A fishing vessel, the Yemen-flagged Al Thriaya-3, was fishing on the high seas when it was abducted by its Indian crew and sailed towards the territorial waters of India. The crew made a distress call to the Indian Coast Guard at Kochi, stating that they were being subjected to mistreatment and being compelled to work without wages. The Coast Guard brought the vessel into Indian territorial waters. The vessel, along with the goods in it, was confiscated by order of the Commissioner of Customs (Preventive), Cochin, under s 111 of the Customs Act 1962 (the Act). The owner of the vessel challenged the confiscation order and sought the release of the vessel and goods, without having to pay the redemption fine or the duty demanded by Customs for the alleged importation of the vessel and goods into India.

Held: The owner's petition is granted. The respondents are directed to hand over custody of the vessel and the goods to the petitioner forthwith, without imposing any charges, and in an 'as is where is condition'. The petitioner shall file an undertaking that neither the vessel nor the goods shall be used or consumed in any part of India, and shall be taken out of the country as soon as the vessel is seaworthy.

A distress signal, or a distress call, is an accepted and recognised mode of calling for help while on the high seas. Distress calls are communicated through radio signals, or through visually observable items or illuminations, or by making sounds audible from a distance. Several regulations govern the field relating to the safety of life at sea, including UNCLOS. Article 98 of UNCLOS prescribes it as a duty of every State to render assistance in the event of any danger to a vessel or its crew, and to proceed to rescue the person in distress:

1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers:

(a) to render assistance to any person found at sea in danger of being lost;

(b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him;

(c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call.

2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements cooperate with neighbouring States for this purpose.

Similarly, SOLAS places in reg V/7 an obligation upon every State to ensure that necessary arrangements are made for distress communication and co-ordination in their area of responsibility, and for the rescue of persons in distress at sea around its coasts. These arrangements include establishing, operating, and maintaining such search and rescue facilities as are practicable and necessary. A distress signal from a vessel generally indicates that either the vessel or its crew is in imminent danger. When a coastal State receives a distress signal, there is an obligation under the international maritime rules to help such a vessel in distress. The responsibility to respond to a distress call from a vessel is that of the coastal station that received the distress alert. Thus the Indian Coast Guard acted in accord with the international treaties and rules by responding to the distress call that arose from the vessel, and brought it into the territorial waters of India and to the Kochi Port.

The Customs investigation subsequently revealed that the distress call was a ploy adopted by the crew of the vessel, who had, in reality, abducted the vessel and brought it near India and then made the false distress call. Where a fishing vessel was brought into the country, without the knowledge of its owner, on the basis of acts that may be tantamount to a crime committed by the crew, can this be said to be an act of 'import' as contemplated under the Act? No doubt a vessel will satisfy the definition of 'goods' under s 2(22) of the Act. However, there is a distinction between a vessel imported into India as 'goods', and a vessel brought into India as 'a conveyance carrying goods or people'. It is only the former that may be 'goods' for the purpose of imposing customs duty: see Commissioner of Customs, Mumbai v Aban Loyd Chiles Offshore Ltd (2017) 3 SCC 211. Further, if the word 'import', as defined in s 2(23) of the Act, is given a literal meaning in the context of the facts of this case, it would lead to an absurdity. Every order of confiscation must of necessity be based upon the circumstances arising in each case. The vessel and the goods in it have not been used or put to any use in India, for any purpose. They have not merged with the mass of the goods in the country. Therefore, in this case, there cannot be any import into India as contemplated under the Act.