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Present: Ennis J. and Shaw J.
THE ATTORNEY-GENERAL v. RODRIGUESZ.
57—D. C. Colombo, 40,842.
Customs Ordinance, No. 17 of 1869, s.104—Concerned in importing
prohibited goods—Meaning of the term " concerned "—Mens rea—Knowledge—Ganja concealedin bagsof bran consigned by a
forwarding agent ■ to his agent in Colombo—Colombo, agent notaware of the presence of ganja in the bags.
The defendant was the manager of the Colombo branch of afirm of bankers and commission and forwarding agents, carryingon business at Tuticorin and Colombo.
Ganja, the importation of which is prohibited by law,was
concealed in some bags of bran consigned to the defendant by theTuticorin branch as commission and forwarding agents for theshippers. The defendant was unaware of any ganja being containedin the bags, and acted in good faith.
Held, that in the circumstances .of this case that defendant wasnot concerned " in importing any prohibited goods within themeaning of the term in section 104 of Ordinance No. 17 of 1869.
rp H Hi facts are set out in the judgment.
Bate a, K.C. (With him Arulahandam), for the defendant, appellant.
Fernando'^ C.C., for. the respondent.
Cut. adv. vult.
June 16, 1916. Ennis J.—
In this case the plaintiff,. the Attorney-General, sued the defend-ant to enforce a forfeiture of Rs. 3,500 claimed under section 14 ofthe Customs Ordinance, No. 17 of 1869, for being concerned inimporting and bringing into the Island 44 lb. 10 oz. of ganja,an article thp importation of which into Ceylon is prohibited by law.The learned District Judge'’held as a fact that the defendant wasaware that the ganja was concealed in some of the bags consignedto him> and gave judgment for the plaintiff without' decidiug theother issues in the case.
Objection was taken to the admission of certain documentsreceived by the defendant from Els brother in India. The learnedJudge admitted them merely to show that they had been received,but not as to their contents. In my opinion the documents wereadmissible, under section 8 of the Evidence Ordinance, as statements,which accompanied and explained the acts of the defendant.
The facts of the case appear rto be as follows :—-On August 22, 1913,402 bags of bran were brought to Colombo from Tuticorin, 141 of
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these bags were marked A. .8 S L, the vilasaiii of one Sanjeva ^luttu-pillai, and 261 were marked A S, the vilasam of the defendant. Ofthe bags marked A S S L, 3 were found to contain 7 parcels of ganja,and 8 bags marked A S were found to contain 16 parcels of ganja.
An inquiry was held by Mr. Burden, the then Landing Surveyor ofthe Customs, on August 25. At that inquiry the defendant Btatedthat he had received'the bills of lading for the bran from his brotherin India; that all the bran was intended for A.S.S.L. Sanjeva Muttu- -pillai; and that he, defendant, was only a transport and commission 'agent for the shippers, and held the bills of lading as security. Heproduced advice notices P 4 to P 10 received frond his brother, P 4gave the vilasam A S S L as the actual importer of 141 bags. P5 toP 10 gave the names of various people as the actual importers of46, 60, 60, 50, 25, and 20 bags, respectively. P 5 to P 10 showedthe initials A S S L written on top of each. . The defendant explainedto Mr. Burden that the 261 bags marked A S were to be distributedto the respective importers by A. S. S. L. Sanjeva Muttupillai. Atthe same inquiry the’ same day Sanjeva Muttupillai made a statementto Mr. Burden, in which he said: “ I expected two consignments of
bran from Virithupatti Nadan .was the shipper from Viri-
thupatti. The bags bearing marks A S S L are for me. The bagsmarked A S are for-sundry people, and Nadan wants me to distributethem for sundry people. ” Three days later Sanjeva made anotherstatement, P 11, to Mr. Burden, in which he said:“ I should have
cleared the 141 bags marked A S SL for myself! and I would probablyhave cleared the bags (261) for A S, as I usually do this for . them.The 261 bags would probably have been. removed to A S boutique. "There is no evidence whatever that the orders for the bran everwent through the defendant. They appear to have been sent directto Nadan in India, and the goods were sent to him through the firm ofM K A to the defendant's Tuticorin agent (i.e., defendant’s brother),who shipped them to the defendant in Colombo. The extracts D 17and D 18 from the books of the Tuticorin agent show that all the402 bags were in respect of transactions with M' K A on the onehand and A 13 S L on the other hand. They also show that the :Tuticorin agent of the defendant made advances and defrayed thecharges for A S S L on the security of the goods. The subsequent ■'conduct of A. S. S. L. Sanjeva Muttupillai in himself taking deliveryof all the bags other than those detained by the Customs authorities, ■bringing an action against the Customs to recover even those, andin paying the defendant for all the 402 bags in full supports thefirst statement made to Mr. Burden by Sanjeva that the 402 bagswere in fact for him. These circumstances also bear out the defend*ant’s contention .that he acted merely as a commission agent inshipping the goods. The fact that advances were made for the full/value of the goods in India does not, in my opinion,' show that the 'defendant was the owner of the goods. There is no evidence to
< )connect the defendant with, the goods other than as a commissionagent, if; was urged that the goods were all to be Taken to the. defendant’s store after being cleared from the Customs, and thelearned Judge has found this to be so in respect of 261 bags on thestrength . of Sanjeva’s second statement to Mr. Burden. In myopinion that, statement does not prove the fact. It is contradictedby Sanjeva in his evidence in Court, and it is denied on oath by thedefendant, who also stated that “ I have never had goods fromTuticorin in my boutique. I have no storeroom.” If thisstatement of the defendant were untrue, it could, it seems to me,easily have been rebutted. In connection with this finding that the261 bags were to go to the defendant’s boutique, and the distribution,if any, was to be made by the defendant, the learned Judge remarks,” even if the bags were to be distributed, the shippers of the goodswould npt have run the risk of the bags being delivered to the wrongparties, 'and would, therefore, have seen that the person chargedwith th6 distribution of the bags was acquainted with their contents,so that 'he would be careful not to make a mistake when deliveringthe bags to the several consignees. ” The evidence on the pointdoes not, in my opinion, prove that the bags would have been takento the., defendant’s boutique before distribution. Mr. Burden inexamination-in-chief said:“ For the 261 bags marked A S 6 vouchers
were produced. I could not by any outside examination of the
bags tell to which bags any particular voucher belonged
I particularly examined half a dozen bags containing ganja, markedA S, A S S L, to find out any distinguishable marks. All the bagsexamined by me in which there was ganja were double bags. Byfeeling one could tell the bogs were double.” If this evidence, hadstood alone, it would have supported the inference made by theJudge. Mr. Ferdinands, the Preventive Officer at the Customs,said: “ All the bags A S, A S S L, had, besides these marks, charactersin Tamil on them. ” The defendant in his letter D 22 of September2, 1913, to the Principal Collector of Customs, stated that the parti-cular bags for the particular consignees were marked by separate-identifying Tamil marks, and he offered to point them out and soascertain the particular consignees of the bags in which ganja hadbeen found. His offer does not appear to have been accepted* andthe bags were not produced in Court. In the circumstances, itmust be found as a fact that the person to whom each bag was to-be given was indicated on the bag. Now, with regard to the 141bags marked A S S L, Sanjeva was the person who ordered them,and who .took delivery, and, there is no suggestion that they wereto be taken to the defendant’s boutique, yet some of these containedganja. The inference is strong, therefore, that Sanjeva, and not thedefendant, was to carry out the distribution of the bags, especiallywhen it is remembered that all the bags came from Nadan, whoreceived direct Sanjeva’s order for (at least) the 141 bags.
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In my opinion the evidence does not bear out the finding of thelearned Judge that the defendant was’ aware that ganja was con-cealed in some of the bags. All the evidence seems to me to pointthe other way, and bears out. the defendant’s evidence on oath thathe did‘not know, and that he acted merely as a commission agentfor the importation of bran.
It is next necessary to consider whether even so he was still“concerned in the importation ’ ’ of ganja within the'meaning ofsection 104 of Ordinance No. 1? of 1869. A long argument as tothe necessity of a mens tea has been addressed to us, and manyconflicting cases cited. I.find that the law on the subject and allthe cases have been admirably summed up in Mayne’s Criminal Lawof India (3rd ed.) 242 et seq. I cannot do better than cite it infull: —
It isanalmost immemorial commonplace of English judges to
state that there can be no conviction on a criminal charge unless theprisoner has a mens res, or guilty mind. The maxim which lays downthe doctrine (actus non fdcit reum nisi mens sit rea. Non est reus nisimens sit rea) has been traced by Sir James Stephen backwards throughLord Cpke to the lawsof ' Henry I,1Its meaning wasdiscussedwith
great elaboration in tworecent cases,*where the judgesdeferredcom-
pletely as to its application. In the last case, Stephen J., with charac-teristic independence, expressed an opinion that the maxim' itself wasnot of much practical value, and was not only likely to mislead,' but wasabsolutely misleading;and in this opinion, Manisty J., who agreed
with him in nothing else, most heartily concurred. When the maximoriginated, criminal lawpractically dealt with, commonlaw offences,
none ofwhich were defined. The law gavethemcertainnames,such
as treason, murder, burglary-, larcency, or rape, and left any person whowas interested in the matter to find out for . himself what these termsmeant. Todo this hehad to resortto the explanations of .text writers
and thedecision of judges. There he foundthatthecrime consisted,
not merelyin doing aparticular act,suchas killing a man, orcarrying
away his purse, but in doing the act with a particular knowledge orpnrpose. The euperaddedment&l statewas generalizedby theterm
■ mens rea, and the assertion that no one was a criminal unless he had themens reareally cameonly to this:thatnothing amounted to.a crime
which did notincludeall itsnecessaryingredients.* _ Of course, the
mental state which had to be established – to'.makeoutacrimevaried
with thecrime itself. The -maximthat,every criminal musthave a
mens rea tv asgenerally true,hut wasalways valueless.The real
question waa whetherin eachcase theaccused had theparticular
mens rea which proved him a criminal.
Underthe Penal Code' such a maxim iswhollyoutofplace.Every
offence is defined, and the definition states, not only what the accusedmast have dime, but the state of his mind with regard to the act whenhe • was doingit. Itmust have beendone knowingly,voluntarily,
12 Steph. Crim. L. 94 n.
Reg. v. Prince, L. R. 2 C. C. 15.1: Reg. v. Tolson, 23 Q. B. D. 168..
2 Steph. Crim. L. 95 per .Stephen Cundy «. Le Coeq, 18 Q. B. D. 20T;
Reg. v. Tolson, 23 Q. B. D. 187.
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fraudulently, dishonestly, or the like. And when it is stated that theact most have been done • with a particular knowledge or intention, thedefinition goes on to state what he most have known, or what he mosthave intended
When a man' is charged with an offence, he frequently says that hedid not intend to commit it, and apparently supposes that the answer,if believed, wouldbecomplete.Doeshemeanthat, indoingthe act
charged against him, he did not intend to commit a crime; or does hemean that he didnotintend to dotheact which thelaw declares to
be a .crime? In the latter case the plea would generally be a good one.In the former case it would always be bad. It would only mean thathe had formed a wrong opinion as to the legal aspect of his conduct,or as to the consequences to -himself that might flow from it.1 Forinstance, a man ischarged withkillingapersonby firinga gunat him.
He says that he did not intend to kill him. If he means that the gunwent off by accident, this is a good – defence, independent of section 60of the Penal Code, as it shows that he never fired the gun. If he meansthat he fired at the man to frighten him, and did not believe the gunwould‘carrysofar, this,if a reasonable belief,wouldnegative the
criminal intention necessary under section 299, but would be no answerto .achargeunder section304a,whichinvolvesnointention to injure.
If he means thathefired athim,mistakinghim foranotherperson
whomhe hadnoright to kill, thisis nodefencewhatever) asit is merely
a descriptionoftheoffence defined bysection301.If hemeans that
he fired athim.in hishouseat night honestly believinghim tobe a
burglar,thiswould be agood defence undersection 7.9, asit showsthat
.he has committed no offence. If he means that he fired at him intendingto wound, but not intending to kill him, this, again, would be no defenceif the natural result of hitting the man would be to kill him (section 299).To saythatheintendedto doa particularact, but did not intendthat
the ordinary consequences should follow from it. is merely to say thathe expected that the laws of nature would be suspended in the particularinstance for his convenience (see post paragraphs 666 and 667).
Where knowledge of a particular fact is an essential element in anoffence,as, forinstance,undersection 497of the PenalCode, itmust
necessarily be proved. So also, where a fraudulent or dishonest intentis an ingredient,there must be aknowledge of the facts whichmake the
aet a fraudulent one. Hence, there can be no theft where the propertyis taken under abona fide thoughmistaken claimof right (postparagraph
605). Probably some such knowledge is always required. in regard toall crimes properly so called, thatis, acts whichcannot be done withoout
a sensethat itis wrong todo • them.Thereis, however, a largeand
growing class of – jtutory offences, where acts previously innocent areforbidden, oracts previously optionalare commanded,simply because
the State considers such legislation . necessary for its own interests, orfor theprotection ofsomeparticular-classof thecommunity. Here
the object of theState is merelyto compel theadoption of aparticular
line ofconduct,andthe penalties thatareimposedareintended,not
for punishment, but for prevention, as the only means which the Statehas at its disposal for the enforcement of its laws. Now, in regard tosuch cases, questions havefrequentlyarisen whether a person is
punishable underthestatutewhen hehasviolateditsprovisionsin.
1 See 2 Steph. Crim. L. 113.
Attorney-General v- .Rodrigueaz
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ignorance of the fact on which- the violation depends. In some cases ofthis sort the judges, influenced by the mens rea doctrine, have soughtto solve the question by inquiring whether the proceeding was reallya criminal proceeding or , not.1 It is now, however, settled that thetrue test is “to look at the object, of each act that is under considerationto see how far knowledge is of the essence of the offence created. ”a Inarriving at this decision, it has been held material to inquire:(1).
Whether the object ofthestatutewould befrustrated, ifproofof such
knowledge was necessary; (2) whether there is anything in the wordingof the particular- section which implies knowledge;(3) whether there is
anything in other sections showing that knowledge is an element in theoffcne- , which is omitted or referred to in the section under discussion.
Hence, upon the first of these grounds, it was held that knowledgewas immaterial, whereastatuteimposed apenalty onanyone – who
shall represent any dramatic ■ production without the consent of theauthor,1 2 3 or where the acts forbidden were " selling to the prejudice ofthe purchaser any article of food or drug which is not of the nature,substance, or quality of the article demanded by such purchaser,”4 * or“ having in his possession and intended for food meat which waa unsoundand unfit for man.”3 8o, where a statute provided that ” It. shall not belawful for any- person to receive two or more lunatics into any house,unless such house shall have been registered under this Act,” a oon-viction was supported, where it appeared that several . persons had beenreceived into an unregistered house, who were in fact lunatics, butwhom the defendant, honestly and on reasonable grounds, believed notto be lunatics.6
As instance of the second ground, it has been held that . where apenalty is imposed upon any one .who ” allows ” or “ permits ” or “ suffers ”a prohibited act to be done, this implies knowledge of the nature ofthe act.7 So it washeld thata personcould – only be convicted of
"unlawfully killing pigeons ” when he knew the facts which made itunlawful to kill them.8 – The words " knowingly and wilfully ” merelymean that a man did the act being quite aware what he was about,and what consequences would follow from it.9 , A statute which providesthat every one who sends dangerous goods by railway shall distinctlymark their quality outside assumes the knowledge which would enablesuch a description tobegiven.Therefore,it was heldthata person
could not be convicted who had merely forwarded goods received fromtheir owner with an untrue description upon them, and who had usedproper precautions to find out their true character.10
As -illustration the third ground,:a statute passed for the protection
of Government stores made criminal by section 1, the concealing, and
1 See Atty.-Gen. *>. Siddons, 1 Cr. & J. 220; Cooper v. Simmons 31
L. J. if. C. 138 per Martin B. 144.
2Per Stephen J., Candy v. Le Cocq.
3Lee v. Simpson, 3 C. B. 871; 8. C. 16 L. J. C. P. 105.
4Betts v. A mislead, 20 Q. B. D. 771.
4 Blaker v. Tillstone, 1 Q. B. D. 345.
6Reg. v. Bishop, 5 Q- B. D. 259.
7Massey v. Morris, (1894) 2 Q. B. 412.
8Taylor v. Newman, 4 B. A S. 89.
9Daniel v. Jones, 2 Cl, PI. Dl, 351.
10Beame «. Garton, 2 E. d E. 66.
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ty section 2, the possession of stores marked with a broad arrow. Thedefendant was charged under section 2 with the possession of eachstares which were found pn his. premises in casks which he had latelyreceived, and which had not been opened. There was no evidence, thathe knew of their contents. It was held that he could not be convicted.Hill J. said: “ The possession in the seoond section is put in precisely thesame category with the concealing, which is a positive act done by theindividual in order to constitute the crime." He also considered thatany other construction wouldreduce the statute to an absurdity.1
On the other hand, where a person was charged under section 18 of theIncensingActwith " selling intoxicatingliquor toa drunken person,"
and it was proved that the person was in fact drank, but did not appearto be so, andwasnot believedtobe drunkby the person who served
him, the conviction was upheld. Stephen J. relied upon the word“ knowingly " in other sections, and its absence in section 13, and also onthe general policy of the Act toputuponthepublican the responsibility
of determining whether his customer'wap sober.2
In _• two later cases, where the circumstances were very similar, adifferent conclusion was arrived at.In one3 thedefendantwas con-victed under section16(2) of theLicensingActfor having'unlawfully
supplied liquor toaconstable while onduty. He hadpresented
himself withouthisarmlet on, andhad beenservedwith liquor Without
inquiry, but under the bono fide belief that, as he had no 'armlet on, hewas notonduty. The conviction was setaside.Inthis case the
sub-section (2) on which he was convicted did not contain the word" knowingly " which was found in the previous sub-section. Day J.said : " Inmyopinion the only effect ofthisis toshiftthe burden of
proof. In cases under sub-section(1)it isforthe prosecution to prove
the knowledge, whileincases undersub-section(2)the defendant has to
prove thathedid not know." Wright- J.said:" There .isa presumption
that mens rea,anevil intention, ora knowledge ofthe wrongfulness of
the act, is an essential ingredientineveryoffence; but that presumption
is liable to be displaced either by the words of the statute creating theoffence, or by the subject-matter withwhichitdeals, and both must be
considered. The principal classes of exceptions may, perhaps, bereduced to three. One is a class ofacts which, in the languageof Lush
j. in Davies v. Harvey,* are not. criminal in any real sense, but are actswhich in the public interest are prohibited under a penalty. Anothercomprehends some and perhaps all public – nuisances. Lastly, theremay hecasesinwhich, althoughtheproceedingiscriminal inform,
it is really only a summary mode of. enforcinga civil right. But
except insuch casesas these,theremustin generalbea guiltyknowledge
on the part ofthedefendant, orofsome onewhomhe has put in his
place to act for him generally, orin theparticular matter, inorderto
dohstitute an offence." So it washeldthat a person couldnotbe
convictedundersection 27 oftheSaleof Foodand DrugsAct,1875
(38 and 39 Viet., c. 63) for givinga falsewarranty as to food,whenhe
did notknowandhad noreason tobelieve thatShe warrantywas
1 Per Stephen J., Cundy v. he. Coeq.* L. R. 9, Q. B. 488.
3 Cundy v. Le Coeq, 18 Q. B. D. 807.s 2 Steph. Crim. L. .94 n.
9 Sherras v. De Rutzen, (1895) 1 Q. B. 918.
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The whole of this applies With equal force to Ceylon. The pre&eatcase takes the form, of a civil action to enforce a penally.
Section 104 of Ordinance No. 17 of 1869 is as follows:—
Every person who shall be concerned in importing or bringing' intothe Islandany prohibited goods*orany goodstheimportationof whiah
is restricted, contrary to such restriction or prohibition, and whetherthe. same be unshippedor not,and every personwhoshall,nftahip or
assist, or be otherwise concerned in the unshipping of any goods whichare prohibited,or ofany – goods which are restricted and importaj
contrary tosuch restriction, orofany goodsliable to dutytlib duties
for which have not been paid or secured, or who shall knowingly harbour,keep, or conceal, or shall knowingly permit,orsuffer, orcause, or
procure tobe harboured, kept,orconcealed,anyBuch .goods, pi any
goods which .have been illegally removed without payment, of dutyfrom any warehouse orplaceofsecurity in which ' theyhavebeen depo-
sited, or into whose hands or possession any such goods shall knowinglycome, or who shall assist or be concerned in the illegal removal of anygoods from any warehouse or place of security in which they shall- havebeen deposited as aforesaid, or who shall be in any way knowingly con-cerned in conveying, , removing, depositing, concealing, or in any «mmy»rdealing with any goodsliabletoduties of customs,withintentto defraud .
the revenue of such duties pr any part thereof, or who shall be in atoyway knowinglyconcerned in any fraudulent evasionorattemptat
evasion' of such duties or anypart thereof, shall ineachand every of the
foregoing cases forfeit either treble the value of the ' goods, or ' thepenalty of onehundredpounds, at the election oftheCollectorof
It is to be observed that the word “ knowingly ” found in thelatter part of the section before “ concerned ” does not appear infile first line. It is necessary then to consider whether the defend-ant was V concerned ” in the importation of ganja. The section isa preventive measure, and no question of a civil right arises. TheEnglish cases are, therefore, useful as a guide to the interpretationto be placed on the section. I am inclined to the opinion held byDay J. and .Stephen J. that the absence of the word “ knowingly ’’throws the burden on thj defendant of showing that he was notconcerned in the importation of ganja. If the contention of iherespondent, that everybody who had anything to do with bringingthe ganja, be . correct, the owner of -the ship which brought thegoods, the master, the crew, and the pergons who landed the cargowould all be “concerned'’ with the'' importation, as > well as thetransport agents of the purchasers.* It must be home in mind,however, that these persons in this case are 'primd facie concerned inthe importatjon of bran, not ganja, and it seems to me that somedegree of knowledge that they were importing ganja must beimputable to them before they become liable to a penalty. InTodd v. Robinson 1 it was held that an officer of a Local Board, whois a shareholder in a company having a contract with the board, is,
i (1884) 14 Q. B. D. 789.
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60 long as the contract exists, “ interested in a bargain or contract ”with the board within the meaning of the Public Health Act, 1875,section 193, notwithstanding that the interest was merely nominal.The Judges in that case drew a distinction between “ interested ”and “ concerned,” from which it appears that a person may beinterested . in a matter without being concerned in it. In TheAttorney-General v. Robinson,l on information under the 8 and 9Viet., c. 87, s. 46 (1), against the defendant as having beenconcerned in the illegal unshipping of tobacco at Yarmouth,the defendant was found guilty because he well knew the object ofthe voyage. On a motion for a rule for a new trial for misdirec-tion the rule was refused. The case was dealt with on proof ofknowledge as to the illegal object of the voyage.
In Morris v. Howden * it was held that a person who undertook toprocure a passage for another without profit or commission was not** concerned in the. sale or letting of a passage ” within the meaningof section 341 of the Merchant Shipping Act, 1894.
A person who merely forwards goods, or receives them as acommission agent, has no right to open the packages to see Whetherthey contain what they are said by the owner to contain, and hastherefore no means in this way of knowing whether the owner hasconcealed illicit goods in the packages. If the contents of thepackages are not declared to him, it would be his duty to inquire.Failing an inquiry, he would properly be held to be concerned in theimportation of prohibited goods should the packages subsequentlybe found to contain such goods. This seems to be the ratio decidendiin Davit Silva v. Juanis Appu.3 Should, however, the owner declarethe goods to be bran, and prohibited articles are subsequently foundconcealed therein, the transporter might well plead a mistake offact through no fault or omission of his- own, and bring himselfwithin the exception laid down in section 72 of the Penal Code, Inother words, he could not be said to be concerned in the importationof prohibited articles, if he had no knowledge of the prohibitedarticle and no means of knowledge. The reported cases seem to meto show that the owner of goods is deemed to have the means ofknowledge by examination or analysis as to whether or not he isdealing with prohibited goods (e.g., Queen v. Woodrow 4), while acarrier’s only means of knowledge is by inquiry and the declarationof the owner. In Davit Silva v. Juanis Appu 3 Lawrie J. held,” the possession of articles which the Legislature has prohibited theremoval of is an offence, unless the accused proves a degree ofignorance- sufficient to excuse him.” In my opinion this appliesequally to the recovery of a penalty under section 104 of the CustomsOrdinance, and in this case the defendant’is degree of igftioranceexcuses him, as he had no knowledge or means of knowledge that the
1 so L. J. Ex. 188.38 3. C. C. 139.^'
* (1897) 1 Q. B. 878.*(1887) L. J. Mag. Cases, 122.
ganja was concealed in the bran, and the importation was not dueto any positive act or omission of his own.
In Ceylon the question is whether the defendant had a sufficientexcuse to bring him within the exception specified in section 72 ofthe Penal Code, end the English cases serve only as a guide to theinterpretation of the Customs Ordinance, and as to whether thedefendant could be said, in the words of section 72 of the PenalCode, to have in “ good faith " believed he was justified by law.
I would set aside the decree, and dismiss the plantiff’s action,with costs,
The Attorney-General sued the appellant for a penalty undersection 104 of the Customs Ordinance, 1869, alleging that he was,on or about August 22, 1918, concerned in importing and bringinginto the Island 44 lb. 10 oz. of ganja, an article prohibited by lawto be imported into Ceylon.
The defendant carries on business with his two brothers asbankers and commission and forwarding agents at Tuticorin andColombo, the defendant being manager of the Colombo branch ofthe business.
On August 22, 1913, the ganja was discovered by the Customsofficers concealed in two consignments of 141 and 261 bags of Toorbran, consigned to the defendant from the Tuticorin branch, ontwo bills of lading dated August 20, 1913, by the B. I. SteamNavigation Company ss. “ Palitana.”
The consignment of 141 bags was marked "A S S E, ” which isthe vilasam of one Sanjeva Muttupillai of Wolfendhal, and that of261 bags was marked “ A S, ” which is the vilasam of the. defendant'sfirm. The ganja was distributed amongst various bags, some beingin the 141 bags consignment and some in the 261.
Ihe defendant by his answer denied that he was concerned inimporting or bringing into the Island of ganja in question, andalleged that the bran was ordered from traders in India by SanjevaMuttupillai and certain others, and was forwarded to the defendantby the Tuticorin branch as commission and forwarding agent forthe shippers, and that he was wholly unaware of any ganja beingcontained in the bags, and acted in entire good faith in connectiontherewith, and in the ordinary course of business as commissionand forwarding agent, and without any intention to contravenethe law.
The case on behalf of the plaintiff was that the defendant in factknew that the ganja was being consigned in the bags, but, even if bedid not, that he was, nevertheless, liable to the penalty provided forby section 104, he being concerned in importing the ganja.
The District Judge has found as a fact that the defendant knewthat the bags contained ganja, which finding rendered it unnecessary
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tor Viiin to decide the other point, and he accordingly gave judgmentfor the plantiff for the penalty claimed.
The case has been argued very fully and ably before us, and I havecome to a very decided opinion that‘the finding of fact of the learnedJudge is wrong and cannot be upheld.
The defendant’s case was that his firm in India, and he himselfin Colombo, acted as forwarding agentB only; that the bran was notordered by or through them; and that, in fact, the defendant didnot know it was coming until he received the bills of lading and theadvice notes. He stated, and his statement could easily have beenrefuted if it had been untrue, that he had been. carrying on thisbusiness of forwarding agent for thirty years, and had never, exceptin the case of livestock, taken delivery of goods himself, but ithad been his invariable custom to endorse the bills of lading overto the real importer on payment of charges and any advances, madeby his firm, and that in the present case the bran had been orderedby or through Muttupillai, that it was intended that the bills oflading should be endorsed to him when the charges of the defendant'sfirm and the advances made by the Tuticorin branch had been paid,and that Muttupillai should collect the bags from the Customs anddeliver them to the various traders on whose behalf they had beenordered.
The explanation given why the 141 consignment was marked"A 8 S L" (Muttupillai’s vilasam), and the 261 consignment wasmarked “AS” (defendant’s vilasam), was that the first was forMuttupillai himself, and the second was to be collected by him forthe various traders named in the advice notes, when the variouscharges and advances made in respect of their particular goods hadbeen paid to the defendant. The various advice notes sent by thedefendant’s branch in Tuticorin before the trouble arose bear outthis explanation, and the advice notes respecting the 261 bagconsignment are headed “ASS L.”
The defendant’s evidence is supported "by that of Muttupillai,who, however, seeks to absolve himself from liability by saying thatone Nadan was the real importer, and that he had really orderedthe bran -for him; it is also supported by the books of the Tuticorinbranch of the defendant’s firm, which appear to have been regularlykept, and the entries’relating to this transaction to have been madebefore the trouble arose, which show that the 402 bags were consignedto them for shipment to Colombo by the firm of Nana Koona Anaof Kayatar “ on A S S L’s accdunt.”
The defendant appears to have made a similar statement to thatwhich he made in his evidence when he was examined by tlTeLanding Surveyor on August 25, and he also did j3o in his letter tothe Collector of Customs on September 2, and Muttupillai, whenexamined by the Landing Surveyor on August 25, also stated that hehad ordered both consignments. There is also some support of the
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defendant's story in the fact that Muttupiilai did, in fact, eventuallyclear from the Customs both consignments of bran, or rather suchof the bags as the Customs would part with, and paid the chargesand advances on all the bran to the defendant.
The District Judge came to the conclusion that the 261 bagconsignment, marked A S, was ordered by the defendant, and wasto be received by him, principally in consequence of a secondstatement made by Muttupiilai to the Landing Surveyor on August26, in which he appears to have denied that he had anything to dowith the 261 bag consignment, and said that if he had collected ithe would have delivered it to the defendant
• At the time Muttupiilai made this statement he was obviously indanger of getting into trouble himself about the ganja, and was, notunnaturally, trying to limit his liability with regard to 1he 261 bags, •which, not being marked with his vilasam, it was more difficult toconnect him with than with the 141 bags, and the learned Judgeseems to have overlooked the fact that he had made a differentstatement on the previous day. I cannot accept the statement madeon the 26th against the statement made by him on the previousday, and repeated in his evidence, and confirmed by the Tuticorinbooks and the advice notes. The Judge thinks that the headingA S S L in the advice notes may have been added for the purposesof the defence. Of course, it may have been, but there is no evidenceof it, and so far as the appearance of the documents go, the headingA S S L appear to be in the same handwriting and made at thesame time as the rest of the documents.
The only other thing that seems to have influenced the Judge incoming to the conclusion he did was that if the bags were to bedistributed, the shippers of the ganja would not have run the risk ofthe bags being delivered to the wrong parties, and would thereforehave seen that the person charged with the distribution of thebags was acquainted with the contents, so that he would be carefulnot to make a mistake when delivering the bags to the severalconsignees. The Judge seems to have overlooked the evidence thatthe bags of the 261 consignment were marked with the Tamilvilasams of the several importers. It is true that the LandingSurveyor stated in his evidence that he could not by an outsideexamination of the bags tell to which vouchers any particular bagbelonged, although he examined half a dozen of them; it appears,however, from all the other evidence, including that of Mr. Fernando,the Customs officer who examined the bags, that all the bags werealso marked with Tamil characters, and this was also pointed outby the defendant in his letter to the Collector of Customs ofSeptember 2, when the bags were still in the custody of theCustoms.
I feel no hesitation in saying that the only proper finding on theevidence must be that the whole of the bran was ordered by or
through Mut-tupillai, and that the defendant acted as shippingagent only, and had no knowledge that the bags of bran containedganja.
The question still remains whether the defendant is liable toforfeit the penalty mentioned in section 104 of the Customs Ordi-nance, even although he may have been ignorant that ganja wasconoealed in' the bags, and an elaborate argument was addressedto ub a3 to the cases in which mens tea is a necessary ingredient inconstituting an offence. I do not think it is necessary to go intothe somewhat irreconcilable English cases and dicta on the subject,or into the question how far some of these oases apply at all to thisIsland, in view of the express provisions contained in Chapter IV.of the Penal Code, because it does not appear to .me that the doctrineof the necessity of mens tea in constituting a criminal offence hasany application to a penalty recoverable by civil action as in thepresent case. The doctrine that it is generally necessary that aperson should have a guilty mind before he can be convicted of anoffence is peculiarly one of the criminal law, and I know of no casewhere it has been suggested in civil proceedings for a statutorypenalty that the existence or absence of mens tea on the part of thedefendant affects the matter one way or the other. It would seemto me that if the Legislature enacts that a person shall be liableto be sued for a sum of money should he do a particular thing, he isliable to suffer judgment for that amount, whatsoever may have beenhis state of mind when doing the act.
The question in the present case is, What is the meaning of theword “ concerned ” used in section 104, and can the defendant, onthe facts, be said to have been “ concerned in importing or bringinginto the Island ’ ’ the ganja found in the bags? The contention onbehalf of the respondent is in effect that any one having to do withthe importation or bringing into the Island, not only of the prohibitedarticle, but of the packages in which it is contained, are liable toforfeit the penalty, even if they do not know that the article is there,and the use of the word “ knowingly. " in the later part of the samesection dealing with other breaches of the Customs law shows that. knowledge is immaterial in the case of importing prohibited articles.
The result- of such a construction would be somewhat startling,not only the shipping agent, but the captain of the ship, the labourerswho handled the cargo, the lighterage company, and even the pilotof the ship, would be liable to forfeit either treble the value of thegoods or Bs. 1,000 at the election of the Collector of Customs. Ican imagine the Legislature making it an offence punishable by afine for a person, however innocently, to have anything to do withthe bringing into the Island something which public policy demandsshould be absolutely prohibited, for, in the case of a summons beforea Magistrate, it would be in his discretion to inflict a nominalpunishment or to discharge the accused if he thought he had done
Attorney-General v. •Jtodrigueee
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nothing blameworthy; but in the case of a suit for a statutorypenalty there is no discretion in the Court, and the full amount canbe recovered at the discretion of the plaintiff from any person madeliable by the statute.
It seems to me that such a construction should not be put uponthe section under consideration unless the words clearly demand it,which, in my opinion, they do not.
Very little assistance can be obtained from the dictionary meaning,or the derivation of the word “ concerned *' and the English casesin which the word has come under consideration do not give muchhelp in its construction as used in the Ordinance we are now dealingwith. In Morris v. How den,1 Barnacle v. Clark,2 and Todd v-Robinson,3 the meaning of the word has come under review, but inno case can I find that it has been suggested that a person can be“ concerned ” in something that he is ignorant of and derives no-benefit from. The word “ knowingly " applied to “ concerned ” inthe later part of section 104 is in relation to dealing with goods afterimportation into the Island, and in respect of which goods evasionof the Customs laws was committed on importation. The effect ofthe use of the words throws the necessity of the proof of knowledgeon the plaintiff in those cases, but it does not appear to me to in anyway necessarily imply that a person is “ concerned ” in an importa-tion of which he has no knowledge, and from which he acquires nobenefit.
The fact that the bills of lading in the present case were made outto the defendant no doubt established a primd facie case against himthat he was “ concerned ’' in the importation of the goods containedin the packages, but he has, in my opinion, sufficiently establishedthat he had no knowledge that ganja was contained in them, andhad no interest in the prohibited article. Under these circumstances,he cannot, I think, be said to be concerned in the importation of theganja, and I would consequently allow the appeal with costs.
i(1897). 1 Q. B. 378..2 (1900) 1 Q. B. 279.8 U Q. B. D. 789.
THE ATTORNEY – GENERAL v. RODRIGUESZ