076-NLR-NLR-V-72-B.-JPSEPH.-Appellant-and-IINSPECTOR-OF-POLICE-Forshore-Police-Colombo-Respo.pdf
Joseph v. Inspector of Police
• 357
1969Present: Pandita-Gunawardene, J.JOSEPH, Appellant, and INSPECTOR OF POLICE (Foreshore
Police, Colombo), Respondent
S. C. 972/68—J. M. C. Colombo, 3S244
Charge oj possessing unclaimed goods in the Customs premises—Burden oj proof as toplace of ojjoice—Customs Ordinance (Cap. 235), ss. 101 (1) (6) [Regulation26 (a) (J) thereunder), 101 (2) [Notification thereunder], Hii.
In a prosecution for handling goods found concealed or unclaimed intho Customs premises at Colombo in breach of regulation 26 (a) (3) madeunder section 101 (1) (6) of the Customs Ordinance, tho averment by thecomplainant that tho offenco '..'as committed at tho Dry Dock Gate,Port of Colombo, is sufficient prima facie evidenco under section 143 of theCustoms Ordinance, read with Notification made under section 101 (2), thatthe offence was committed within the Customs premises.
358
PANDITA—QUNAWARDENE, J.—Joseph v. Inspector of Police
.ApPEAL from a judgment of the Joint Magistrate’s Court, Colombo.
K. Jeganalhan, for the accused-appellant.
Tyrone Fernando, Crown Counsel, for the Attornej'-General.
Cur. adv. vult.
June 17, 1969. Pax'dita-Gunawakdene, J.—
The appellant was convicted in the Joint Magistrate’s Court of Colomboof the following charge to wit: that he did on the 12th day of November,1967 at Dry Dock Gate, Port of Colombo within the jurisdiction of thisCourt, was handling four boxes containing 20 “ Maxwell Blue DryBattery ” found concealed or unclaimed in the Customs premises, withoutfirst informing the Customs officers or the Police officers on duty inbreach of regulation 26 (a) (3) made under Section 101 (1) (6) of Chapter235 L.E.C. The learned Magistrate imposed a fine of Rs. 50 in defaultthree weeks’ rigorous imprisonment. The appeal is from the convictionand sentence.
The relevant facts are that the appellant came from inside the Harbourand at the Drj' Dock Gate he was challenged by Li3'anage who was onduty. The appellant attempted to move on without stopping. He wasthen arrested a little distance beyond the gate by Liyanage, with thehelp of Constable Somasiri.* On searching the appellant, 4 boxescontaining Maxwell Batteries described in the charge, were foundconcealed in his waist. The appellant was produced before Moor thy,designated A. P. O. Customs. The letters A. P. O., I presume, stand forAssistant Preventive Officer. It was found that the Maxwell Batterieswere unclaimed goods.
The appellant denied that these batteries were in his possession andasserted'that he had been falsely implicated.
*»■
The learned Magistrate has accepted the evidence for the prosecutionand disbelieved the defence. Learned counsel for the appellant did notseek to canvass the finding of fact.
It was however contended that there is no proof that the offence wascommitted within the Customs premises, consequently it was said that•the charge must fail. In support of this contention, I was referred tothe unreported judgment of my brother de Kretser (S. C. 934/’GS—
J. M. C. 37659, S. C. Minutes of 5.3.1969). In that case too the chargewas laid for breach of the same regulation, made under Section 101 (1) (6)of the Customs Ordinance, Chapter 235. The regulation is in these terms :
“ No person shall handle any goods found concealed or unclaimed inthe Customs premises or found adrift or washed ashore within the waterarea forming part of the Customs premises, without first informing aCustoms or Police officer on duly There too it was.alleged that theoffence was committed at the Dry Dock Gate, Port of Colombo and thecontention was that there was no evidence that the offence was committedin the Customs premises.
PAXDITA-GUXAWARDEN'S, J.—Joseph v. Inspector of Police
$59
It was held that the limits of any Port or of any territorial waters isnot the same as its Customs premises ; that the presumption createdby Section 14S of the Customs Ordinance which provides " the avermentthat such offence was committed within the limits of any Port or theterritorial waters of Ceylon, shall be sufficient, without proof of such.limits unless the contrary be proved ” does not apply; and the Magis-trate was wrong in concluding that it was for the accused to prove thatthe incident happened outside the Customs premises. I find myself,with great respect, unable to agree with my brother de Kretser.
It is apparent from the evidence that the appellant had on this dayworked in the cargo boat named President Haig. He had come alongthe pier and turned right and reached Dry Dock Gate which heendeavoured to pass when he was challenged and arrested and thearticles found on him. The whole of the area, as the evidence shows,belongs to the Port. The question that arises is whether that area couldbe said to be within the Customs premises—-Section 101-(2) enacts “ inthis section and in any regulation made thereunder, * Customs premises ’means the Customs premises as defined from time to time by thePrincipal Collector of Customs by notification in the Gazette.” Thenotification provided for in this section appears in Vol. IV SubsidiaryLegislation of Ceylon—page 979. The notification proclaims “ By virtueof the powers vested in me by Section 101 (2) of the CustomsOrdinance (Chapter 235), I, Harry James Leigh Leighclare, PrincipalCollector of Customs, do by this notifiction :—
define the Customs premises at Colombo, and
Schedule
Colombo
(1) The Customs premises at Colombo shall be as follows :
(i) The water area enclosed by the Harbour breakwaters,including the Harbour Canal leading to the Beira Lake;
(ii) The following areas together with all the breakwaters,piers, jetties, landing-places and quays appertainingthereto—
(o) the area bounded on the—
north by a line drawn from the root of the south-westbreakwater along the quay and round all the jettiesto the corner of the quay on the western side ofthe canal basin;
west by a line drawn from the root of the south-westbreakwater along the sea wall to the northernlimit of the Battenburg Battery to Battenburg
360PAKDtTA-GUKAWARDENE, 3.—Joseph v. Inspector of Police
Gate, and thence along the northern and easternwalls of the Government Stores to the Customs maingate ; south by Church Street and thence through thebarrier opposite the Passenger Jetty and thencealong Leydon Bastion road ; and
east by the western side of the canal basin.
(b)-(g) needs no mention.
It is sufficient to say that in. accordance with this schedule, theCustoms premises includes the Port of Colombo and covers a verywide area, clearly inclusive of the area where this offence has beencommitted.
In the result I am satisfied that the appellant has been rightly convicted.The appeal is dismissed.
Appeal dismissed.