Attorney-General v. Kumarasinghe
COURT OF APPEAL.
C.A. NO. 643/93
C. NEGOMBO CASE NO. 12/90JANUARY 13, 1995.
Criminal Procedure – Indictment – Importing gold without a permit from CentralBank S. 21(1) 21(2) 51(1) 51(4) of Exchange Control Act – Passenger in TransitLounge – Importation – Ingredients of the offence – Imports and Exports ControlAct, No. 1 of 1969, S. 22.
The accused, a Sri Lankan passport holder was indicted for having imported intoSri Lanka, 40 pieces of Gold valued at Rs. 2 million without a valid permit issuedby the Central Bank. After arriving in Sri Lanka on an Air Lanka flight he had beenat the Transit Lounge with the pieces of gold to proceed to Male. The High Courtof Negombo acquitted the accused.
Section 22(1) of the Exchange Control Act imposes a prohibition on theimportation of Gold into Sri Lanka without a permit from the Central Bank.
Importation is given an extended meaning in Section 21(2).
“It would be absurd to say that where the gold is left in the aircraft without itbeing removed it is importation and to hold that it is not importation, when goldis physically brought out of the aircraft into the transit lounge*
Importation is not defined in the Exchange Control Act but recourse could behad to Section 22 of the Imports and Exports Control Act 1 of 1969.
The moment the accused-respondent landed in Sri Lanka soil with gold, theact of importation was complete.
Case referred to:
Regina v. Smith (Donald) 1973 Queens Bench Division 924.
APPLICATION for revision of the order of the High Court of the Western Province.
C. R. De Silva, D.S.G. with Kapila Waidyaratna, S.C. for Attorney-General.
H. L. De Silva, PC. with R. I. Obeysekera, PC. and A. W. Yusooff for saccused-respondent.
Cur. adv. vult.
Sri Lanka Law Reports
 2 Sri L.R.
March 24, 1995.
The accused-respondent was indicted by the Attorney-Generalwith having imported into Sri Lanka 40 pieces of gold valued atRupees 2 million 88 thousand on 13 July, 1989 without a permitissued by the Central Bank of Sri Lanka in contravention of Section21(1) read with Section 21(2) of the Exchange Control Act, andthereby committed an offence punishable under Section 51(1) readwith Section 51(4)(b) of the said Act.
After trial the Learned High Court Judge by his judgment dated 16August, 1990 acquitted the accused-respondent of the charge in theindictment and directed that his personal belongings taken intocustody during the raid be returned to him. Further the Learned HighCourt Judge directed that the 40 pieces of gold taken into custodyfrom the accused-respondent be returned to him in the presence ofhis Attorney-at-Law. Aggrieved by the said order of the Learned HighCourt Judge the Attorney-General has filed this Application inrevision canvassing the correctness of the order.
According to the proceedings had in the High Court, the factswere as follows. The accused-respondent was a Sri Lankan passportholder who had returned from Singapore on Air Lanka flightNo. UL455 on 13 July 1989 and had been at the transit lounge at theKatunayake International Airport. He had possessed a two-way ticket,Colombo-Singapore and Singapore-Colombo and a one-way ticket,Colombo-Male. He has had with him a travelling bag and a briefcase. Customs Officers who were on duty, had been suspicious ashe was waiting in the transit lounge. On questioning him he haddisclosed that he was a Sri Lankan national who had returned fromSingapore on Air Lanka flight UL455 and was awaiting a flight toMale. At about 7.20 p.m. flight ML101 bound for Male had arrived atthe Airport. On the said flight being announced the accused-respondent had got out of the transit lounge and had been on hisway to board the plane when he had been stopped by the CustomsOfficers and his bags examined. Inside the brief case they haddetected 40 pieces of gold, and on being questioned the accused-respondent had stated that he was carrying it to Male.
Attorney-General v. Kumarasinghe (Gunasekera, J.)
Mr. C. R. de Silva, Deputy Solicitor-General who appeared for thepetitioner submitted that the finding of the Learned High Court Judgethat the accused-respondent had not contravened the provisions ofthe Exchange Control Act when he was detected with 40 pieces ofgold without the requisite permit from the Central Bank, whilst he wasa transit passenger awaiting a flight to Male intending to take thegold to Male, was erroneous. It was contended by Learned DeputySolicitor-General that Section 21(1) of the Exchange Control Actimposes a prohibition on the importation of gold into Sri Lankawithout the permission of the Central Bank. Section 21(1) states that“No person shall except with the permission of the Bank import anygold" . . . Section 21(2) states that “The bringing or sending into anyport or other place in Sri Lanka of any gold intended to be taken outof Sri Lanka without being removed from the vessel or Aircraft inwhich that gold is being carried shall, for the purpose of this Sectionbe deemed to be the importation of that gold."
It was submitted by Mr. H. L. de Silva, P.C. who appeared for theaccused-respondent that since Section 21 of the Exchange ControlAct creates a criminal offence when the extended meaning given bySection 21(2) in sought to be applied to gold alleged to be imoortedinto Sri Lanka that all the essential ingredients or constituent elementsrequired by section 21(2) must be established before a person canbe held to have contravened section 21(1) of the Act. In other words,when seeking to apply the extended interpretation to gold broughtinto Sri Lanka it is not open to the court to dispense with any of thequalifying constituent elements contained in Section 21(2). If all thequalifying elements are not present in the situation to which thedeeming provision is sought to be applied the court cannot lawfullyhold that there was an importation as contemplated in section 21(2).
The question for determination in this case is as to whether theaccused-respondent had imported gold into Sri Lanka, when he wasfound in possession of 40 pieces of gold in the transit lounge,awaiting a flight to Male at the Katunayake International Airport. Theordinary meaning of ‘import’ is to bring from abroad. The term‘importation’ is not defined in the Exchange Control Act. However anexamination of Section 21 reveals that an extended meaning is givento the word ‘importation’ in Section 21(2). Thus the legislature
Sri Lanka Law Reports
 2 Sri LR.
appears to have intended to deal with a situation where a transitpassenger leaves a consignment of gold in an aircraft without off-loading it from the aircraft and he is without a permit from the CentralBank to be dealt with for the importation of that gold.
On the admitted facts of this case Section 21(2) has no applicationbecause the gold had not been left in the aircraft. The matter fordetermination in the instant case is whether the accused-respondentwho had removed the gold from the aircraft and brought it to thetransit lounge can be said to have imported the gold. In determiningthis question it is useful to consider what importation means. Sincethe word importation has not been defined in the Exchange ControlAct recourse could be had to its definition which is provided in theImports and Exports Control Act. Section 22 of the Imports andExports Control Act 1 of 1969 states that "Import” with itsgrammatical variations and cognate expressions when used inrelation to any goods means the importing or bringing into Sri Lanka,or causing to be brought into Sri Lanka whether by sea or by air ofsuch goods. Going by this definition we are of the view that themoment the accused-respondent landed on Sri Lankan soil with thebrief case containing gold that the act of importation was complete.And that if he failed to produce the requisite permit for possession ofthat gold that he has contravened the provisions of Section 21(1).
Learned Counsel for the accused-respondent strongly urged thatthe facts of the instant case attracted Section 21(2) of the ExchangeControl Act and contended that all the essential ingredients orconstituent elements required by Section 21(2) must be establishedbefore the accused-respondent can be held to have contravenedSection 21(1) of the Act. In other words when seeking to apply theextended interpretation to gold brought into Sri Lanka that it is not opento court to dispense with any of the qualifying constituent elementscontained in Section 21(2). We are unable to agree with this contentionof Learned Counsel having regard to the facts of this case. To do so inour view would be to do violence to the intention of the legislature. Inour view it would be absurd to say that where the gold is left in theaircraft without it being removed it is importation and to hold that it isnot importation when gold is physically brought out of the aircraft intothe transit lounge of the airport as has happened in this case.
Attorney-General v. Kumarasinghe (Gunasekera, J.)
In the case of Regina v. Smith (Donald) 01 "Packets containingcannabis addressed to a person in Bermuda were put on board anaircraft in Kenya which was bound for Heathrow airport in the UnitedKingdom. At Heathrow the packets were unloaded and withoutleaving the customs area were put on board a second aircraft boundfor Bermuda. The cannabis was discovered when the packets arrivedin Bermuda. The Defendant was charged with being knowinglyconcerned in the fraudulent evasion of the prohibition against theimportation of cannabis imposed by the Dangerous Drugs Act 1965,contrary to Section 304(b) of the Customs and Excise Act 1952, andwith being knowingly concerned in the fraudulent evasion of theprohibition against the exportation of cannabis imposed by the Act of1965 contrary to Section 56(2) of the Act of 1952. There wasevidence that the parcel was sent from Kenya by the defendantacting with others, and that he knew that the most likely route toBermuda was via London. He submitted that the packets of cannabishad been neither imported into nor exported from the UnitedKingdom since all that had occurred at Heathrow had been atranshipment within the customs area from one aircraft to another forthe purpose of onward transmission to Bermuda, and that since hehad not intended to import the packets into or export them from theUnited Kingdom he could not be guilty of being knowingly concernedin the offences alleged against him. The submissions were rejected,and the Defendant was convicted."
On a consideration of the evidence led in the case and thesubmissions of Learned Counsel we are of the view that the finding ofthe Learned Trial Judge that the accused-respondent had notcontravened the provisions of the Exchange Control Act when he wasfound in possession of 40 pieces of gold without a permit from theCentral Bank in the transit lounge of the Katunayake InternationalAirport, awaiting a flight to Male, as a transit passenger, is erroneous.Therefore we set aside the order of the Learned High Court Judgedated 16.8.93 acquitting the accused-respondent and also the orderdirecting that the 40 pieces of gold be returned to him.
YAPA, J. -1 agree.
Order of the High Court set aside.
ATTORNEY-GENRAL V. KUMARASINGHE