050-SLLR-SLLR-2004-V-1-DEDIGAM-v.-PREVENTIVE-OFFICER-SRI-LANKA-CUSTOMS-AND-OTHERS.pdf
CA
Dedigama v Preventive Officer, Sri Lanka Customs and others
(Udalagama J.)
371
DEDIGAMAVPREVENTIVE OFFICER, SRI LANKA CUSTOMS AND OTHERSCOURT OF APPEALUDALAGAMA, J.,
C.A. 962/02
JULY 16, 2003 AND
SEPTEMBER 16 AND 30, 2003
Writ of certiorari – Quash decision to seize and forfeit vehicle – CustomsOrdinance, sections 135, 152 and 164, – Tampered chassis – Onus probandi-Evidence Ordinance, section 106 – Availability of alternate remedy
The petitioner whilst being a member of the Uva Provincial Council, importeda duty free vehicle. On arrival it was found that the vehicle was tampered withand had an altered chassis number. The vehicle was seized by the Customs.The petitioner sought to quash the decision to seize and forfeit the vehicle.
Held: Per Udalagama, J.,
“Petitioner not having knowledge of such tampering is not a defenceas the onus probandi is on the party importing an article to establish lawfulimportation.”
Availability of an alternative remedy (section 164) prevents the petitionerfrom seeking relief by way of a prerogative writ.
APPLICATION for a writ of certiorari.
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Sri Lanka Law Reports
[2004] 1 Sri L.R
Case referred to:
1. Attorney-General v Wimaladharma – 78 NLR 327Nalin Ladduwahetti for petitioner.
F. Jameel, Senior State Counsel for respondents.
Cur.adv.vult
January 30, 2004UDALAGAMA, J.
The petitioner by this application seeks inter alia a writ in the 01nature of Certorari to quash the decision of 1 to 3 respondents toseize and forfeit the vehicle, the subject matter of this application,purportedly imported for the use of the petitioner and a writ in thenature of Mandamus to compel the 1 to 3 respondent to release theaforesaid vehicle to the petitioner.
It is the submission of the petitioner that in about March 2000whilst being a Member of the Uva Provincial Council and entitled tothe importation of a vehicle without duty provided same was notmore than 3 years old allegedly through a friend arranged to ship 10the vehicle, the subject matter of this application from Dubai.
It appears that the petitioner subsequent to obtaining a certifi-cate of export from the country of origin, the United Arab Emirates,opened a Letter of Credit in favour of the shipping agent to thevalue of US $ 11000 with instructions to ship the vehicle to the portof Colombo.
On arrival it was found as stated on behalf of the 1 to 3 respon-dents that the said vehicle was tampered with and had an alteredChassis number.
The 2nd respondent appears to have arranged to detain the said 20vehicle and sent out summons on the petitioner directing the latterto face an inquiry. The petitioner admits receiving summons fromthe 2nd respondent, vide para 17 of the petition.
Qfi Dedigama v Preventive Officer, Sri Lanka Customs and others 373
(Udalagama J.)
Admittedly the petitioner had also been informed that this mat-ter would be referred to the Government Analyst to ascertainwhether or not the Chassis number had in fact been tampered with.Also admittedly the subsequent report of the Government Analystconfirmed the allegation that the Chassis number of the vehicle hadbeen tampered with.
The petitioner appears to have also retained the services of oneVaruna Seneratne to appear on his behalf and represent the peti-tioner in the subsequent investigation at the Department ofCustoms and had admittedly given the former a Power of Attorney(para 18 of the petition).
The petitioner claimed to have had no knowledge of the tam-pering as established by the report of the Government Analyst.
From the aforesaid it is apparent that the subject matter of thisapplication, the vehicle had a tampered chassis number and thatthe petitioner was given an opportunity to place his case before theCustoms.
The importation of a vehicle with a tampered chassis number inmy view is clearly unlawful. I am also inclined to the view that thepetitioner not having knowledge of such tampering is not a defenceas the onus probandi is on the party importing an article to estab-lish lawful importation vide the provisions of section 152 of theCustoms Ordinance.
As held in Attorney-General v Wimaladharma^K "The burden ofproving lawful importation under the provisions of section 152 of theCustoms Ordinance is on the claimant and this no doubt is in con-formity with the rationale underlying section 106 of the EvidenceOrdinance that when a fact is within the knowledge of any personthe burden of proving that fact is upon him”.
In any event in view of the Government Analyst’s report anoffence under the Customs Ordinance had been clearly establishedand notwithstanding notice on the petitioner to show cause why thevehicle should not be forfeited, the latter having failed to respond Iwould hold that the 1 to 3 respondents acted within the provisionsof the statute to forteit the vehicle. This court finds no mala tides inthe aforesaid action of the respondents. There is not even a sug-gestion of mala tides on the part of the 1 to 3 respondents.
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Besides, the petitioner had even failed to seek relief by resort-ing to the provisions of section 164 of Customs Ordinance to hisown peril.
The availability of an alternative remedy in any event precludesthe petitioner from seeking relief by way of a prerogative writ.
On an evaluation of documents filed this court is satisfied thatthe subject matter of the application was duly seized under the pro-visions of section 135 of the Customs Ordinance and the illegaltampering of the Chassis number established by scientific proof isan offence under the provisions of section 119 of the CustomsOrdinance which in my view had been proved.
Besides, the petitioner had also been given ample opportunity toshow cause which he had failed to pursue.
There appears to be no want or excess of jurisdiction on the partof the Customs Authorities or a denial of natural justice to the peti-tioner or an error on the face of the record to entitle the petitionerto relief by way of Cetiorari nor the existence of a duty owed to thepetitioner by the 1 to 3 respondents to entitle the petitioner to a writof mandamus.
For the aforesaid reasons this application is dismissed.
Application dismissed.
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