recovered from a rexine bag lying over the cargo : (i) Johnie Walker Red Label Scotch Whisky 9 Qrt. Bottles (ii) Black & White Scotch Whisky 4 Qrt. Bottles (b) Recovered from a cloth bag lying over the cargo : (i) Johnie Walker Red Label Scotch Whisky 7 Qrts.
(ii) White' Horse Scotch Whisky 7 Qrts.
(iii) Black & White Scotch Whisky 2 Qrts.
(c) Recovered from a plastic bag lying over the cargo : (i) National Panasonic Cassette Recorders 2 Nos.
Model No. RQ 2157 (ii) 3ohnie Walker Red Label Scotch Whisky 1 Qrt.
(iii) State Express Cigarettes 555 200 Pcs.
While digging the cargo, 2 more packages were recovered. On examination, the said packages were found to contain the following goods of foreign origin : First package covered in the gunny contained (i) Johnie Walker Red Label Scotch Whisky 24 Qrts. (ii) State Express Cigarettes 7 ctns.
1400 pcs. Second package covered in cloth containe (i) J.W. Red Label Scotch Whisky 5 Qrts. (ii) White Horse Scotch Whisky 3 Qrts. (iii) Black & White Scotch Whisky 3 Qrts. (iv) VAT 69 Scotch Whisky 1 Qrt. (v) State Express Cigarettes 555 1000 pcs.
Besides these, search of the fan room also resulted in the recovery of the following goods of foreign origin near the Air Trunking on the.
star-board side as under :- (i) Kodak BKTRA 220 Pocket size camera3 Qrts.
1 No. (ii) Dunhil Cigarettes 3 Cartons 600 Nos. (iii) John Player Spl. Cigarettes 1 carton 200 Nos.
Further search on the vessel on 18.8.1982, 19.8.1982 and 20.8.1982 resulted in the recovery of the following goods from the general places as detailed below :----------------------------------------------------------Date Place of Description of the Qnty.
recovery goods recovered----------------------------------------------------------18.8.1982 Recovered from the 1. Key Chains 16 Nos.
roof panelling in 2. Car Stereo Model 1 No. the unoccupied AS 3020 Recovered from 1. National Panasonic 1 No. the roof pane Radio Cassette19.8.1982 Recovered from 1. Car Stereo Cassette 3 Nos.
underneath the Player with 2 band main Engine Radio Model 862-22111 bed on the star Japan -board side.
2. Toyota Car Stereo 2 Nos.
Cassette Player with On 20.8.1982, after a part discharge of muriate of Potash from Hatch No. 6, digging operations of the cargo were undertaken again, which resulted in the recovery of the following goods of foreign origin : 2. The aforesaid goods were seized under cover of Mahazar attested by witnesses. The Master of the Ship, and the crew members were examined under Section 108(1) of the Customs Act, 1962 and their statements were recorded.
3. After observing the due processes of law, the Additional Collector ordered :- (i) absolute confiscation under Sections 111(d)(e) and (f) of the Customs Act, 1962 of the goods under seizure; (ii) confiscation of m.v. JAG DHIR under Section 115(2) of the Customs Act, 1962 but gave option to the applicant to redeem it on payment of a fine of Rs. 35,000/-; (iii) imposition of a penalty of Rs. 50,000/- each on the applicant and Captain P.K. Chib, Master of m.v. JAG DHIR under Section 112 of the Customs Act, 1962 (Annexure B).
The Tribunal passed order No. CD (MAS) A. 616/83/, CD (MAS)A./84, dated 23.3.1984 affirming the finding of the adjudicating authority in respect of confiscation of the vessel and imposition of redemption fine and setting aside its order imposing personal penalty on the applicant under Section 112 of the Customs Act, 1962 (Annexure A).
4. Under Section 130(1) of the Customs Act, 1962, the applicant has sought to refer to the Honourable High Court of Judicature, Andhra Pradesh, certain question said to be of law and arising from the order of this Tribunal (Annexure C).
5. We have heard both sides. As a result of discussion, it has been agreed that the only question of law that will arise from the order of the Tribunal is a modification of question (e) of the Application; the rest are related to facts and have been dealt with by the order of the Tribunal. Accordingly, we refer the following question to the Honourable High Court of Judicature, Andhra Pradesh under Section 130(1) of the Customs Act, 1962 :- "Whether in the facts and circumstances of the case where the adjudicating authority is satisfied that the contraband goods recovered from the ship are of such nature and quantity as could not be without the knowledge of the Master, the non-framing of the rules contemplated under Section 115(2) of the Customs Act, 1962 could be pleaded as a valid defence against action against the vessel under that Section."