KEUNBMAN J.—Arunasalem and Collector of Customs.
1944Present: Keuneman J.AEUNASALEM, Appellant, and COLLECTOR OP CUSTOMS,
260—M. G. Point Pedro, 2,777.
Customs Ordinance (Cap.185) section 34—Failure of master of boat to account
for goods entered in manifest-•—Penalty imposed under section—Chargeunder s. 139(a).
The penalty imposed on the master of a boat under section 34 of the-C us toms Ordinance for failing to account for goods entered in themanifest on the arrival of the boat at a port is a fine within the meaning1of the 'Ordinance and section 139 (a) has no application to such a case.
PPEAL from a conviction by the Magistrate of Point Pedro.
h. A. Rajapakse, K.G. (with him 8. Mahadeva), for accused, appellant,Walter Jayawardene, G.O., for complainant, respondent.
Cur. adv. vult..
June 13, 1944. Ketjneman J.—
The accused was charged as follows:—That he did at Valve ttituraion March 2, 1943, become liable under section 34 of the Customs Ordinance(Chapter 185) to a penalty of Rs. 10,000 as master of boat No. 46 byreason of the fact that on the arrival of the said boat at Valve ttituraifrom Tuticorin 389 bundles of beedies and 111 bags of beedi tobaccoentered on the manifest of the said boat granted at Tuticorin was notfound on board, and that he had thus committed an offence punishableunder section 139 (a) of the Customs Ordinance, as amended by section8 of Ordinance No. 3 of 1939.
The relevant portion of section 34 runs as follows: —
“ If any goods entered on any clearance or other paper granted atthe place from which any ship shall have come, shall not be foundon board such ship, or if the quantity found be short and the deficiencybe not duly accounted for …. the master shall be liable to apenalty not exceeding Rs. 200 for every missing or deficient packageand twice the amount of duty chargeable on the goods deficient andunaccounted for if the duty can be ascertained, and the Collector isauthorised to require the payment of such fine and dues, and to decline-the granting of a clearance outwards to the master of any vessel so<liable and refusing to pay such fine and dues.
Section 139 (a) as amended runs:—“ If any person by reason of anyaction or omission becomes liable under the provisions of any sectionof this Ordinance to forfeit any goods or any sum of money, or to anypenalty other than a fine, such person shall, in addition, be guilty of anoffence ….”
Two principal points have been urged by Counsel for appellant:
that the penalty imposed by the Collector was a “ fine ” withinthe meaning of the Ordinance, and that section 139 (a) has no-application.
KEUNEMAN 3.—Amruisalem and Collector of Custom*.
that the accused has “ duly accounted for ” the deficiency. Asregards (1) I think it is clear that the Collector imposed apenalty of Es. 200 for each of the missing packages, making atotal of Es. 10,000. There is no evidence that any portionof the penalty of Es. 10,000 was levied in respect of duty charge-,able on the missing packages. Can the penalty imposed be
regarded as a fine ? Crown Counsel argued that “ fine ” meanta fine imposed by Court, but clearly the word “ fine ” is notused in that sense in section 34. The words “ such fine anddues ” used in the latter part of section 34 clearly refer to thepenalties mentioned earlier, and the section expressly says thatthe Collector “ is authorised to require the payment of suchfine and dues ” and to decline the granting of a clearance ifsuch fine and dues are not paid. The Collector had authoritythen to require the payment of a fine.
What is the difference between “ fine ” and “ dues ” ? I am ofopinion that the imposition of a penalty of Es. 200 in respect of eachof the missing packages is clearly in the nature of a fine. I donot think it can be regarded as dues. On the other hand, recovery ofCustoms duty in respect of the missing packages may well be regarded as“ dues ”. The word “ fine ” certainly fits the former penalty betterthan it fits the latter. I am therefore of opinion in this case that thepenalty imposed was a fine within the meaning of the Customs Ordinance'.It follows that section 139 (a) which deals with a “ penalty other than afine ” has no application to the facts of the present case.
There is really no need to deal with point (2) taken by the accused,but I must say that I am not at all satisfied with the reasoning of theMagistrate in this connection. He has used manifestly exaggeratedlanguage, and has accepted as fact what has not been proved in evidence.For instance he has said:—“ I have no doubt whatever that these 389bundles of beedies and 111 bags of beedi tobacco have been illicitlylanded in the port of Valvettiturai ”. This is in direct contradictionof the evidence of the Customs Officer (the only witness for theprosecution) who said, “ As far as I am aware there is no evidencethat this cargo was brought either into the territorial waters of Ceylonor unloaded in any port in Ceylon ”. The defence of the accused wasthat in the course of a voyage from Tuticorin to Nagapatam, the shipencountered violent weather and strong winds off Point Calimere. Asa result the mainsail was carried off and the mast fell and dashed againstthe side of the ship, which sprang a leak. To save the lives of the crewthe master was compelled to jettison all the cargo and the provisions.The Customs Officer,, when he visited the ship, found the damage tothe ship which I have described. The Magistrate appears to have hadhis mind obsessed with what he calls “ a similar case ” where anotherboat was also compelled to come to Valvettiturai after jettisoning thecargo. I need only add that there is no evidence on the record to showhow and under what circumstances that other ship came into Velvetti-turai, or to show any connection between that ship and the present one,and the Magistrate would have been well advised to base his judgmenton the evidence recorded in this case.
DE KBBTSER J.—Cassim. and Perera, Inspector of Police.
The Magistrate also commented on the fact that this ship, like theother' one, drifted into Valvettiturai ■ and not into the ports of Kaukesan-turai or Point Pedro where there are Customs Stations, and thoughtit strange that the winds and currents should have brought both shipsinto Valvettiturai. But here again there is not a scrap of evidence as towhere the winds and currents would carry a ship. It is clear that theMagistrate has elevated suspicion to the rank of proof and his findingis accordingly vitiated.
I however decide the case on the first point raised by Counsel for the-accused. I set aside the conviction and sentence and acquit the accused.
ARUNASALEM, Appellant and COLLECTOR OF CUSTOMS, Respondent