037-SLLR-SLLR-2001-V-3-DIAS-v.-DIRECTOR-OF-CUSTOMS.pdf
DIAS
v.DIRECTOR GENERAL OF CUSTOMS
COURT OF APPEAL
J. A. N. DE SILVA. J. (P/CA)
CA. 971/2000JANUARY 25. 2001MARCH 30. 2001MAY 11,2001
Customs Ordinance S.8(l), 9(1), 125, 129, 130, 135, 163 – Seizure -Bonafide – reasonable suspicion – Inquiries – Rules of Natural Justice.
The Motor vehicle which was 'Assembled' by the petitioner locally andpending Registration was seized by the Customs Officers. It was contendedthat such seizure was illegal and made without jurisdiction, as the partsfrom which the Jeep had been manufactured had been imported lawfully,and that the order of seizure purported to have been made under S. 135 istotally without jurisdiction in as much as such a seizure can be effectedonly if objectively there is material to suggest that it is liable to forfeiture.
Held :
It is clear that, the notice of seizure issued is not a final determination.
The scheme of the Customs Ordinance recognises and gives anopportunity to the person whose goods are seized to vindicate himselfat a subsequent inquiry. Court would interfere only if the statutoryprocedure laid down is insufficient to achieve justice.’ There is nothingwanting in that procedure set out in the Customs Ordinance.
In the instant case the Customs Officers had reliable informationwarranting further probing.
APPLICATION for a Writ of Certiorari.
Cases referred to :
Attorney-General v. Wlmaladharma – 78 NLR 327 at 333
Wiseman u. Borneman – 1971 AC 298
Peerlberg v. Varty – 1972 2 All ER 6
R v. Raymond – 1981 2 All ER 246
Furnell v. Whangurai High School Board – 1973 AC 660
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Fhiz Musthapha P.C.. with Mahanama de Silua for Petitioner.Sanjeewa Samaranayake S.C. for Respondents.
Cur. adv. vult.
May 11. 2001.
J. A. N. DE SILVA. J. P/CAThe petitioner has sought a mandate in the nature of a writof Certiorari to quash the seizure of a motor vehicle (ToyotaLand Cruiser) which according to the petitioner was assembledlocally and pending registration.
The relevant facts as mentioned in the petition are as follows.The petitioner claims to be a motor vehicle repair technicianwith a wide experience of nearly thirty years. He is the mainpartner of Dias Motor Engineers and sales which is a dulyregistered business. The petitioner’s firm has been in thebusiness of assembling tractor – trailers for sale in the localmarket and the trailers sold by the petitioner had been dulyregistered by the Registrar of Motor Vehicles. In or about the year1999 the petitioner became interested in the assembly of motorvehicles locally. He states that his inquiries revealed that thiswas being done by local businessmen and that it was moreprofitable to manufacture a motor vehicle out of parts whichare freely available in the local market.
The petitioner's son too runs a business of his own underthe name of Dias Motor Enterprises and is engaged in theimportation and sale of used auto parts, used tractor and usedtractor parts. The petitioner states that he purchased a nose -cut engine of a Toyota Land Cruiser Jeep for a sum ofRs. 125,000/= from the son in January 2000. In March 2000the petitioner purchased a windscreen, tyres and otheraccessories to assemble a Jeep from several local dealers.Thereafter on 02. 04. 2000 the petitioner purchased a dieselengine bearing No. 2K2881629 and a back half cut of a ToyotaLand Cruiser from Sachitra Enterprises of Malkaduwawa, alongwith other miscellaneous parts for a sum of Rs. 533,106/=. In
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June 2000 he completed the "manufacture" of the said ToyotaLand Cruiser Jeep at his workshop at Kurunegala.
The said Jeep had not been registered and on 28th of June2000, 2nd – 5th respondents (Customs Officers) visited thepetitioner's workshop and seized the same issuing P9, the noticeof seizure. Customs Officers have also taken into custody anumber plate bearing registration No 65 – 0927 which theyalleged that the petitioner had used for this Jeep.
On behalf of the petitioner Mr. Fhiz Musthapha PresidentsCounsel contended that the seizure was illegal and madewithout jurisdiction as the parts from which the Jeep had beenmanufactured had been imported lawfully into Sri Lanka.
The learned Counsel further submitted that the order ofseizure purported to have been made under Section 135 of theCustoms Ordinance is totally without jurisdiction in as muchas such a seizure can be effected only if objectively there ismaterial to suggest that it is "liable to forfeiture under theCustoms Ordinance". He drew the attention of Court to apassage in the Judgement of Justice Tennekoon in AttorneyGeneral v. Wimaladharma'" at 333 dealing with Section 125which is on similar terms.
"It does not mean that any goods may be seized by officers
of customs according to whim and fancyit only means
that an officer of customs bona fide acting as such may seizeany goods which he has reason to suspect are forfeited or liableto forfeiture. … To use the words adopted by the legislatureitself…. though in another context the officer of customs seizinggoods under Section 125 must have "probable cause" for suchseizure."
It was the submission of Mr. Musthapha that in the instantcase there is no such material and therefore the seizure is totallywithout jurisdiction.
It is therefore relevant to consider the scope of the power ofseizure under the Customs Ordinance.
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The Customs Ordinance contains many provisions dealing withsituations in which goods are forfeited. To mention a few Sections27, 30. 33. 34. 38. 43. 47, 50. 55. 59. 75. 80. 107. 118. 121and 125. From the above Sections it is clear that there are manygrounds on which customs officers may seizure goods asforfeited.
At this stage it is relevant once again to refer to the Judgmentof Justice Tennekoon in Attorney General v. Wtmaladharama(supra) where he says". . . the words in Section 125 which givepower to seize goods declared under the Customs Ordinance tobe forfeited must be read as meaning that the customs officermay seize goods only if he has reasonable ground for suspectingthat the goods are uncustomed or goods imported contrary toany prohibition or restriction and are for that reason forfeit."
FYom the above observations it is clear that a customs officermaking seizure must act bona fide and on the basis of areasonable suspicion. This denotes the commencement of acustoms investigation. Further steps may also be taken underSection 9(1) of the Ordinance to issue statutory notices forproduction of relevant documents. Inquiries may also be madeunder Section 8(1) for this purpose any person could beexamined on oath. These inquiries under Section 8(1) aregenerally a sequel to the investigation in which relevant evidencemay be gathered to provide the foundation for an inquiry, chargesare framed and the statutory election made under Section 129or 130 at the conclusion of this process. In terms of Section163 the Director General of Customs may mitigate the forfeitureor penalty and the decision is subject to review by the Minister.
The question that has to be decided is that whether theseizure effected by 2nd – 5th respondents (Customs Officers)should be considered as a final decision. As set out earlier fromthe scheme of the act it is clear that (P9) is not a finaldetermination. The petitioner in the petition takes up thefollowing positions.
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That the rules of natural justice required the petitioner to
be heard before the said seizure was made.
That the seizure was therefore liable to be quashed by a
writ of certiorari.
It should be noticed that bonajldes of Customs Officershave not been impugned by the petitioner apart from the vagueaverment at paragraph 29 of the petition which had been deniedby the respondents.
In the absence of an allegation of abuse of discretion theonly other question that has to be decided is whether thepetitioner should be given a hearing before the seizure is effected.
The learned State Counsel who appeared for the respondentssubmitted that there is no requirement under the CustomsOrdinance to afford a hearing to a person before the seizure. Itwas his submission that the power of seizure conferred oncustoms officers could be characterized as a purely executiveact analogous to and bearing a close resemblance to the powerof arrest conferred on police officers. A seizure may be lawfuland justified even though it is subsequently found either by theDirector General of Customs or by the District Court that aforfeiture cannot be supported on evidence. In support of thiscontention the learned State Counsel relied on the decisions ofthe following cases. Wiseman v. Borneman121, Peerlberg v.Varty131, R u. Raymond141 and Furnell v. Whang urai High SchoolBoard151.
In Wiseman v. BornemanfSupra) the tribunals' functionwas to decide whether on the basis of the documents submittedto it by the taxpayer and by the Inland Revenue, there was aprima facie case for the Revenue to recover unpaid tax. LordReid in that case made the following observation.
"Every public officer who has to decide whether to prosecuteor raise proceedings ought first to decide whether there is aprima facte case, but no one supposes that justice requires
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that he should first seek the comments of the accused or thedefendant on the material before him. So there is nothinginherently unjust in reaching such a decision in the absence ofthe other party."
The scheme of the Customs Ordinance recognizes and givesan opportunity to the person whose goods are seized to vindicatehimselffeat a subsequent inquiry. It should be kept in mind thatthe Court would interfere only if the statutory procedure laiddown is insufficient to achieve justice. I hold that there is nothingwanting in the procedure set out in the Customs Ordinance.
In the instant case the Customs Officers commenced theirinvestigation pursuant to information that this Jeep wasrunning under a false number plate (vide paragraph 7(a) of the2nd respondent affidavit). The veracity of this information isconfirmed by paragraph 20 and 25 of the petition whereinadmissions are made by the petitioner, that the Jeep was usedon the road and secondly that he was in possession of a numberplate of another vehicle. Subsequently investigations revealedthat the registration number 65 – 0927 belonged to oneKapuduwe Nandasiri Thero who had made a statement to thecustoms that he never sent his vehicle to the petitioner for repair(vide 2R5). Accordingly the customs officers have reliableinformation which warranted further probing.
I hold that the petitioner failed to establish any illegality onthe part of the respondents. If the petitioner is now in possessionof all the documents to establish that duty has been paid for allparts used for the Jeep he may produce them at the inquiry.This application is dismissed with costs.
Application dismissed