HOWARD C.J.—Amirtharetnam v. Collector of Customs,
Present: Howard C.J.AMIRTHARETNAM, Appellant, and COLLECTOR OF CUSTOMS,Respondent.
207—M. C. Jaffna, A 166/46.
Confiscation of property—Cold suspected of being smuggled from India—Foundin deceased person's stomach—Power of Court to order confiscation—Criminal Procedure Code, s. 413—Customs Ordinance (Cap. 185), s. 154.Thirty-two balls of gold which were suspected of having been smuggledfrom India were found in the intestines of a deceased person as the resultof a post mortem examination. On a report from the Police the Magis-trate, after inquiry, ordered the gold to be delivered to the Customsauthorities.
Held, that the Magistrate had no jurisdiction to make the order undersection 413 (1) of the Criminal Procedure Code as no offence had beencommitted which formed the subject-matter of inquiry or trial in Courtwithin the meaning of the section.
Held, further, that section 164 of the Customs Ordinance had noapplication as there' had been no seizure or condemnation of the goldfor a breach of the Customs Ordinance.
^ PPEAL from an order of the Magistrate of Jaffna.
W. Thambiali, for the appellant in the appeal and the petitioneein the application.
J.Q. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vuU.
February 12, 1946. Howard C.J.—
The petitioner appeals from an order of the Jaffna Magistrate directingthat thirty-two balls of gold found as the result of a post mortemexamination in the intestines of the petitioner’s deceased husband shouldbe handed over to the Collector of Customs for disposal. The factsleading up to the holding of this post-mortem examination are as follows:—On May 4, 1945, Ponnampalam Mylvaganam, the husband of thepetitioner, arrived in Ceylon from India. He was suspected of smugglinggold by the Customs authorities and was detained until the morning ofthe 5th when he was released. On May 8, 1945, he died. At 11 a.m. onMay 9, 1945, the Coroner, S. F. X. Annasamypillai, held an inquest.After recording the evidence of the petitioner and the brother of thedeceased, the Coroner received in evidence three medical certificates.In view of the evidence the Coroner decided that no post mortemexamination was necessary. As, however, the Police pressed for onethe matter was referred by the Coroner to the Magistrate who directedthat a post mortem should be held. The post mortem was held on May10, 1945, by Dr. S. Ponniah, the Judicial Medical Officer. He found thatthe cause of death was gangrene of the small intestines caused by theswallowing of 32 balls of gold the weight of which had dragged over thesmall intestines forming a kink in it which blocked the arteries.Dr. Ponniah apparently held the post mortem at 9 a.m. and brought the
HOWARD C. J.—Amirthareinam v. Collector nj Custom .
gold to the Magistrate at 11 a.m. whilst the latter was sitting on theBench. Thereafter the Magistrate recorded the evidence of the Coroner,Dr. Ponniah and a man called Karthigesu. On May 14, 1945, theMagistrate received a letter from the petitioner claiming the gold as thelegitimate widow of Ponnampalam Mylvaganam and the naturalguardian of his children. The Magistrate fixed the matter for enquiryon June 2, 1945. In view of an allegation in the Police Report that thisgold was probably smuggled, he directed that notice of the inquiryshould be served on the Police and the Customs authorities. On June 2,1945, the Sub-Collector of Customs filed a motion that the gold bedelivered to the Customs for disposal under section 154 of the CustomsOrdinance. The Police supported this motion. On June 24, 1945, theinquiry was held and on August 14, 1945, the Magistrate directed thatthe gold be sent for disposal to the Customs authorities.
On behalf of the petitioner Mr. Tambiah has contended that theMagistrate had no power to make the order directing the handing over ofthe gold to the Customs authorities for disposal. In this connectionhe invited my attention to section 413 (1) of the Criminal Procedure Codewhich is worded as follows :—
“ When an inquiry or trial in any criminal Court is concluded theCourt may make such order as it thinks fit for the disposal of anydooument or other property produced before it regarding which anyoffence appears to have been committed or which has been used for thecommission of any offence.”
Mr. Tambiah maintains that the Magistrate had no power to make theorder of confiscation inasmuch as “ no trial or inquiry ” had been heldinto “ any offence ” with regard to the gold. No trial, moreover, hadbeen instituted before the Magistrate as no compliance had been madewith section 148 of the code. The Magistrate appears to have thoughtthat the offence of smuggling gold had been committed. The offenderin such a case would have been Ponnampalam Mylyaganam. But suchan offence was not the subject matter of the inquiry that the Magistrateheld. The perpetrator of such an offence was dead and hence he couldnot be tried. Nor were proceedings instituted under section 148 of theCode. The provisions of section 413 were considered by Bertram C.J.in Silva v. Hamid1 and in my opinion his decision in that case is veryrelevant to the facts of the present case. At page 416 the learned ChiefJustice stated that the words “ any offence ” in section 413 must meanany offence which was either directly or indirectly the subject of theinquiry or trial. The trial of the offence of smuggling gold was notproperly instituted before the Magistrate. The gold was brought to himby the Judicial Medical Officer and he, thereupon, instituted an inquiryto determine its ownership. The case of Martin Silva v. KanapalhypiUai 2is another authority for the proposition that no order under section 413can be made unless a Magistrate has before him a proper complaint asrequired by section 148 of the Criminal Procedure Code that an offencehas been committed. In that case Abrahams C.J. also held that acriminal Court is not to be employed as a tribunal to investigate rival
1 20 N. L. R. 414.
8 14 C. L. W. 41.
94HOWARD C.J.—Rodrigo v. Baetianaz (Inspector of Police.)
claims to property. This seems to be exactly what happened in this ease,the rival claimants being the petitioner and the Collector of Customs.
Crown Counsel has argued that the Magistrate was holding an inquiryunder Beet ion 362 (4) of the Code and therefore the subsequent ordermade under section 413 was in order. I do not think there is any subst-ance in this argument inasmuch as there is nothing to show that theMagistrate was in fact holding an inquiry as contemplated by section362 (4).
The Collector of Customs apparently claimed the gold under section 154of the Customs Ordinance. On a perusal of this section it is obviousthat as there has been no seizure and condemnation of the gold for abreach of the Ordinance, the section can have no application.
For the reasons I have given the order of the Magistrate is set asideand I direct that the gold be handed over to the petitioner.
Order set aside.
AMIRTHARETNAM , Appellant, and COLLECTOR OF CUSTOMS , Respondent