056-SLLR-SLLR-2002-3-BHAMBRA-v.-DIRECTOR-GENERAL-OF-CUSTOMS-AND-OTHERS.pdf
CA
Bhambra v. Director-General of Customs and Others
401
BHAMBRA
v.DIRECTOR-GENERAL OF CUSTOMSAND OTHERS
COURT OF APPEALTILAKAWARDANE, J. (P/CA) ANDWIJERATNE, J.
CA NO. 720/02NOVEMBER 08, 2002
Customs Ordinance, sections 107A (1) and 154 – Forfeiture of goods – Does
writ jurisdiction lie? Alternate remedy – Necessary parties not before court – Fatal?
The petitioner sought to quash the order of the respondents to seize and forfeit
the jewellery brought into the country by the petitioner, on the basis that the
respondents did not duly consider his explanation.
Held:
In terms of section 107A (1) an order of forfeiture is imperative, and itis not left to the decision of the inquiry officer. It is, therefore, not oneamenable to writ jurisdiction.
The failure of the petitioner to resort to an alternative remedy prescribedby law – action for damages in a court of competent jurisdiction – section154 precludes the court from intervention and the exercise ofdiscretionary powers.
The officer who made the impugned order forfeiting the items of jewellerynot being made a party respondent is fatal to the maintainability of theapplication.
APPLICATION for writs in the mature of certiorari and mandamus.
Cases referred to :
Palanisamy Nadar v. Lanktree – 51 NLR 520.
Dissanayake v. Siyane Adhikari Co-operative Societies Union – 60 NLR 140.
Murshid Maharoof for petitioner.
J. D. Silva, State Counsel for 1st to 4th respondents.
Cur. adv. vult.
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[2002] 3 Sri L.R.
December 10, 2002WIJERATNE, J.
In this application made against three respondents named in the 01petition who are officers of the Department of Customs, the petitionerseeks a mandate in the nature of writ of certiorari to quash the orderof the 2nd and 3rd respondents to seize and forfeit the jewellerybrought into the country by the petitioner. He also seeks the reliefby way of a writ of mandamus compelling the first respondent torelease the items of jewellery forfeited to the petitioner.
The petitioner made this application on the basis that on 21. 03.2001, upon his arrival in the port of Galle, his baggages were checkedby the officers of customs and found several items of jewellery which 10the petitioner says were bought in Dubai as gifts for his wife residentin Australia. The petitioner concedes that he did not make a declaration,but insists that he could not make a declaration as the prescribedforms were not available at the port of Galle. However, the petitionerstates that his verbal declaration made to the officers, was not consideredas there was a language barrier between them. He seeks to quashthe decision of the 2nd and 3rd respondents on the footing that theydid not duly consider his explanation that the items of jewellery werenot taken for commercial purposes but as gifts to his wife in Australia.
The respondents resisted the application of the petitioner on 20grounds that the facts elicited in proceedings of the inquiry beforethe customs officer as well on grounds of law affecting the jurisdictionof this court.
At the hearing the counsel for the respondents contested thejurisdiction of this court to grant writ of certiorari in view of the admittedfact that the impugned order of confiscation is one made under theprovisions of section 107 A (1) of the Customs Ordinance. It beingan imperative order under the relevant provisions and not one leftto the discretion of the officer making the same, a writ will not lie
CA Bhambra v. Director-General of Customs and Others (Wijeratne, J.) 403
on the same. Ancillary to such objection, the counsel also urged thatthe availability of an alternative remedy provided by the very ordinanceby way. of an action for damages in a court of competent jurisdictionin terms of section 154, this court will not exercise its discretionarypowers. He relied on the decision of the Supreme Court in the caseof Palanisamy Nadar v. Lanktreew where it was held:
"If goods are declared to be "forfeited" as opposed to 'liableto forfeiture' on the happening of a given event, their owner isautomatically and by operation of law divested of his property inthe goods as soon as the event occurs. No adjudication declaringthe forfeiture to have taken place is required to implement theautomatic incident of forfeiture."
It was further argued that the failure to name the officer who madethe order of forfeiture as respondent, even after his name and thefact of his not being a party is disclosed, is fatal to the application.
Vide the decision of the Supreme Court in the case of Dissanayake
(2)
v. Siyane Adhikari Co-operative Stores Union.
The counsel for the petitioner took up the position that P3 andP4 seizure notices were signed respectively by the 2nd and 3rdrespondents who are therefore made party respondents to theapplication. The fact of inquiry being held by another officer was notknown to the petitioner who is a foreigner and an officer of a shipby profession, who is mostly out on voyages. With regard to thenature of relief sought and the alternative remedy not being resortedto, the counsel invited this court to consider the circumstances ofthis particular case, as exceptional.
On a perusal of the proceedings before the customs officer inquiringinto the matter 1R3 it is apparent that the petitioner now taking upthe position that the non-availability of declaration forms at the port,prevented him from making the declaration, conceded that customforms were available with the crew members of his ship. At the inquiryhe has pleaded ignorance of what need be declared as the reason
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for non-declaration of the items of jewellery in his possession. Thisclaim however does not appear to be bona fide claim in view of hisown admission of having declared items of jewellery and paid dutyon his earlier visits to the ports. Further, it was revealed that thepetitioner was carrying in his possession cash memos relating topurchases the petitioner made two years prior to this incident, whenin fact he has already handed those items of jewellery to his wifein Australia. Thus, the circumstaces of the case do not operate infavor of the petitioner. The fact remains that the several items ofjewellery were in the baggages of the petitioner without the same beingdeclared to customs, accordingly have to be treated as goods concealed.
Section 107A (1) of the Customs Ordinance reads:
"… But, if any prohibited or uncustomed goods shall be found
concealed… the same shall be forfeited."
In terms of such provisions an order of forfeiture is imperative andit is not left to the decision of the inquiring officer. Thus, it is notone amenable to writ jurisdiction of this court. The petitioner doesnot meet this position in his arguments. The failure of the petitionerto resort to alternative remedy provided by law, irrespective of thereason that he is a foreigner and a sailor, precludes this court fromintervention and the exercise of the discretionary powers.
The officer who made the impugned order forfeiting the items ofjewellery, not being made a party respondent to this application, itself is fatal to the maintainability of this application. Ignorance of thename and description of such officer cannot reasonably be consideredas an excuse, as they are ascertainable information in the normalcourse of customs inquiries.
In these circumstances, the application of the petitioner cannot besustained either on facts or on law. In the result, the application isdismissed with costs.
TILAKAWARDANE, J. – I agree.
Application dismissed.
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