The master or person in charge of a merchant vessel, on board of which any deserter from the Army, Navy or Air Force of the Government of India is concealed, shall, though ignorant of such concealment, be liable to a penalty not exceeding three thousand rupees, if he might have known of such concealment but for some neglect of his duty as such master or person in charge, or but for some want of discipline on board of the vessel.
Simplified Explanation
Section 165 of the Bharatiya Nyaya Sanhita (BNS) 2023 addresses the situation where a deserter from the Army, Navy, or Air Force of the Government of India is concealed on board a merchant vessel due to the negligence of the vessel’s master or person in charge.
Key Elements of Section 165
- Merchant Vessel:
- This section applies to merchant vessels, which are civilian ships engaged in trade, as opposed to military ships or naval vessels. These vessels are not part of the defense forces but are used for transportation and commerce.
- Concealment of Deserter:
- If a deserter (a member of the armed forces who has left their post without permission) is concealed (hidden or sheltered) on board a merchant vessel, and the master or person in charge of the vessel could have discovered the deserter but failed to do so due to negligence, this section holds the master accountable.
- Ignorance of Concealment:
- The law specifically states that the master or person in charge of the vessel may be held liable even if they were ignorant of the deserter’s presence. However, this ignorance must be due to negligence or a lack of discipline on the vessel. In other words, if the master failed to perform their duties in a way that would have normally revealed the deserter, they can be penalized.
- Negligence or Lack of Discipline:
- The master or person in charge of the vessel can be held responsible if the deserter’s concealment is due to the master’s neglect of duty or a failure of discipline on the vessel. For example, if the crew members are not properly checked or if the ship’s operations are not conducted with enough care, and the deserter is allowed to hide unnoticed, the master could be penalized.
Penalties and Liabilities
- Monetary Penalty:
- The penalty for the master or person in charge of the vessel is a fine not exceeding three thousand rupees. This fine applies even if the master was unaware of the deserter’s concealment, provided that the concealment happened due to negligence or a lack of discipline.
- Nature of the Penalty:
- This provision emphasizes a monetary fine rather than imprisonment. The focus is on holding the master financially accountable for failing to exercise due diligence in preventing the concealment of a deserter.
Purpose and Rationale
- Ensuring Diligence in Military Discipline:
- The law places responsibility on the master of the merchant vessel to ensure that any deserter from the armed forces is not hidden aboard the ship. It reflects the need for vigilance and discipline even in civilian sectors that may inadvertently become involved in military-related issues, such as concealing deserters.
- Preventing Desertion:
- Desertion is a serious offense within the military, and allowing a deserter to escape undetected through international borders could undermine national security and military discipline. This section helps ensure that deserters do not find refuge on civilian vessels.
- Promoting Accountability:
- By imposing penalties on the vessel’s master or person in charge for negligence, the law reinforces the importance of responsibility and discipline on merchant vessels. The owner or operator of the vessel could be motivated to ensure proper checks and controls to avoid facilitating a deserter’s escape.
Illustrations
- Example 1:
- A soldier deserts the army and hides on a merchant vessel that is about to depart from an Indian port. The master of the vessel is negligent in performing checks and fails to notice the deserter hiding. The master can be fined up to three thousand rupees for not preventing the concealment, even though he did not intentionally assist the deserter.
- Example 2:
- A sailor deserts the navy and boards a merchant vessel without the knowledge of the master. However, the crew does not perform proper checks as required, allowing the deserter to remain concealed. If it is found that the negligence of the master or crew contributed to the concealment, the master can be penalized under this section.
- Example 3:
- A merchant ship transports goods between India and another country. The vessel’s master is aware of a possible deserter on board but fails to investigate the matter properly or enforce discipline among the crew. As a result, the deserter escapes undetected, and the master is fined for negligence.
Defenses
- Lack of Negligence:
- The master of the vessel may argue that they exercised proper diligence in checking for desertion and that they were unaware of the deserter’s presence due to factors beyond their control (e.g., the deserter was hiding in a secret compartment or in an area not easily accessible).
- No Concealment:
- If the defense can prove that there was no concealment of the deserter or that the deserter was not on board the vessel, then the master could argue that they are not liable for any penalty under this section.
- External Factors:
- The master may argue that any concealment was due to external factors such as actions taken by the crew or passengers, over which the master had limited control.
Comparison with Indian Penal Code (IPC), 1860
- IPC and Harbouring: While the Indian Penal Code (IPC) has provisions for harbouring criminals (e.g., Section 212), Section 165 of the Bharatiya Nyaya Sanhita focuses specifically on the concealment of deserters in a military context aboard civilian vessels, which is not directly addressed by the IPC. The BNS emphasizes military discipline and security, particularly with regard to desertion.
Impact on Military and Governance
- Military Discipline and Security: This provision helps maintain strict controls over desertion by ensuring that desertion does not go unnoticed when military personnel attempt to leave the country undetected. It places accountability on the civilian sector (merchant vessels) to support national security efforts.
- Vigilance in Maritime Trade: By holding vessel masters accountable for ensuring no military deserters are on board, this provision encourages more careful oversight and better discipline in maritime operations, which may otherwise inadvertently facilitate illegal activities such as desertion.
Conclusion
Section 165 of the Bharatiya Nyaya Sanhita (BNS) 2023 penalizes the master or person in charge of a merchant vessel if they fail to detect and prevent the concealment of a deserter from the military due to negligence or lack of discipline. The master can be fined up to three thousand rupees even if they were unaware of the deserter, provided that their negligence contributed to the concealment. This section plays a role in safeguarding military discipline and ensuring that deserters do not find refuge on civilian vessels.
