159-NLR-NLR-V-48-ARUMUGAPERUMAL-Appellant-and-THE-ATTORNEY-GENERALRespondent.pdf
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Arumugaperuma l v. The Attorney-General.
1947Present: Howard CJ. and Windham J.
ARUMUGAPERUMAL, Appellant, and THE ATTORNEY-GENERAL, Respondent.
S. C. 328—D. C. Point Pedro, 1916.
Customs Ordinance—Forfeiture of boat—Guilty knowledge of owner—Seizure—What constitutes—Authority to auction—Opportunity of owner to makeclaim—Sections 127, 128, 132, 146, 147.
The forfeiture of a boat under section 128a (i) of the Customs Ordinanceis valid irrespective of the guilty knowledge of the owner of the boat.
The seizure contemplated by section 132 of the Ordinance is a physicalact of seizure.
^^PPEAL from a judgment of the District Judge, Point Pedro.
N. K. Choksy, K.C. (with him H. W. Thambiah, S. Mahadevan and
Gandevia), for the plaintiff, appellant.
H. W. R. Weera&ooriya, C.C., for the Attorney-General, respondent.
Cur. adv. vult.
(1937) 39 N. L. R. 113.
511
HOWARD CJ.—Arumugaperumal v. The Attorney-General.
October 13, 1947. Howard C.J.—
This is an appeal by the plaintiff from a judgment of the District Judge,Jaffna, dismissing his action with costs. The action was instituted bythe plaintiff against the Attorney-General as representing the Crownpraying (a) that a boat belonging to the plaintiff be declared not liable tobe sold by the Customs authorities, (b) that the said boat be declarednot liable to be forfeited under section 128a of the Customs Ordinanceand (c) that the plaintiff be declared entitled to a clearance outwards inrespect of the said boat. The facts that led up to the institution by theplaintiff were as follows. The boat valued at Rs. 1,500 was loaded in theSouth India port of Athirampatanam with an assorted cargo consistingof beedies. gingelly, poonac and other goods. These goods were consignedto different consignees at Point Pedro and left Athirampatanam in theearly hours of March 11, 1943. The boat arrived at Point Pedro onMarch 14, 1943, a Sunday. The manifest of the cargo was handed overby the port authorities at Athirampatanam to Balasundaram, the tindalof the boat. The latter was in complete charge of the vessel on behalf ofthe plaintiff. The manifest indicated a consignment of 88 bundles ofbeedies to one S. V. Sivasubramaniam. According to the evidence ofRamachandran, the Sub-Collector of Customs at Athirampatanam, eachof these bundles of beedies was a double package consisting of two ordinarypackages stitched together. Originally the correct number of beedieshad not been inserted, but after the Customs authorities had discoveredthe mistake the weight of the beedies was doubled and the correctioninitialled on the shipping documents D 3 and D 4. The actual manifestD1 which was handed over to the tindal at Athirampatanam andsubmitted to the Customs authorities at Point Pedro contained the weightof 88 single bundles. The shipping documents D 3 and D 4, however,indicated the correct weight. Balasundaram, the tindal, endeavouredto explain the discrepancy in the documents in his evidence. He statedthat he found the weight for the 88 bundles of beedies as given in D 1 wasin excess of the true weight and he pointed out this mistake to Rama-chandran who corrected it to read 1.9.2.24 and initialled it. TheDistrict Judge has disbelieved the evidence of Balasundaram and acceptedthat of Ramachandran. It has, therefore, been established that Bala-sundaram left port with 88 bundles of beedies, each bundle consisting oftwo ordinary sized packages stitched together. The manifest, however,was not specific as to the size of the bundles, but as presented to theCustoms authorities at Point Pedro indicated a weight of 88 single bundles.Customs duty was paid on 88 single bundles. Balasundaram was unableto account for the disappearance of the remaining 88 bundles. TheCrown asked the Court to accept the inference that in order to avoidCustoms duty they were landed somewhere else on the northern coast ofCeylon. The District Judge was of opinion that this was the onlyreasonable conclusion.
In the circumstances as briefly detailed the Customs authorities tookthe following action. After the cargo had been landed at Point Pedro onMarch 15, 1943, R. K. Subramaniam, the Sub-Collector of Customs,checked up the documents and weighed the bundles. The weight more
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512HOWARD C.J.—Arumugaperumal v. The Attorney-General.
or less agreed with the weight noted in the manifest, the alteration inwhich bore the initials of the Collector at Athirampatanam and the sealof the port authority. On March 16, 1943, the boat after being washedand fumigated was given coastwise clearance and proceeded to Valvetti-turai. The tindal, Balasundaram, had applied for clearance outwardsbut this had been refused by the Sub-Collector, Point Pedro, on theground that the figures regarding the weight in the manifest had beenaltered. On April 20, 1943, the plaintiff wrote P 5 to the Collector ofCustoms, Jaffna, stating that he understood his boat had been detainedon the orders of the Assistant Collector and inquiring why such actionhad been taken. On April 21, 1943, the Sub-Collector at Point Pedrowrote the following letter P 6 to Balasundaram, the tindal of the boat : —
“ H. M. Customs,
Point Pedro, 21 April, 1943.
The Principal Collector of Customs, Colombo, has imposed upon youa penalty of Rs. 15,000 under sec. 34 and a further penalty of Rs. 15,000under sec. 127 of the Customs Ordinance (Chapter 185) and you arerequested to remit this amount within 10 days, on receipt of this letter.
You are requested to produce the boat to this port forthwith.
P. P. Balasundaram,(Sgd. illegibly)
Tindal of Bt. No. 15.Sub-Collector.”
The boat was not apparently produced as requested in P 6, but was keptby the plaintiff at Valvettiturai. On May 14, 1943, the sale of the plaintiff’sboat was advertised in the Government Gazette, vide P 9. On May 20,1943, the plaintiff wrote P 7 to the Attorney-General giving notice of hisintention to institute an action in respect of the advertising of the boatfor sale and also for a declaration that the boat was entitled to a clearanceoutwards which had been refused.
The District Judge, in dismissing the plaintiff’s action, has found (a)that the plaintiff was not in possession of the boat after clearance coast-wise was granted at Point Pedro on March 16, 1943,(b) that the
declaration of forfeiture of the said boat by the Principal Collector ofCustoms under section 128a of the Customs Ordinance was not wrongful,
that the said boat was liable to be forfeited under that section and soldas forfeit to the Crown under the provisions of the Customs Ordinance,
that the plaintiff was not entitled to a clearance outv/ards withoutpaying the penalties imposed, (e) that the declaration of the detention ofthe boat under section 26 of the Customs Ordinance was legal, (/) in viewof the findings under (d) and (e) the plaintiff was not entitled to maintainthe action, (g) the plaintiff could not maintain the action as he hat^failedto comply with sections 146 and 147 of the Customs Ordinance.
Various points have been raised by Mr. Choksy on behalf of the plaintiff.Section 128a of the Customs Ordinance is worded as follows : —
“ 128a. (1) Any ship not exceeding 250 tons tonnag® knowingly usedin the importation or exportation of any goods prohibitedof import or export, or in the importation, exportation or
HOWARD C.J.—Arumugaperumal v. The Attorney-General.
513
conveyance or in the attempted importation, exportation orconveyance, of any goods with intent to defraud the revenue,shall be forfeited.
The owner or master of any ship exceeding 250 tons tonnage, whichwould be liable to forfeiture under this section if the drip wereof less than 250 tons tonnage, shall forfeit a sum not exceedingten thousand rupees, and the ship may be detained on theorder of the Collector until such sum is paid or until securityfor its payment is given to the satisfaction of the Collector.”
Mr. Choksy contends that before a ship could be forfeited under sub-section (1) of this section the guilty knowledge of the owner in the import-ation of prohibited goods must be established. 'There was no proof inthe present case that the plaintiff had any knowledge that goods werebeing imported without the payment of* the prescribed Customs duties.There was an absence of any intention to defraud the revenue. It hasbeen found by the District Judge that beedies were imported by thisvessel without the payment of the prescribed Customs duties. Thisfinding has not been challenged. The boat was therefore used for theimportation of goods prohibited of import with intent to defraud therevenue. In the circumstances I am of opinion that the boat was forfeitedunder the provisions of section 128a and that such forfeiture was validirrespective of the guilty knowledge of the owner. In this connection Iwould refer to the case^of De Keyset v. British Railway Traffic & ElectricCo., Ltd.'.
The headnote of this case is as follows : —
“ A motor tank wagon was seized by officers of the Customs andExcise on the ground that it was being used in the conveyance of goodsliable to forfeiture under Customs Acts. The owners claimed thevehicle under s. 207 of the Customs Consolidated Act, 1876, and aninformation was exhibited before justices on behalf of the Commissionersof Customs and Excise for the foreiture and condemnation of thevehicle under s. 226 of the Act: —
Held, that, it having been admitted that the vehicle had been usedin the conveyance of goods liable to forfeiture (in which case s. 202 ofthe Act provides that the vehicle itself shall be forfeited), the justiceswere bound to condemn the vehicle, s. 226 giving them no discretion torefuse to do so on the ground, for example, of hardship on an innocentowner.”
Section 202 of the Customs Consolidated Act, 1876, was worded asfollows : —
“ All …. conveyances …. made use of in theimportation, landing, removal, or conveyance of any uncustomed,prohibited, restricted, or other goods liable to forfeiture under theCustoms Acts shall be forfeited” 1
1 l1936) 1 K. B. 224.
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HOWARD C.J.—Arumugaperumal v. The Attorney-General.
In his judgment on p. 230 Lord Hewart L.C.J. stated as follows:—
“ There is no opportunity for mercy with regard to a conveyancewhich has been forfeited, although there may be grounds for contendingthat the conveyance does not come within the class of forfeited property.
In the present case ho such contention was advanced. All that wasargued on behalf of the respondents was that they did not know of thewrongful use for which the lorry was being employed. That circum-stance was wholly irrelevant to the proceedings before the justices. Itdid not affect the purpose for which the lorry had been used. If thatsort of argument were to be open to the owner of a conveyance in sucha case as the present, the result might be, in the case of two partners,where one was aware of the wrongful use to which the vehicle wasbeing put and the other was not, that the vehicle might be excusedfrom condemnation because of the innocent mind of one of the partners,that result enuring for the benefit of the guilty partner. In the presentcase the argument adduced before the justices, which was really anargument in mercy, that the owner of the vehicle was not aware of theillegal vise to which it was being put, was wholly irrelevant to the onlyquestion which the justices had to consider.”
The next point raised by Mr. Choksy was that the Customs authoritiescould not proceed to advertise the boat for sale merely because of forfei-ture under section 128a. Before such action was lawful, the forfeituremust be completed by a physical seizure of the boat under section 132 ofthe Customs Ordinance. This section provides that “ all goods and allships and boats and all carriages and all cattle liable to forfeiture underthis Ordinance, shall and may be seized in any place, &c.”. Mr. Choksycontends that the words “shall and may be seized ” are mandatory andmust be read as “ must be seized ”. Seizure having been made undersection 132, ships, boats and goods are deemed and taken to be condemnedunder sections 146 and 147. These sections give a right to the owner ofthe goods to make a claim. Mr. Choksy argues that, no seizure havingbeen made under section 132, the plaintiff was deprived of the protectionafforded to him of making a claim under section 146. Mr. Weerasooriyaon the other hand contends that by the refusal of outward clearance,notification of auction, and the request to Balasundaram, contained inP 6 for production of the boat at Point Pedro there has been a seizurewithin the meaning of section 132 of the Ordinance. I am unable toaccept this contentioq. Th<e Ordinance contemplates a physical act ofseizure. P 6 with its request for production of the boat to Point Pedroindicates clearly that there had at £hat time been no seizure. Nor dothe admissions of the plaintiffs as contained in P 5 and "P 7 indicate aseizure as contemplated in section 132. The term “ seizure ” must betaken in its ordinary and natural meaning and is not a term of art, videjudgment of Cave J. in Johnston v. Hogg1. The ordinary meaning of“ seizure ” is a forcible taking possession. In this case I am, therefore,of opinion there was no seizure.
The only remaining question for decision is whether in the absence of aseizure the Customs authorities were justified in putting up the boat for
* (1883) 10 Q. B. D. 434.
Chinnathamby v. Somasundera Aiyer. .
515
auction. In my opinion Mr. Choksy’s contention that further action onthe part of the Customs authorities was necessary to complete the owner-ship of the Crown even though the boat was forfeited under section 128ais in accordance with the law. The words “ shall and may be seized ”where they occur in section 132 must be construed as “ must be seizedIn this connection I would refer to In re John Henry Lamb De Keyserv. British Railway Traffic and Electric Co., Ltd. (supra) also lends supportto this contention of Mr. Choksy’s.
It is only after the forfeiture of the boat has been followed by“ seizure ” that sections 146 and 147, providing procedure by whichan owner may assert his claim come into operation. As there has beenno seizure in this case sections 146 and 147 have not been operative andthe plaintiff has had no opportunity of asserting his claim. In thecircumstances the Customs authorities have not adopted the procedurerequired by law to precede the condemnation of the boat. There wastherefore no authority to auction the boat. To hold otherwise would beto deprive the owner of a ship the opportunity of making a claim. Atthe same time the plaintiff having failed to pay the penalties imposedunder section 127 of the Ordinance was not by virtue of section 122entitled to clearance.
For the reasons I have given I think the plaintiff, though not entitledto succeed under paragraphs 12 (ii) and (iii) of his plaint, is entitled to adeclaration under paragraph 12 (i) that the boat is not liable to be soldby the Customs authorities. The plaintiff must also have his costs inthis Court and the Court below.
Windham J.—I agree.
Appeal allowed