JAWARDVSDIRECTOR GENERAL OF CUSTOMS AND OTHERSCOURT OF APPEAL,
CA (WRIT) 992/99,
JUNE 17, 2005
Writ of Certiorari-Customs Ordinance-Sections 154, 163,165-Passenger pos-sessing foreign currency-Forfeiture-Penalty-Power to mitigate-Who has theright ?-Forfeited property-ls it State property ? – Can property which is seizedas forfeit be restored ? – Part released -Subsequently order cancelled-Order torelease – is it a nullity-Does writ lie ?
The petitioner a passenger to Bangkok possessed Japanese foreign cur-rency, and he had failed to declare same at the Airport. After an inquiry, orderwas made forfeiting the foreign currency, and a further penalty was imposed.After paying the penalty, the petitioner gave notice to the 1st respondent underSection 154, this notice was rejected as being out of time. Another appeal waslodged, and a fresh inquiry was held and after the inquiry the petitioner wasinformed that out of 7,775,000 Yen, 5,000,000 Yen would be released butsubsequently the said Order was cancelled. The petitioner sought to quashthe said Order and further sought a writ of mandamus to enforce the earlierorder. It was contended that, the 1st respondent was functus after the firstOrder.
Once goods become seized as forfeited the goods become Stateproperty.
Specific provisions are laid down to release goods that are seizedas foreited under Section 164.
The consideration under Section 163 could only mitigate punish-ments and he has no authority to release goods that are seized asforfeited.
The decision of the 1st respondent releasing a part of the forfeitedsum is ultra vires the powers of the Director General of Customsvested under Section 163. The said decision is a nullity.
The letter canceling the earlier order is not a decision of the 1strespondent but a correction informing the correct procedure.
The said correction is not amenable to courts jurisdiction.
Sri Lanka Law Reports
(2005) 2 Sri L R.
A writ of mandamus cannot be used to enforce an Order that is anullity.
APPLICATION for a Writ of Certiorari/MandamusReferred to :
(1) Bangamuwa vs. S. M. J. Senaratne, Director General of Customs andAnother 2000 1 Sri LR 106
J.S. Boange for petitioner
Sanjaya Rajaratnam, Senior State Counsel for 1st and 2nd respondents.
A. S. M. Perera, P. C. with Herath Ananda for intervenient petitioner,
Cur. adv. vult
1.1th July, 2005.
SRISKANDARAJAH, JThe Petitioner in this application has sought a writ of certiorari to quasha decision of the 1 st Respondent dated 27th September, 1999 P4 cancel-ling an earlier order dated 20th September 1999 P3 informing the Peti-tioner that a sum of Japanese Yen 5,000,000 will be released to the Peti-tioner. The Petitioner also has sought a writ of mandamus on the 1stRespondent to enforce the order dated 20th September, 1999 by which asum of Japanese Yen 5,000,000 was to be released to the Petitioner.
The Petitioner a passenger to Bangkok was possessing foreign cur-rency of 7,755,000 Japanese Yen but he has failed to declare the same atthe Airport to the customs. On detection of this currency an inquiry washeld by the customs and an order was made forfeiting the foreign currencyof 7,755,000 Japanese Yen and a further penalty of Rs. 100,000 was im-posed. This penalty was paid by the Petitioner. Thereafter the Petitionerhad given notice to the 1 st Respondent under Section 154 of the CustomsOrdinance but this notice was rejected as being out of time. The Petitionersubmitted that he thereafter made an Appeal to the Respondent and afresh inquiry was held at which the key witnesses gave evidence. After theinquiry he received a letter dated 20 September, 1999 stating that a sumof 5 million Japanese Yen would be released out of the sum of 7,775,000Japanese Yen. Subsequently the 1 st Respondent had cancelled the saidorder by the letter of 27.09.1999. The Petitioner submitted that the 1stRespondent had no power or jurisdiction to vary his earlier Order as hewas functus after the first order of 20.09.1999 and that the purported can-cellation was mala fide and/or made at the instance of interested partieswho were seeking to gain a reward in the event of the cancellation of the
Director General of Customs and Others fSriskandarajah, J.)
order of 20.09.1999. The Petitioner further submitted that in this instantcase the Petitioner had already paid the penalty and therefore there wasno question of mitigation of penalty. The Petitioner’s appeal to the DirectorGeneral of Customs is to mitigate the forfeiture of the Japanese Yen andthe 1 st Respondent has retained the forfeiture in respect of a certain amountof Japanese Yen thereby mitigating the earlier forfeiture and released partof the Japanese Yen and thereby he was acting within the relevant Sec-tion. The Petitioner further submitted that in any event he becomes func-tus, and only a Court of Law or the Minister could review the order that the1 st Respondent had made.
The respondents submitted that in terms of Section 163 of'the Cus-toms Ordinance it is only the Director General of Customs who has thepower to mitigate the forfeiture. It does not authorize the Director Generalto restore any property which is seized as forfeit. The only power theDirector General has in terms of Section 163 is to mitigate a foreiture orpenalty if it is deemed such forfeiture or penalty is unduly servere. Insupport of this contention the Senior State Counsel cited Bangamuwa vs.
S.M. J. Seneratne, Director General of customs and Another*1* at 111 inwhich case J. A. N. D Silva J after considering Section 163, 164 and 165of the Customs Ordinance held, that the order of the Director General torelease the vehicle to Haskell Lanka (Pvt.) Ltd. is ultra vires the powersvested in him.
In reply to the above submission the Petitioner submitted that it isnecessary to look into the definition of the terms ‘mitigation’, ‘forfeiture’and ‘release’ and thereafter consider the context in which these termshave been used and the general tenure of the enabling Act or Law. Forfei-ture has been defined in the Law Lexicon by P. Ramanatha Aiyar inter-aliaas the “divestiture of specific property without compensation in conse-quence of some default or act forbidden by law”. Mitigation is reduction inpunishment or penalty. Release inter – alia is construed as discharge of anexisting obligation or right of action by the person, in whom the obligationor right is vested to the person against whom it exists. Therefore applyingthese definitions to the phrase to “mitigate a forfeiture” it could be inter-preted to mean a reduction in the amount in respect of which a forceiturehas been imposed and it would necessarily follow that this sort of in-
Sri Lanka Law Reports
(2005) 2 Sn L. R.
stance would cover items or goods which are of a divisible nature. Forexample bales of cloth, bags of lentils, currency etc., and not in the caseof vehicles and machniery, which are not divisible visible in nature.
In this instant case after an inquiry an order was made by the inquringofficer of Customs on 24. 03.1997 forfeiting the foreign currency amount-ing to Japanese Yen 7,755,000 under Section 12, 44 and 107A (2) andalso imposed a penalty of Rs. 1,000,000.00 which penalty had been paidby the Petitioner. Thereafter the Petitioner had given notice lodging hisclaim to the currency under Section 154 of the Customs Ordinance to the1 st Respondent; however he was informed by the 1 st Respondent that hewas out of time. As provided by Section 154 unless the person from whomsuch goods shall have been seized, or the owner of them, or some personauthorized by him, shall within one month from the date of seizure of thesame, give notice in writing to the Collector that he intends to enter aclaim to the goods seized and proceedings for the recovery of the goodsare instituted in the proper Courts within 30 days from the date of noticethe goods seized shall be deemed to be forfeited and it shall be dealt withas goods seized as forfeited. Once the goods become seized as forfeitedunder this Ordinance the goods become state property. Specific provi-sions are laid down to release goods that are seized as forfeited underSection 164. On the other hand the Collector under Section 163 couldonly mitigate punishments and he has no authority to release goods thatare seized as foreited. The title and position of the goods seized as forefeitedare with the state and this property cannot be a subject matter of mitiga-tion. Therefore the decision of the 1 st Respondent communicated by hisletter of 20th September, 1999 P3 stating that a sum of Japanese Yen 5million would be released out of the sum of 7,775,000 was ultra vires thepowers of the Director General of Customs vested under Section 163.Hence the decision communicated by the letter P3 is a nullity. The letterof 28th of September, 1999 P4 by which the 1 st Respondent informed thePetitioner that “he has ordered the release of a portion of the Japanesecurrency forfeited is on misreading the Law in connection with it. Hence
Dr. Gajaweera vs. Air MashaflG.D. Perera and Others (Eric Basnayake, J.)
please treat the order made to release Japanese Yen 5,000,000 to you ascancelled” is not a decision of the 1st Respondent but a communicationinforming the correct position. Hence this communication is not ame-
nable to writ jurisdiction. A writ of mandamus cannot be issued to enforcethe order marked P3 as it is a nullity. For these reasons this Court dis-misses this application without coasts.
Imam — I agree.
JAWARD vs DIRECTOR GENERAL OF CUSTOMS AND OTHERS