T. S. FERNANDO, J.—Attorney-General v. Sathasivam
1966 Present: T. S. Fernando, J., and Sri Skanda Rajah, J.THE ATTORNEY-GENERAL, Appellant, andT. SATHASIVAM, Respondent
S. C. 623 of 1964—D. C. Jaffna, 2219M.
Customs Ordinance (Cap. 235)—Seizure of goods as forfeited—Action instituted byperson claiming to be owner of the goods—Burden of proof—Sections 44, 129,130, 154, 162.
1,012 wristlet watches, which were found in the possession of one A, weredeclared by the Collector of Customs as forfeit under the Customs Ordinance.•Subsequently the plaintiff claimed to be the owner of the watches and institutedthe present action in compliance with the requirements of section 164 of theCustoms Ordinance.
Held, that, inasmuch as the action was instituted pursuant to section 154 ofthe Customs Ordinance, the burden of proof was on the plaintiff to establishthat he was the owner of the wristlet watches.
A.PPEAL from a judgment of the District Court, Jaffna.
B. T. Premaratne, Crown Counsel, with H. L. de Silva, Crown
Counsel, for the defendant-appellant.
O. F. Jayaratne, with S. Sharvananda, for the plaintiff-respondent.
Cur. adv. vult.
July 12, 1966. T. S. Feenando, J.—
In the early afternoon of the -21st July 1962, two constables of theJaffna Police Station seized a man (referred to hereinafter as Andiapillai)who had arrived by the train reaching Jaffna from Colombo. Carrying acardboard box on his head, Andiapillai walked out of the 3rd class exit ofthe railway station towards a car parked in the railway yard. Before hecould put the box in the car the constables arrested him. The car droveaway. Andiapillai and the box were taken into the railway booking office.He remained mute when questioned as to his name, the contents of the boxand to whom it belonged. He was therefore taken to the Police station.There Andiapillai was given by him as his name and he also furnished anaddress in Jaffna. He refrained, however, from giving the name of theowner of the box or from saying what it contained. The police openedthe box and inside it under a protecting gunny covering was a sealedbiscuit tin. Inside this tin elaborately wrapped were found no less than1,012 wristlet watches, most of which were of popular Swiss manufacture.
T. S. FERNANDO, J.— Attorney-General v. Sathasivam
The Police, suspecting the watches to have been stolen, began someinvestigations on that basis. Andiapillai was suspected of being anillicit immigrant and sent to a detention camp. Before 48 hours couldelapse the Police ceased to suspect these to be stolen property andinclined to the belief that they were the subject of an attempt at illicitexportation. They therefore on the 23rd July 1962 took Andiapillai, thebox and its contents to the Collector of Customs at Jaffna. This officermade certain inquiries and declared the watches forfeit under the CustomsOrdinance (Cap. 235). Even at the stage of the Collector’s inquiriesAndiapillai did not claim the goods, nor indeed did anyone else comeforward to claim them. The Collector imposed a forfeiture of a sum ofRs. 30,000, presumably acting in terms of section 130 read with section 163of the Customs Ordinance.
Andiapillai was enlarged on bail on the 30th July 1962, and proceedingswere instituted shortly thereafter against him in the Magistrate’s Court ofJaffna. On the 31st July 1962, the plaintiff-respondent (referred to here-inafter as the plaintiff) wrote letter PI to the Collector to say that he is theowner of all the wristlet watches taken from the possession of Andiapillaiand claimed their return to him (the plaintiff). The Collector replied byP2 of the 9th August 1962 requesting the plaintiff to call at his office onthe 13th August in connection with the claim made. The plaintiff thenwrote letter P3 on the 12th August stating that he had been advised byhis lawyers not to call at the Collector’s office as the matter was pendingin the Magistrate’s Court. By the same letter the plaintiff called uponthe Collector to “ fix the necessary security under the provisions of theCustoms Ordinance to make my claim in the District Court of Jaffna ”.This was, no doubt, a reference to the security specified in section 154 ofthe Customs Ordinance.
Section 154 of the Customs Ordinance enacts that “ all ships, boats,goods, and other things which shall have been or shall hereafter be seizedas forfeited under this Ordinance, shall be deemed and taken to becondemned, and may be dealt with in the manner directed by law inrespect to ships, boats, goods, and other things seized and condemned forbreach of such Ordinance, unless the person from whom such ships, boats,goods and other things shall have been seized, or the owner of them, or
some person authorized by him, shall give notice in writing etc.
and shall further give security to prosecute such claim”
Section 162 of the same Ordinance enacts that “ all ships and boats,and all goods whatsoever, which shall have been seized and condemnedfor a breach of this Ordinance, shall be disposed of as soon as con-veniently may be after the condemnation thereof, in such manner as theCollector or other proper officer of customs shall direct.”
T. S. FERNANDO, J.— Attorney-General v. Sathasivam
The plaintiff, not having been the person from whom the goods wereseized, but claiming to be the owner thereof, gave security as contem-plated in section 154 and instituted the present action against theAttorney-General as representing the Crown, and prayed for the followingreliefs :—
(а)a declaration that he is entitled to the 1,012 wristlet watches ;
(б)an order on the Collector to restore to him the said watches ;
an order on the defendant to pay a sum of Rs. 105,000 in the event
of the watches having perished or deteriorated or been disposedof;and
a refund of the security deposited.
At the trial the principal issue related to the question whether theplaintiff is the owner of these wristlet watches. The plaintiff who beganhis evidence by stating that lie is a trader whose business is that of buyingand selling -wristlet watches went on to say that he is also a trader in dry-fish and vegetables. He claimed he bought these watches about the year1957 from a number of shops in Colombo. He stated that these watcheshad been taken to Jaffna after their purchase and were brought back toColombo for the first time only on the 18th July- 19G2 in the hope of sellingthem there. As the prices at Colombo were not favourable, he decided tosend them back to Jaffna through Andiapillai who, he said, was a brokerand was travelling by train to Jaffna on the 21st July, although hehimself was due to go to Jaffna next day by lorry with vegetables. Hehad decided to send the watches to Jaffna by train as he feared damage tothem in transit if they were taken by lorry. Andiapillai did not ask himwhat the box contained nor did he tell him that it contained valuables.
The plaintiff reached Jaffna on the afternoon of the 22nd July and learntthat the parcel had not reached the place where it had been arranged thatit would be deposited. He learnt also that Andiapillai was in custody-,but did not go in search of him or to the Police station or to the Customsoffice.
The plaintiff admitted also that he had at no time imported wristlet-watches and that he had no registered place of business either at Jaffnaor in Colombo. He had no account books recording his purchases of thesewatches from time to time. He had at no time been assessed to payincome tax. According to him, he used to keep these watches at hisresidence at Valvettiturai.
It was part of the contention for the Crown that these watches becameforfeit in terms of section 44 of the Customs Ordinance by reason of anattempt to export or take them out of Ceylon. The learned trial judgehas held that there is no proof of such an attempt. In the view we takeof the principal issue in the case, it is hardly necessary to say anything inregard to the finding in the court below as to the attempt to export. In
T. S. FERNANDO, J.— Attorney-General v. Sathasivam
reaching that finding, however, the learned judge has altogether failed toappreciate the force of the evidence relating to the manner in which thesewatches were found packed at the time they were seized. In the wordsof the learned judge himself, the parcel was carefully packed. Thewatches were first wrapped individually in tissue paper and then incellophane paper. Thereafter the packet was taped with insulating tape.Four such packets were then packed together into one packet. Four suchlarger packets were then packed together into a still larger packet whichwould then consist of 16 watches. Sixteen such larger packets eachcontaining 10 watches were again wrapped into one bundle in cellophanepaper. All 1,012 watches were put into larger packets after the fashionabove described. The product was next wrapped in plastic paper andthereafter in brown cartridge paper. The package was then put into anempty biscuit tin which was thereafter sealed with lead. The scaled tinwas then put into a gunny and wrapped and finally placed in a cardboard-box displaying the sign !i Horlick’s Malted Milk The Crown con-tended, I think with much justification, that a strong probability aroseupon the evidence that this elaborate, almost water-proof packing wasnecessary not to prevent damage in transit from Colombo to Jaffna, butas a precaution against damage to the watches by contact with water inthe event of transport across the sea between Ceylon and India.
At the trial, the plaintiff, although he stated he had purchased thesewatches at Colombo and that he had with him the cash memos given bythe sellers in respect of them, did not produce a single such memo inevidence. His counsel did attempt to produce one such memo withoutcalling the seller or someone on the latter’s behalf to prove the genuine-ness of the document. On objection being properly taken on behalf ofthe defendant to this method of production the plaintiff’s counsel withdrewthe document. The learned trial judge, in spite of the non-production ofthese memos which the plaintiff represented he had with him, failed todraw a presumption which he might properly have drawn against theplaintiff by virtue of section 112 of the Evidence Ordinance ; on thecontrary, he referred to these memos as documents listed by the plaintiffin his list of documents and proceeded to treat such listing as a circum-stance in favour of the plaintiff’s claim that these watches belonged tohim. In the result the learned judge came to make a clearly erroneousinference. The failure to produce documents establishing his purchasedetracted greatly from the truthfulness of the plaintiff’s claim. Theother points relied on by the trial judge were that (1) the evidence of theplaintiff was uncontradicted and (2) the plaintiff knew the manner of thepacking, the make and the number of the watches in Andiapillai’spossession. In regard to the first of these two points, irrespective of thetruth or falsity of the claim made by the plaintiff, I find it difficult to seehow the Crown could reasonably have been expected to be ready tocontradict the bare assertion of the plaintiff that he had purchased thesewatches; in regard to the second, the learned judge has lost sight of the
T. S. FERNANDO, J.— Attorney-General u. ScUhaeivam
fact that the plaintiff came forward with any claim only after Andiapillaihad been released on bail, at a time when he could have obtained fromAndiapillai all the information he gave.
The important question at the trial was that of the onus of proof. Theonus of establishing that he was the owner of these 1,012 wristlet watcheswas indisputably on the plaintiff. When he refrained from producing thebest evidence of that ownership which he claimed to have with him, thatshould surely have told heavily against him. The trial judge hasmisdirected himself on the question of where the onus lay by referring tothe case of The Attorney-General v. Lebbe Thamby h It would be mostunfortunate if courts come to apply that decision to all Customs casesirrespective of the nature of the goods concerned. There the Court wasdealing with a case arising out of an alleged unlawful importation of goldbars which the Court there recognised as being goods which could havebeen imported as well as made locally.
As I have said earlier in this judgment, section 44 of the CustomsOrdinance read with the Table of Prohibitions and Restrictions Outwardsdeclares goods which are attempted to be exported contrary to thatsection to be forfeit to the Crown. But when the question arises uponproceedings instituted pursuant to section 154 of the Ordinance, it doesnot call for an answer until such time as the plaintiff shall have establishedhis ownership of the goods concerned. This the plaintiff failed altogetherin doing, and his action should have been dismissed. It is necessary toemphasize that all goods which shall have been seized as forfeit under theCustoms Ordinance are by section 154 “ deemed and taken to becondemned ” unless the claim is successfully prosecuted by the personfrom whom the goods were seized or by the owner or person authorisedby the owner.
It would have been unnecessary to say more in this judgment hadit not been for the reference by the learned trial judge to the case ofTennekoon v. The Principal Collector of Customs 2 upon which he has reliedin holding that there has been a failure by the Collector to comply with arule of natural justice. Here again, with all respect, that authority hasbeen applied without reference to the nature of the proceeding beforethe District Court here concerned. In Tennekoon’s case what was beingresisted was not a forfeiture of goods but an attempt to recover a forfeitureor penalty imposed under section 129 of the Customs Ordinance. Inspite of the phraseology frequently popular with officers of the Customsthat they have “ declared the goods forfeit ”, the forfeiture of goods issomething that attaches the moment the act prohibited by law has been
* (1958) 61 N. L. R. 254.
(1959) 61 N. L. R. 232.
SIVA SUPRAMANIAM, J.—Ranasinghe v. Fernando
committed. In the other case referred to by the learned trial judge, viz.,Omer v. Casperszl, I was myself dealing with a point arising out ofsection 129 of the Customs Ordinance. These two cases therefore were ofno relevance to the issues in the District Court.
For the reasons set out above, we allowed the appeal of the defendant,set aside the judgment and decree of the District Court and directed thedismissal of the plaintiff’s action with costs in both courts.
Sri Skanda Rajah, J.—I agree.
THE ATTORNEY-GENERAL, Appellant, and T. SATHASIVAM, Respondent