COURT OF APPEAL.DE SILVA, J.
CA 457/95.NOVEMBER 1J. 1999.DECEMBER 17. 1999.JANUARY 10. 2000.
Writ of Certiorari – Quash determination of Director General of Customsholding that 2’"' Respondent is an initiating officer – Customs Ordinance,Ss.S, 153.
The question for consideration is whether the determination made by theDirector General of Customs (lsl Respondent) to the effect that the2Md Respondent is also an Initialing Officer in terms of the Circular(distribution of rewards) is unreasonable.
It was contended that according to S. 153 and the scheme of the Circularthe determination of the Director General of Customs as to who theInitiating Officer is solely an exercise of his discretion, and the saiddetermination was an exercise of absolute discretion which is notjusticiable and is in the nature of a subjective exercise which is not easilyinterfered with by Courts.
In Modern Administrative Law the concept of absolute discretion isunacceptable. Arbitrary powerand unfettered discretion are what courtsrefuse to countenance.
As the law developed certiorari and prohibition have become generalremedies which may be gran ted in respect of any exercise of discretionarypower.
Initiating Officer is a person who commences action resultingin seizure on information or observation personal to him. The 2ndRespondent does not come under this category, more so his applicationto the Director – General of Customs that he be treated as an InitiatingOfficer was made nearly one and half years after the detection.
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APPLICATION for a Writ of Certiorari.
Cases referred to :
R vs Secretary of Stale for Trade & Industry Exp.Lonsho PK (1989)
1 WLR 525
Faleel vs Susil Moonesinghe and others [ 1994] 2 Sri.L.R. 301
U.S. vs Wundarlich (1951) 342 US 98
Roberts vs Hopwood (1925) AC 578 at 6 13
Breen vs Amalgamated Engineering Union (1971) 2 QB at 190
E.D. Wikremanayake with Ms. Anandi Cooray for Petitioner.
Y.J.W. Wyetilake D.S.G. for l31 Respondent.
S. Sivarasa. P.C., with E.R.S.R. Coomarasivamy for 2nd Respondent.
Cur. adv. unit.
March 01. 2000.
DE SILVA, J.The petitioner, a customs officer, filed this applicationseeking inter alia, a writ of certiorari to quash thedetennination/orders dated 02. 02. 1996 and 1 7. 06. 1995 ofthe Director General of Customs who held that one C.P.M.K.Fernando another customs officer, the second respondent inthis case, along with the petitioner to be initiating officers fora detection for which the petitioner claims to be the onlyinitiating officer.
The original petition filed by the petitioner on the 28"'June1995 had been subsequently amended on the 4th of July 1995.When the application was first considered by this Court byjudgment dated 05. 06. 1996 the Court held that at therelevant time circular P1 was not operative and the matter wasgoverned by the document marked “Y" which is anotherscheme of distribution, and dismissed the application. There-after the petitioner sought special leave to the Supreme Courtagainst the said order of this Court. The Supreme Court by itsjudgment dated 09. 09. 1998 held that –
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(]) The scheme embodied in circular marked “Y” is notapplicable to the petitioner,
(2) The circular “PI” is in fact valid, operative andenforceable and applicable to the petitioner andreferred the case back to this Court to consider themerits of the case.
It is to be noted that the learned D.S.G. who appeared forthe Director General of Customs conceded in the SupremeCourt that the applicable circular was PI.
It is common ground that the award has been made interms of circular marked PI. This circular contains theguidelines to be followed in the distribution of rewards. Thequestion for consideration by this Court is whether thedeteimination made by the Director General of Customs, the1st respondent to the effect that the 2m1 respondent is also aninitiating officer in terms of the said circular is unreasonable.
The petitioner’s claim is based on the scheme that he waswhat is known as the "Initiating Officer”. The term initiatingofficer is defined in paragraph 4 of PI as follows. "Initiatingofficer would be a person who commences an action resultingin seizure on information or observation personal to him".
In order to decide who the initiating officer is in thisinstance the facts and circumstances of this case have to beconsidered in detail.
The petitioner, the 2™' respondent, Fernando, and severalother customs officers were on duty at the Colombo Airport,Katunayake on the 4Ul June 1993. The petitioner observed apassenger, attached to the Egyptian Embassy, coming to theGreen Channel. On being questioned the passenger statedthat he had nothing to declare and the petitioner permittedhim to proceed through the Green Channel. A few minuteslater the petitioner observed that the same person again was
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in the customs examination hall and was pushing a trolleywith another person. As the petitioner grew suspicious overthe return of this passenger the petitioner stopped him andstarted questioning him. Then two other officers viz 0. B.Jayanetthi and K. G. Jayawardena joined the petitioner.Having seen this the 2nd respondent, Kithsiri Fernando toocame to the spot. When the passenger tried to open a bagFernando noticed a VCR which needed a duty free clearancecertificate.
Thereafter the petitioner having interrogated thepassenger requested him to bring back the bags which hadalready been cleared. The passenger refused to do so. Thepetitioner then instructed Jayanetthi. Jayawardena and oneJayantha Ponnamperuma to bring the bags cleared by thepassenger earlier. The petitioner then proceeded towards thecustoms office with the passenger followed by Kithsiii Femando.The passenger having noticed that the above mentioned threeofficers were proceeding towards the lobby to bring back thecleared baggage had run through the Green Channel. KithsiriFernando had given chase and intercepted the passenger inthe V.I.P. car park and ordered the security at the gate to stopthe car which the passenger had signalled to leave. Fernandocame back to the office with the passenger and the othercustoms officers brought back the luggage cleared earlier fromthe car. Thereafter the team of custom officers opened the bagsand found 153 slabs of gold valued at Rs. 10,614,700/= and59 pieces of gold jewellery valued at Rs. 396,000/=.
On or about 17. 06. 1993 an inquiry in terms of section 8of the Customs Ordinance was held and the said 1 53 slabs ofgold and 39 pieces of gold jewellery were declared as forfeit interms of the Customs Ordinance.
The petitioner claimed that it was he who initiatedaction which resulted in this seizure due to his personalobservations.
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On or about 18. 06. 1993 one D.M.T.B. Dissanayake acustoms officer made an application to the 1st respondent.Director General requesting that he be treated as the initiatingofficer. After obtaining necessary reports the Director Generalof Customs determined that the said Dissanayake was notthe initiating officer. Two further claims were made by thesame Dissanayake which too were disallowed by the DirectorGeneral of Customs.
It is to be noted that at the inquiry held on 17. 06. 1993the statement of all the customs officers who participated inthis detection were read over to them and asked whether theyhad anything to add. All the officers including Fernandoadmitted that their statements had been properly recorded(vide P.21).
On or about 08. 11. 1993 the petitioner made anapplication to the Director General of Customs to proceed toU. S. A. for studies and he was paid an advance from thereward due to him as the initiating officer. According to section2.3.1 of the circular advance payment may be made only inexceptional cases and should not be paid as a right or as aroutine matter. Section 2.3.2. states that “before making anyadvance payment, the director in charge of the division shouldsatisfy himself that the claim of the officer is correct and thatthere will not be any disputes regarding same later". Thepetitioner proceeded to U. S. A. and returned on 20. 01. 1995.
Meanwhile on 1 5. 08. 94 Fernando had made an appeal tothe Director General of Customs stating that he should beconsidered as the initiating officer on the basis,
(a) that at all times material to detention of the D.P.L.car and apprehension of the passenger in V.I.P. carpark he acted on his own without any direction fromany other person and without any information froma third party.
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(b)that the seizure of the goods was due to his action of
the detection of the D.P.L. car at the V.I.P. car park.
On 02. 02. 1995 the Director General of Customs madeorder accepting Fernando as one of the initiating officers. Thepetitioner appealed to the Director General of Customs byletter dated 28. 02. 1995. The Director General of Customsturned down his appeal on 17. 06. 1995 and affirmed hisprevious order dated 02. 02. 1995. The present writapplication to this Court is to quash the above decisions.
The learned President's Counsel for the secondrespondent submitted that according to the object of section153 of the Customs Ordinance and the scheme of the circularP1 the determination of the Director General of Customs as towho the initiating officer is solely an exercise of discretion ofthe Director General of Customs. He further submitted thatthe said determination was an exercise of absolute discretionwhich is not justiciable and is in the nature of a subjectiveexercise which is not easily interfered with by Courts. Theposition taken up by the Counsel for the 2ml respondent wasthat the Director General of Customs acted after due inquiryand not arbitrarily or capriciously and therefore there is noabuse of power. Mr. Sivarasa PC relied on the followingauthorities. R. Vs. Secretary of State for Trade and Industryexp. Lonsho PKJ“. Wade on Administrative Law 7"' Edition(1994) page 399, "Administrative Adjudications" by BernardSchwartsz, American Administrative Law 2"'1 Edition page 190and Constitution and Administration Law of Ceylon by JosephA.L. Cooray (1973) page 324, FaleelVs. Susil Moonasinghe andOthers™.
It is observed that in Modern Administrative Law theconcept of absolute discretion is unacceptable, "parliamentconstantly confers upon Public Authorities, powers which ontheir face might seem absolute and arbitrary. But arbitraiy
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power and unfettered discretion are what Courts refuse tocountenance. They have woven a network of restrictionprinciples which require statutory powers to be exercisedreasonably and in good faith for proper purpose only"Administrative Law – 7lh Edition – Wade at page 379.
Justice Dougles in his dissenting judgment in U.S. Vs.WundarlichP1 observed,
“Law has reached its finest moments when it has freedman from unlimited discretion of some ruler, some civil ormilitary official, some bureaucrats. Where discretion isabsolute man has always suffered. At times it has been hisproperty that has been invaded; at times his privacy; at timeshis liberty of movement; at times his freedom of thought; attimes his life; absolute discretion is a ruthless master.”
These Principles have been explained and elaborated in aseries of English decisions over a long period of time. LordWrenbury in Roberts Vs. Hopwoodm at 613 stated that,
“A person who is vested with a discretion must exercise hisdiscretion upon reasonable grounds. A discretion does notempower a man to do what he likes merely because he isminded to do so. He must in the exercise of his discretion donot what he likes but what he ought. In other words he mustby the use of reason, ascertain and follow the course whichreason directs. He must act reasonably."
Again in Breen Vs. Amalgamated Engineering Union151 (at190) Lord Denning MR held that “Statutory body must beguided by relevant considerations and not by irrelevant. If itsdecision is influenced by extraneous considerations whichought not to have been taken into account, then the decisioncannot stand. No matter that the statutory body may haveacted in good faith, nevertheless the decision will be set aside.”
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As the law has developed, certiorari and prohibition havebecome general remedies which may be granted in respect ofany exercise of discretionary power; The question is whethersome issue is being determined to some person's prejudice;certiorari applies to any exercise of discretion to a person sprejudice whether such exercise of discretion is due to malice,unreasonableness or both or even on any other ground.
The case of the petitioner was that on or about 4lh June1993 he was solely responsible for the detection of an offenceinvolving smuggling of gold. On completion of the Inquiry alarge quantity of gold and gold jewellery were declared forfeitand that in terms of section 153 of the Customs Ordinance halfthe proceeds of the sale of the forfeited goods had to be creditedto the customs reward fund and distributed in accordancewith the scheme approved by the Minister. Initiating officer isentitled to 60% of the said reward.
The scheme of award set out in PI has been in useof the Customs Department from 1988 with subsequentamendments and was known to all the employees of. theCustoms Department. When a detection is made officersof the Department can legitimately expect the head of theDepartment namely Director General of Customs to follow,apply and adhere to the approved scheme. Paragraph 4 ofscheme PI, as set out earlier defines the initialing officer asa “person who commences action resulting in seizure oninformation or observation personal to him."
The petitioner’s position is that it is he alone who grewsuspicious of the passenger and stopped and questioned him.If not for his action based on his personal observation andinitiation the said passengerwould have proceeded uncheckedand seizure would not have taken place.
It was contended that if not for the timely action taken byFernando by running to the V.I.P. lounge and stopping the carthe gold would have slipped through. It is true that Fernando
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had played an important part in the detection later. Thequestion is whether Fernando could be identified as theinitiating officer. In his own statement made on the very dayhe says he joined the petitioner. Jayawardena and J ayanetthiwhen they were questioning the passenger. When he joinedthe group he did not know about the passenger to form theopinion that he is the initiating officer in terms of the definitiongiven in the circular.
Further more a few days after the detection there was theinquiry referred to earlier in which Dissanayaka made a claimas the initiating officer. When one considers the facts of thecase claimant Dissanayaka could be categorized as a completeoutsider. Even at that stage it did not dawn upon Fernandothat he too should make a claim' His application is dated15. 08. 1994 to the Director General of Customs that he betreated as the initiating officer. This is nearly one and halfyears after the detection.
In these circumstances I hold that the decision ofthe Director General of Customs that Fernando is also aninitiating officer is unreasonable. I quash the orders dated02. 02. 1996 and 17. 06. 1995. Application is allowed withoutcosts.
GUNATILEKA v. WEERASENA