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PETITIONER: CHERN TAONG SHANG & ANR., ETC., ETC.

       Vs.

RESPONDENT: COMMANDER S.D.BAIJAL & ORS.

DATE OF JUDGMENT13/01/1988

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SHETTY, K.J. (J)

CITATION:  1988 AIR  603            1988 SCR  (2) 641  1988 SCC  (1) 507        JT 1988 (1)   202  1988 SCALE  (1)69  CITATOR INFO :  RF         1988 SC 782  (41)

ACT:      Maritime Zones  of India  Act, 1981-Maritime  Zones  of India  Rules,   7982-Interpretation-Applicability   of   the provisions of-Section 13 of the Act-Whether mandatory.

HEADNOTE: %      The facts and issues involved in all these appeals were similar.      Criminal Appeals  Nos. 644-45.87  and Criminal  Appeals Nos. 642-45-/87  were against  the judgment and order of the High Court  of Bombay,  dismissing the Criminal Appeal filed by masters  of two  trawlers against  their  conviction  and sentence and  allowing the  appeal filed  by Commander  S.D. Baijal against  the acquittal  of accused Nos. 3 and 4, i.e. 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 (M.Z.I. Act) read with section  7 thereof and rule 16 of the Maritime Zones of India Rules  1981,  (M.Z.I.  Rules).  The  High  Court  also ordered confiscation  of the  two trawlers, vesting the same in favour  of the Central Government under section 13 of the M.Z.I. Act.      The   two    trawlers   involved-foreign   vessels-were chartered by  the respondents  Nos. 4 & 5 herein for fishing in Maritime  Zone of  India  after  obtaining  permit  under section 5  of the  M.Z.I. Act. The trawlers along with three other pairs  of trawlers  were apprehended and seized by the Coast Guard  ship commanded  by Commander  S.D.  Baijal  for fishing operations  in the exclusive economic zone of India, in violation  of the  terms and conditions of the permit and the  letter  of  intent  granted  to  that  company  by  the Government of India under section 5(4) of the M.Z.I. Act and in violation  of the  M.Z.I. Rules.  They were prosecuted by the  Additional   Chief  Metropolitan   Magistrate  on   the complaint filed  by  Commander  S.D.  Baijal  as  authorised officer under  section 19  of the M.Z.I. Act. The masters of the trawlers,  respondents Nos.  2 and 3, were convicted and

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sentenced to  pay fines  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 642 charges. Of  the  other  three  pairs  of  foreign  trawlers chartered by Indian Company for fishing in the Maritime Zone of India  under the  permit granted  under the  M.Z.I.  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  trawlers  were  similarly  convicted  and sentenced to pay fine for violation of the provisions of the said Act and the Rules thereunder.      The Masters  of the  pair of  trawlers filed a criminal appeal against  their  conviction  and  sentence  while  the complaining Commander  S.D. Baijal  filed a  criminal appeal against the  acquittal of  respondent Nos.  4 and 5 i.e. the Managing Director  of the  company and  the company and also against the  release of  the trawlers in spite of conviction of the  masters under  section 12(b)  of the M.Z.I. Act. The High Court  disposed of  these appeals by a common judgment, allowing the  appeal of  the masters  in part  and modifying their sentence  and convicting.  in the appeal filed by S.D. Baijal,  the  Managing  Director  and-the  Company,  accused respondents Nos.  3 and  4 and sentencing them to pay fines, and ordering  the trawlers  to be  confiscated  with  fishes thereon or the proceeds thereof in case of sale of the same. The High  Court also held the masters of the trawlers guilty under Rule  8(1)(g) and  convicted them  under section 12(a) instead of  section 12(b)  of the M.Z.I. Act, but maintained the sentence of penalty.      Criminal Appeals  Nos. 645-47;87  and Criminal  Appeals Nos. 65051  of 1987  arose out  of a  common judgment of the High Court  in two  criminal appeals,  modifying in part the judgment and  order of  the  Additional  Chief  Metropolitan Magistrate, whereby the Magistrate had convicted the masters of the  trawlers, i.e. accused Nos. 1 and 2 for contravening Rule 8(1)(g)  read with  Rule 16  and section  20(b) of  the M.Z.I. Act  and sentenced  them to  pay fines, in default of payment  of  fine,  to  suffer  rigorous  imprisonment.  The Magistrate also  had made  an order,  confiscating  the  two trawlers alongwith  the fishing  gear,  equipments,  stores, cargo and  fish and  vesting  the  same  together  with  the proceeds of  the sale  of the fish, if any, with the Central Government. The  Magistrate had acquitted the accused Nos. 3 and 4  i.e. the Charterer Company and its Managing Director. The criminal  appeal filed  by Cdr.  S.D. Baijal against the order acquitting  the accused  Nos. 3  and 4  above said was allowed by  the High  Court  and  they  were  convicted  and sentenced to pay fines etc. The order of confiscation of the two trawlers  was maintained.  The criminal  appeal filed by the  masters   of  the   trawlers  was  dismissed  with  the modification that the conviction 643 made under  section 12(b)  was altered  to one under section 12(a) of  the  M.Z.I.  Act  and  the  sentence  of  vigorous imprisonment was modified.      Criminal Appeals  Nos. 648-49.87  and Criminal  Appeals Nos. 65253187  arose out  of a  common judgment  of the High Court, dismissing  the appeals of the masters of the vessels and allowing the appeals filed on behalf of the prosecution. All these  appeals were filed against the judgment and order of the  Additional  Chief  Metropolitan  Magistrate  in  the Criminal case  wherein  the  Magistrate  had  convicted  and

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sentenced the masters of the trawlers with the imposition of fines on accused Nos. 1 and 2 for contravening Rules 8(1)(g) and 16  of the  M.Z.I. Rules  and also  of the offence under section 5  of the Act and imposing penalty u/s. 12(b) of the M.Z.I. Act.  The Magistrate had acquitted the accused Nos. 3 and 4  i.e. the  Charterer Company and its Managing Director and directed  the release  of the  trawlers in favour of the masters of  the trawlers.  The criminal  appeal filed by the masters of  the vessels  was dismissed by the High Court and the conviction  and sentence u/s 12(b) of the M.Z.I. Act was altered to  one under section 12(a) of the Act. The criminal appeal filed  on behalf  of the  prosecution was allowed and the accused  Nos. 3 and 4 i.e. the Charterer Company and its Managing Director, were convicted and sentenced to pay fine. The vessel  and the  fishing equipment  were confiscated and directed to vest in favour of the Central Government.      Criminal Appeal  Nos. 654-55/87 and Criminal Appeal No. 656 of  1987 arose out of a common judgment and order of the High Court  in the  Criminal Appeals filed by the Charterers and the masters of the trawlers, respectively. These appeals were filed  against the judgment and order of the Additional Chief Metropolitan Magistrate in a criminal case against the masters  of   vessel.  The   Magistrate  had  convicted  and sentenced the  accused Nos. 1 and 2, i.e. the masters of the vessel  to   pay  fines;  in  default  to  undergo  rigorous imprisonment, and had confiscated the trawlers together with fishing gear, equipment, stores, cargo and fish therein. The criminal appeal  of the  masters of  the trawlers  had  been dismissed with a modification of the conviction and sentence passed under  section 12(c) of the M.Z.I. Act was altered to one u/s  12(a) of  the Act  and the  criminal appeal  of the Charterers  was   dismissed  with   a  modification  of  the imprisonment awarded  in default  of payment of fine imposed on the  appellant to simple imprisonment instead of rigorous imprisonment. The  order of  confiscation of trawlers passed by the Magistrate was confirmed.      Dismissing all the appeals, the Court, 644 ^      HELD: The  appellants contended that at the time of the apprehension of the trawlers no fish had been found on board and there  was no  evidence that fish on board was seized or that what  had happened  to fish  or who had put the fish in the  hold   of  the   trawlers,  and   that,  therefore,  no presumption under  section 22 of the Act could be drawn that the trawlers  were engaged  in fishing  within the exclusive economic zone  of India in contravention of the provision of the Act  and the  Rules framed  thereunder. This  contention could not  be considered in appeal by special leave as there had been  concurrent  findings  by  the  Chief  Metropolitan Magistrate and  the High Court that there was fish on board. [649F-H; 650A]      The main  argument on  behalf  of  the  appellants  was focussed on  the vital question as to whether the words used in section  13 of  the M.Z.I.  Act "shall  also be liable to confiscation" mandated  that the  foreign vessel used in the commission of  the offence  would be con fiscated as soon as the masters  were convicted  under section 10 or 11 or 12 of the Act,  or it  was the  discretion of  the Court  to order either release  of the  vessel or confiscation of the vessel with the  fish and  the other  equipment, cargo  and fishing gear, considering  the  graveness  of  the  offence.  On  an examination of  the objects  and  Reasons  and  the  various provisions of  the Maritime  Zones of  India (Regulation  of Fishing by  Foreign Vessels) Act, 1981, it was crystal clear

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that the  M.Z.I. Act  had been  enacted with  the object  of preventing illegal  poaching of  fishes by  foreign vessels, including 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  to protect Indian fishermen. The objects  and reasons were to be taken into consideration in  interpreting   the  provisions   of  the   statute.   In interpreting a  statute, the Court has to ascertain the will and policy  of F.  the legislature  as discernible  from the object and  scheme of  the enactment  and the  language used therein. Viewed  in this  context, it  was apparent that the said Act  had 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 8(1)(g) 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 the  permit issued under section 5 of the said Act. [650E-G; 651D; 654F]      Section 13  of the  Act expressly says that besides the conviction and  sentence of  the masters of the vessels, and charterers, the  vessel is  liable to  be  confiscated  with fishes therein.  The appellants’  contention  was  that  the words "shall also be liable to confiscation" used in section 13 of 645 the Act did not mean that it was mandatory to confiscate the vessel as  the masters  of the vessel had been convicted and sentenced to pay penalty under section 12 of the Act, and as various punishments had been provided for different types of offences, it  was left  to the  discretion of  the court  to order confiscation  of the  vessel or to release the vessel. [655A-C]      Section 13  in clear and unimbiguous terms says that on the conviction of the master and the charterer of an offence under section  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 such fish, and stores, cargo shall also be  liable to  confiscation. Viewed in the context, the words "shall also be liable to be 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 were convicted u/s 10 or 11 or 12 of the Act. The Legislative  intent in  making  this  provision  was  to provide deterrent  punishment to  prohibit  fishing  in  the exclusive economic  zone of  India  by  foreign  vessels  in infringement of  the Act and the rules framed thereunder and the conditions  of the  permit or  licence. Viewed  in  this context, section  13 mandates  that  on  conviction  of  the master and the charterer of an offence under section 12, not only penalty of fine would be imposed, 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 the  master of the vessel has been convicted. Section 13 is thus mandatory and it is not open to the court to refrain from making  an order,  confiscating the offending vessel as soon as  the masters  of the  vessel  are  convicted  of  an offence under section 12 and awarded penalty. [660BF]      The  judgments  and  orders  of  the  High  Court  were affirmed. The vessels had been detained in Bombay Port after

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apprehending them  on July 26, 1984 and a huge amount had to be  paid   as  port   charges.  Considering  the  facts  and circumstances of  the case,  the Port  Authorities at Bombay might consider if an application was made by the parties for exemption or  partial exemption  of the  same favourably  in view of the order of confiscation of the trawlers. [660G-H]      State of  Madhya Pradesh  v. Asad  Bharat  Finance  Co. Anr., [1966]  Supp. SCR 473; Indo-China Steam Navigation Co. Ltd. v.  Jasjit Singh,  Addl. Collector  of Customs  & Ors., [1964] 6 SCR 594; 646 Superintendent and  Legal Remembrancer  of Legal  Affairs to the Govt.  Of West  Bengal v. Abani Maity, [1979] 3 SCR 472; K.P. Verghese  v.  The  Income-tax  officer,  Ernakulam  and another, [19821  I SCR  629 and  F.N. Roy  v.  Collector  of Customs, Calcutta,[1957] SCR 1151, referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 642-656 of 1987.      From the Judgment and order dated 24.4.1987 of the High Court of  Bombay in Criminal Appeal Nos. 495, 496, 497, 660, 635, 636 and 637 of 1986.      A.K. Sen,  A.K. Goel,  Ajit Pudussery and M.D. Rijhwani for the Appellants.      M.K. Banerjee,  Solicitor General, A.K. Ganguli, Hemant Sharma, R.P.  Srivastave, C.  Ramesh and  C.V. 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- 43/87.      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 S.D.  Baijal against the acquittal of accused Nos. 3 and  4,  i.e.  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 M.Z.I.  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  S.D. 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 5(4) of M.Z.I. Act and in violation of  Maritime Zones of India Rules, in short M.Z.I. Rules, 1982  as amended.  They were prosecuted by Additional Chief Metropolitan  Magistrate, 8th  Court  Ballard  Estate, Bombay on  the complaint  of Commander  S.D. Baijal filed as authorised officer  under section  19 of the M.Z.I. Act. The

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masters of  the two trawlers, the respondent Nos. 2 and 3 of this appeal  were convicted  and sentenced  to pay a fine of Rs.60,000 and  Rs.40,000 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 M.Z.I. 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  S.D. Baijal filed criminal appeal No.  496 of  1986 against  the order  of acquittal of respondent Nos.  4 and  S i.e.  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 12(b)  of M.Z.I.  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 R.I. for one year to S.I. for 9 months and from R.I. for 9 months to S.I. for 6 months. In criminal appeal No. 496 of 1986 the accused respondent Nos.  3 and  4 i.e. the Managing Director and the Company were  convicted and  sentenced  to  pay  a  fine  of Rs.30,000  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 8(1)(q) and they were convicted under  section 12(a)  instead of  section 12(b) of the M.Z.I. 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  i.e. accused Nos. 1 and 2  for contravening  Rule 8(1)(G)  read with Rule 16 and Section 20(b) of M.Z.I. Act and sentenced them to pay a fine of Rs.60,000  and  Rs.40,000  respectively;  in  default  of payment of  fine to  suffer R.I.  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,  i.e the Charterer Company and its  Managing Director. Crl. A. No. 497 of 1986 filed by Cdr. S.D. Baijal against the order acquitting accused Nos. 3 and 4,  i.e. 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 Rs.30,000 each; in default to suffer S.I.  for 4  months. The order of confiscation of the two trawlers  was also  maintained. Crl. A. No. 637/86 filed

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by the  masters of  the  trawlers  was  dismissed  with  the modification that  the conviction made u/s 12(b) was altered to 12(a)  of M.Z.I.  Act and the sentence of R.I. for 1 year and 9  months respectively  in default  payment of fine were modified as S.I. for h months and S months respectively.      Crl. 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 Rs.30,000 and Rs.40,000  on   accused  Nos.   1  and  2  respectively  for contravening Rule  8(1)(g) and  Rule 16  of the M Z I. Rules and also  of the  offence u/s  5 of  the  Act  and  imposing penalty  u/s  12(b)  of  the  M.Z.I.  Act.  The  Magistrate, however, acquitted  the  accused  Nos.  3  and  4  i.e.  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 u/s 12(b) of M.Z.I. Act was  altered to  one u/s  12(a) of the said Act. Crl. A. No. 495  of 1986  filed on  behalf of  the  prosecution  was allowed and  the accused  Nos. 3  and 4  i.e. the  Charterer Company as well as the Managing Director of the Company were convicted and  sentenced to  pay a  fine of  Rs.30,000.  The vessel as well as the fishing equipment were confiscated and the same  were directed  to vest  in favour  of the  Central Government.      Crl. 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 i.e. the masters of the vessel  to   pay  a   fine  of   Rs.60,000   and   Rs.40,000 respectively; in  default to  undergo R.I.  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.   Crl.  A.   No.  660/86  was  filed  by  the Charterers. Crl. A. No. 635 of 1986 was filed by the masters of the  trawlers. Crl. A. No. 635 of 1986 was dismissed with the modification  that conviction  and sentence  passed  u/s 12(b) of  the M.Z.I. Act was altered to one u/s 12(a) 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 S.l. for 4  months instead  of R.I  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

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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 8(1)(q)  of M.Z,.I. Rules. Condition 2(S) of the permit provides that  any condition could be imposed which would be binding on  the charterers,  masters of  the trawlers.  Rule 8(1)(q) 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 12(a) 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  Rs.5 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  M.Z.I.  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 M.Z.I. 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 Rs.15 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

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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  u/s 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 M.Z.I.  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 i.e. 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 M.Z.I. 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 v.  Azad  Bharat Finance Co. & Anr., [1966] (Supp,) SCR 473; Indo-China Steam Navigation Co.  Ltd. v.  Jasjit Singh,  Addl.  Collector  of Customs &  Ors., [1964]  6 SCR  594 and  Superintendent  and Legal Remembrancer  of Legal  Affairs to  the Govt.  Of West Bengal v.  Abani Maity,  [1979] 3 SCR 472 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 2(a) 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 2(i) "owner" of vessel a includes any association  of persons  whether incorporated or not, by whom the vessel is owned or chartered;

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    Section 2(j)  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  12(a)   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  12(b) 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 M.Z.I. 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

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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 K.P. Varghese v. The  Income-tax officer,  Ernakulam and another, [1982] 1 SCR 629 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  8(1)(q)  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,  i.e. 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. v. Jasjit Singh, Additional Collector of Customs & ors., [1964] 6 SCR  594 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

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Customs officers  found out a large quantity of gold in bars valued at  about Rs.23  lakhs. The  Additional Collector  of Custom found  that the  vessel had  clearly rendered  itself liable to confiscation under section 167(12A) of Sea Customs Act, 1878 because it had infringed the provisions of Section 52A of the said Act. He also confiscated the gold bars under Section 167(8) read with Section 23A of the Foreign Exchange Regulations Act.  He also  directed that  ’Eastern Saga’  be confiscated u/s  167(12A) of  the said  Act and  in lieu  of confiscation he  gave the  owners of the ship an opportunity to pay  a fine  of Rs.25 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 167(12A) 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  M.P. 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  v.  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

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offences u/s  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 2(i) of M.Z.I. 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 8(1)(q) 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 v. Abani Haity, [1979] 3  SCR 472  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 63(1) 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

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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  F.N.  Roy  v.  Collector  of  Customs, Calcutta, [1957] S.C.R 1151 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  u/s 167(8) of the Sea Customs Act. 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  Rs.1,000  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  Sea Customs Act.  The Imports and Exports (Control) Act, 1947 by Section  3(1)   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.

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Under Section  167(8) of  the Sea Customs Act 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 u/s 183 of the Sea Customs Act, 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 Sea Customs Act, 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  M.Z.I.  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 8(1)  (q) inserted  by M.Z.I  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 i.e. 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 u/s 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

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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. S.L.                                      Appeals dismissed. 661