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Criminal Revision No. 343 of 1952 decided on 22nd May 1953.
S. 167‑Term 'exterritorialy'‑Meaning of‑Foreign private vessels‑Whether immune to the laws of the country they happen to be in Private individuals residing abroad‑Whether subject to the jurisdiction of their own country‑"Importation"‑What the term connotes‑To constitute importation, whether landing of goods an essential act.
All individuals and all property within the territory of a State or under its dominion and sway, and foreign individuals and property fall at once under the territorial supremacy of a State when they cross its frontier‑The term 'exterritoriality' at most, means nothing more than that a person or thing has some immunity from the local jurisdiction; it does not help to determine the only important question how far this immunity extends.
Private merchant vessel of a foreign country and its crew and contents are not exempt from the jurisdiction of the country they happen to be in.
By reason of its personal supremacy a State exercises jurisdiction over its subjects wherever they may be. If they are in a foreign country, they become also subject to the jurisdiction of the Courts of that country for the time being ; but they continue to be the subject to the jurisdiction of the Courts of their own country.
Importation consists in bringing an article into a country from the outside. To constitute importation by river it is not necessary that goods should be put on land.
S. M. Murshed and S. M. Raza for Petitioners.
Salahuddin Ahmed, Deputy Legal Remembrancer for the Crown.
‑This Rule was obtained by‑ the petitioner; on the District Magistrate of Khulna to show cause why the case started against them on the Police charge‑sheer should not be quashed. The first petitioner is the Serang (Master), the second is ‑the Sukhany, and the remaining four, are the Lashkars (crews) of the vessel S.L. " At it Thakur" which belongs to the East Bengal River Steam Service Limited, a Company which is registered in India with its head office at 87, Sovabazar Street, Calcutta.
On the 8th of April 1951, the S.L. " At‑it Thakur came to the Khulna port, towing three flats, namely, (1) Mohan, (2) Lohajang and (3) Janki Nath, carrying salt, a part of which was entered in the ship's books and in the manifest as booked from Jagannath Ghat in West Bengal to Dhubri in Assam. The remaining salt, amounting to 1,626 bags, was not accounted for in any of the papers. The vessel, however, got a port clearance from the Customs authority at Khulna within a few hours of its arrival, and, when after leaving the port it was proceeding on its way, it was intercepted by the Police who had previous information that a huge quantity of salt was being smuggled into Pakistan. The Police searched the vessel, seized the commodities and finally sent up the petitioners along with others in a charge‑sheet for trial under section 167 of the Sea Customs Act (VIII of 1878) and under section 418 of the Pakistan Penal Code. This is the case we are asked to quash in this Rule.
Under section 19 of the Sea Customs Act the Central Government has power to prohibit the bringing by sea or land, of goods of any specified description into the Pro vinces or the Capital of the Federation by a Notification in the official gazette. Clause (8) of section 167 makes it an offence to import or attempt to import goods in violation of such prohibition. The offence is punishable with imprison ment not exceeding seven years or with fine or both.
On the 2nd of June 1950, the Government of Pakistan prohibited the importation of both rock and sea salt by Notification No. 335/260/3 under subsection (1) of section 3 of the Imports and Exports (Control) Act (XXXIX of 1950). Subsection (3) of this section lays down that:
"All goods to which any order under subsection (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 Act, 1878, and all the provisions of that Act shall have effect accordingly . . . . . "
The rest of the subsection is not relevant to the present discussion. It is obvious that any importation of salt in violation of the aforesaid Notification of 'the 2nd of June 1950, is an offence under clause (8) of section 167 of the Sea Customs Act.
When I heard Mr. Murshed, the learned Counsel for the petitioners on the previous occasion, he argued that the local Courts have no jurisdiction to try the petitioners. His argument was that the vessel must be regarded as " Floating India'', and, as such, not subject to the laws and Courts of Pakistan. He still maintains that the vessel must be regarded as "Floating India" and as such, not answerable to local law for the act complained of. There is obviously some confusion as to the legal status of this vessel in the waters of Pakistan, and I think this matter should be clarified. To concede that this vessel is not subject to the jurisdiction of the Courts of Pakistan would be to lay down that a private merchant vessel of foreign registry is absolutely free to do anything in the national waters of Pakistan and can with impunity transgress its laws, injure its trade jeopardise its revenue. Such a state of things would be thoroughly inconsistent with the Sovereignty of this State. I am not aware that such a claim can be or has been ever made by any State. Sove reignty means independence, external and internal, and supremacy, territorial and personal. These are the recognized and therefore protected qualities of States as International Persons. The protection granted to these qualities by the Law of Nations finds its expression in the right of every State to demand that other States themselves abstain, and prevent their agents and subjects from com mitting any act which constitutes a violation of its inde pendence or its territorial, or personal supremacy". (International Law, 7th Edition), Volume 1, section 124, page 255‑Oppenheim)." According to the rule ", the learned author states at page 256, quid quid est in territorio est etiam de territorio, all individuals and all property within the territory of a State are under its dominion and sway, and foreign individuals and property fall at once under the territorial supremacy of a State when they cross its frontier ". Mr. Murshed based his argument on what is sometimes called the doctrine of exterritoriality. The term "exterritoriality ", says Briefly (The Law of Nations; page 173), " is commonly used to describe the status of a person or thing physically present on a State's territory but wholly or partly withdrawn from the State's jurisdiction by a rule of international law, but for many reasons it is an objectionable term. It introduces a fiction for the person or thing is in fact within, and not outside, the territory; it implies that jurisdiction and territory always coincide, whereas they do so only generally ; and it is mis leading because we are tempted to forget that it is only a metaphor, and to deduce untrue legal consequences from it as though it were a literal truth. At most it means nothing more than that a person or thing has some immunity from the local jurisdiction; it does not help us to determine the only important question, namely, how far this immunity extends ".
In (an American case) Cunard Steamship Company, Ltd., Etal v. Mellon, Secretary of the Treasury, Etal (Fenwick Cases on International Law 316) Mr. Justice Van Devanter, repelling the claim of exterri toriality, observed:-
" In support of their contention the defendants refer to the statement sometimes made that a merchant ship is a part of the territory of the country whose flag she flies. But this, as has been aptly observed is a figure of speech, a metaphor. Scharrenberg v. Dollar S. S. Co., (245 U. S. 122 (27)), in er: Ross (140 U. S. 453 (464)), the Jurisdiction which it is intended to describe arises out of the nationality of the ship, as established by her domicile, registry, and use of the flag; and partakes more of the characteristics of personal than of territorial Sovereignty. See the Hamilton (297 U. S. 393 (903)) American Banana Co. v. United Fruit Co. (213 U. S. 397 (355)) I Oppenheim International Law 3rd ed. SS. 123‑125, 128. It is chiefly applicable to ships on the high seas where there is no territorial Sovereignty and as respects ships in foreign territorial waters it has little application beyond what is affirmatively or tacitly permitted by the local Sovereign . . . ". In Chung Chi Cheung v. The King (1939 A C 160), a British subject had been convicted in the Hong Kong Court for murder committed on board a Chinese public ship within the territorial waters of Hong Kong. He had tried to commit suicide and had been taken to hospital in. Hong Kong. On appeal it was argued on his behalf that the Court had no jurisdiction, and if the true view of the character of a public ship were, that it is ex‑territorial, really to be regarded as foreign territory, the argument would have been sound. The Privy Council, however, took the view that a public ship merely has certain immunities from the local jurisdiction, and that, except to the extent that it is excluded by these immunities, the local law applies to her and to everything happening on board. There could, therefore, be no legal objection to the immunities to which the ship was entitled being waived, and on the facts it was held that China had waived them and the Hong Kong Court had jurisdiction to try the case. Repelling the claim of exterritoriality, Lord Atkin said:
" On the question of jurisdiction two theories have found favour with persons professing a knowledge of the principles of international law. One is that a public ship of a nation for all purposes either is, or is to be treated by other nations as, part of the territory of the nation to which she belongs. By this conception will re guided the domestic law of any country in whose territorial waters the ship finds herself. There will therefore be no juris diction in fact in any Court where jurisdiction depends upon the act in question, of the party to the proceedings, being done or found or resident in the local territory. The other theory is that a public ship in foreign waters is not, and is not treated as, territory of her nation. The domestic Courts, in accordance with principles of interna tional law will accord to the ship and its crew and its contents certain immunities, some of which are well‑settled, though others are in dispute. In this view, the immunities do not depend upon an objective exterritoriality, but on implication of the domestic law. They are conditional and can in any case be waived by the nation to which the public ship belongs.
" Their Lordships entertain no doubt that the latter is the correct conclusion. It more accurately and logically represents the agreements of nations which constitute international law, and alone is consistent with the para mount necessity, expressed in general terms, for each nation to protect itself from internal disorder by trying and punishing offenders within its boundaries ".
The principle underlying the immunities was expressed by Chief Justice Marshal in his very illuminating judgment in The Schooner Exchange v. M. Faddon and others (7 Cranch 116 (Fenwick Cases on International Law 326)) " The jurisdiction of Courts is a branch of that which is possessed by the nation as an independent Sovereign power.
" The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it; deriving validity from an external source, would imply a diminution of its own Sovereignty to the extent of the restriction, and an investment of that Sovereignty to the same extent in that power which could impose such restrictions.
" All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced upon to the consent of the nation itself. They can flow from no other legitimate source.
" This consent may be either expressed or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood not less obligatory.
The world being composed of distinct Sovereignties, possessing of equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by, an interchange of those good offices which humanity dictates and its wants require, all Sovereigns, have consented to a relaxation in practice, in cases under certain peculiar circumstances of that absolute and complete jurisdiction within their respective territories which Sovereignty confers.
" This perfect equality and absolute independence of Sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every Sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation:-
The term " exterritoriality " is thoroughly inconsistent with the true nature of the immunities and is misleading. They arise out of a background of national Governments, who recognise the Sovereignty of each other, and are necessary to facilitate dealings between them as independent Sovereign States. They rest on mutual consent and not on any right of exterritoriality, and their enjoyment is afforded not by the sacrifice of Sovereignty but by voluntary waiver of jurisdiction in consideration of a similar waiver on the part of the other State.
Having discussed the principle underlying the privileges, which one Sovereign State enjoys in the territory of another, I have next to consider whether a private merchant vessel and its crew and contents are within the ambit of this principle. My conclusion is that they are not. In The Parliament Belge (L R 5 P H 197), after reviewing many cases, including The Schooner Exchange v. Faddon and others, the Court said:
" The principle to be deduced from all these cases is that, as a consequence of the absolute independence of every Sovereign authority, and of the international comity which induces every Sovereign State to respect the independence and dignity of every other Sovereign State, each and every one declines to exercise by, means of its Courts, any of its territorial jurisdiction over the person of any Sovereign or Ambassador of any other State or over the public property of any State which is destined to public use, or over the property of any Ambassador, though such Sovereign, Ambassador, or property be within its territory, and, therefore, but for the common agreement, subject to its jurisdiction ".
Smith (The Law and Custom of the Sea, 2nd Ed., p. 26) has condensed it into a formula:
" The true basis of the immunities lies in the principle that one Sovereign State will not assert any coercive jurisdiction over the public agencies of another which are within its territory by mutual consent ".
The words "public agencies" make it clear that the doctrine of immunity has no application to private individuals or their properties. Their position has been stated with utmost clarity in the Schooner Exchange.
"The preceding reasoning, has maintained the propositions that all exemptions from territorial jurisdiction must be derived from the consent of the Sovereign of the territory; that this consent may be implied or expressed; and that when implied, its extent must be regulated by the nature of the case, and the views under which the parties requiring and conceding it must be supposed to act.
"When private individuals of one nation spread themselves through another as business or caprice may direct, ming ling indiscriminately with the inhabitants of that other or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the Government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign Sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are bound, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption ".
I may state in this connection that even in the sphere of public agencies, where the principle applies, there is a growing opinion shared by most of the countries and the business world that the principle of immunity should not extend to public vessels engaged in commercial undertakings. [Smith: The Law and Custom of the Sea, p. 32 ; Brierly ; The Law of Nations, p 179 ; Compania Naviera Vascongado v. S. S. Cristina (1938 A C 485 (521))]. The reason is that the doctrine of immunity was developed at a time when States normally confined their activities to political and military matters. In recent years national trading has become so common that their exemption from the jurisdiction of the national Courts sometimes works gross injustice.
It is abundantly clear that a private merchant vessel of a foreign country and its crew and contents are not exempt from the jurisdiction of the Courts of this country.
It should be observed that the petitioners have mis conceived their position. They are subjects of Pakistan. By reason of its personal supremacy this State exercise jurisdiction over its subjects wherever they may be. If they are in a foreign country, they become also subject to the jurisdiction of the Courts of that country for the time being ; but they continue to be subject to the jurisdiction of their own country. There is nothing wrong or unjust in this, for the nationals of a State, wherever they go, enjoy the protection of their own Government, and it is quite right that they should continue correspond ingly to be subject to its jurisdiction. The act complained of against the petitioners, is alleged to have been done by them in Pakistan. The fact that they committed it in or by using a merchant vessel of a foreign country, or as servants of, or in alliance with, a foreign Company, does not entitle them to any exemption from the jurisdiction of the Courts.
It is next contended that the facts alleged do not constitute any offence. The argument is that as the goods were not landed, there was no importation. It is said that to constitute importation there must be landing. I find no authority for this view and none indeed placed before me. In Cunard Steamship Co., Ltd., Etal v. Mellon, Secre tary of the Treasury, Etal it was observed that importation is to be taken in its ordinary sense. " Importation ", says the learned Judge, "in a like sense, consists in bringing an article into a country from the outside. If there be an actual bringing in it is importation regardless of the mode in which it is effected. Entry through a Custom house is not of the essence of the act ".
Section 2 (c) of the Import and Export (Control) Act of 1950 lays down that "import" and "export" mean respectively bringing into, and taking out of, the Provinces or the Capital of the Federation, or any acceding State by sea, land or air. What is essential is the bringing into the country. A commodity is brought into the country, if it is brought into its land or into its rivers, for the rivers are as much part of this State as its lands are. To constitute importation by river, it is not necessary that goods should be put on land.
In the ship's book and the manifest her destination is shown as Jagannath Ghat to Narayanganj‑Dhubri. Jagannath Ghat and Dhubri are both in India. Mr. Murshed has laid considerable stress on this fact and has contended that the vessel was proceeding from India to India, and that, as such, there was no importation of any goods into this country. But the real question is not what was the desti nation of the vessel; the real question is what was the destination of the 1,626 bags of salt which were not accounted for in the ship's papers, nor mentioned in the manifest. This salt was not meant for anybody's personal consumption. The quantity itself makes that clear.
There can be hardly any doubt that it was. meant for sale. The question is : sale to whom and where The obvious answer is : to an undisclosed accomplice or any customer, wherever available, either in this country, or outside. True if the manifest is believed, the vessel, was going to Dhubri ; but that is no proof that the salt, which is the subject‑matter, of this case, was also going there. The vessel had another destination also, namely, Narayanganj, and the significant fact is that, while the purpose of going to Dhubri is disclosed in this ship's papers, the purpose of going to Narayanganj is not. Two things are concealed: One is the purpose of going to Narayanganj and the other is the destination of the salt. Are these concealments pur poseless Is there no reason to think that they are inter related I do not see how it can be said on the materials now before us that there has been no importation. The salt was not in innocent passage. The concealment of their destination makes this evident. They were meant for sale either to undisclosed accomplices or to customers, wherever available, in this country or outside. Now if goods are brought into this country for sale, should customers be available, it constitutes their importation into this country, and it makes no difference that they are intended to be carried beyond the country, in ‑case no customer is avail able here. That such is not the case is not clear to me, and I do not think that the exercise of inherent power to quash the proceeding is warranted on the materials now on record.
The Rule must be discharged.
.‑I agree that there is no substance in this Rule. The Rule must be and is discharged.
K. B. A./M. S. Rule discharged.
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