040-SLLR-SLLR-1980-V-2-GOViNDASAMY-v.-ATTORNEY-GENERAL.pdf
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GOVINDASAMY v. ATTORNEY-GENERAL
COURT OF APPEALRATWATTE, J. & ABDUL CADER J.,
A. (S.C.) NO. 157/75 (F),
C. COLOMBO 78754/MSEPTEMBER 30, 1980.
Evidence – Customs Ordinance, sections 152 and 155 – Degree of proof.
On 02.06.1973 customs officers seized 29 full bags of garlic and two open bagsof garlic from the plaintiff’s shop. After inquiry, the goods were declared forfeitedas they were imported into the country unlawfully.
Plaintiff instituted this action to recover a sum of Rs. 38,630/- being the value ofthe garlic alleged to have been seized wrongfully from him. It was the case of theplaintiff that the garlic was supplied by two local cultivators and therefore notimported and hence not liable to be seized.
Held:
The burden is on the State to prove that the garlic had been imported, beforethe plaintiff can be called upon to prove that it was lawfully imported.
The Customs Ordinance is a penal enactment which imposes severepenalties on those who violate its provisions. The State must therefore establishany breach of those provisions beyond reasonable doubt as in a criminalprosecution (Attorney-General v. Lebbe ThambyQI NLR 256 followed).
In terms of section 155 of the Customs Ordinance the plaintiff must be theowner of the goods.
Cases referred to:
Associated Battery Manufacturers (Ceylon) Ltd. v. United EngineeringWorkers Union TI NLR 541.
Attorney-General v. Lebbe ThambyQI NLR 256.
Attorney-General v. Sathasivam 69 NLR 110.
APPEAL from Judgment of the District Court of Colombo.
C. Ranganathan. with G. Kumaralingam for the appellant.
C. Sithamparampillai, SSC for respondent.
Curadvvult.
31st October, 1980ABDUL CADER, J.
On 2.6.1973, customs officers seized 29 full bags of garlic andtwo open bags of garlic from the plaintiff’s shop in 4th Cross Street,Pettah, and after inquiry by Panditaratne who was then serving as the
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Deputy Director of Customs, the goods were declared forfeit asgoods unlawfully imported into the country. However, the plaintiff wasgiven an opportunity to take the bags of garlic on depositingRs. 38,000/- which the plaintiff declined. The Customs thereafterdelivered the garlic to the C.W.E. for a sum of Rs. 7,812/-.
The plaintiff has filed this action to recover a sum of Rs. 38,630/-being the value of 3863 pounds of garlic alleged to have beenseized wrongfully from the plaintiff. It was the case of the plaintiff thatthis garlic was supplied by two local cultivators, Sudu Banda andRupasinghe, and, therefore, not imported and hence not liable to beseized. Various persons gave evidence for the two sides and thelearned District Judge after a careful consideration of the evidencedismissed the plaintiff’s action.
Before us, Counsel for the appellant drew pointed reference to thefact that this garlic had been kept in the open in the shop and thatthe two open bags were displayed in the front to be seen by anyonewho entered the shop, and when Customs raided the place, plaintiffdid not conceal the unopened bags. He drew our attention to the factthat the learned District Judge has drawn an adverse inferenceagainst the plaintiff in that “he does not say why he did not tell thesenames to the customs officers who took down the deposition” andreferred us to the evidence of Nadarajah, one of the customs officers,who admitted that he did not question the plaintiff as to from whomhe got the garlic. Counsel, therefore, commented that that was anunfair inference which is not justified by the evidence. But we havethe evidence of Panditaratne, the Inquiring officer, who stated thateven at the inquiry which was conducted on the same day, theplaintiff did not mention the names of those persons from whom hegot the garlic, though he was asked. Counsel pointed out that thewitness admitted that he had not made a note of that and, therefore,suggested to us that we should accept the evidence of the plaintiffon that point that he was, in fact, not questioned about the names ofthe persons who supplied him with the garlic. I
I am of the opinion that there is no reason to disbelieve Panditaratnemerely because he had failed to record that fact. In fact, it appears thathe had not even noted the time at which the inquiry was held or theplace where he had held the inquiry. But that apart, all thecircumstances would clearly point to the fact that he would havenecessarily questioned the plaintiff about the names of his allegedsuppliers. After all, the inquiry was being held to ascertain whether thisgarlic had been imported as the Customs suspected or grown locallyas the plaintiff contended and when the plaintiff maintained that he hadbought them locally from two cultivators at Nuwara-Eliya and Welimada,the obvious question that any inquiring officer would put under those
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circumstances would be to inquire for the names of these suppliers.This officer had been in public service for 34 years; in the Customs for 7years, and was considered sufficiently competent to be promoted asG.A. Nuwara-Eliya, at the time he gave evidence. The learned DistrictJudge accepted his evidence in toto.
The plaintiff stated that his lawyer was in attendance, seated byhim, when the inquiry was being held. Panditaratne stated that thelawyer made a statement at the conclusion of the inquiry. It is strangethat the plaintiff did not call his lawyer to support his story that hewas not asked for the names of the two witnesses by Panditaratne.
Therefore, I do not think that his failure to record the fact that heasked for the names of the two alleged suppliers should stand in theway of our accepting his evidence that what he says is true. It issuffioi«nt4o-note4hat thetearnedOietriot Judge rejected the evidence' of the plaintiff in toto. Therefore, the Distirct Judge’s inference that theevidence of Sudu Banda and Rupasinghe was procured to putforward a defence to the charge of the Customs is justified.
It is also significant to note that the plaintiff produced no documentswhatsoever to show that he had received these bags of garlic from histwo alleged cultivators. He admits that he has not made such an entry,but his explanation for his failure to make such an entry is contradictory.At one stage, he stated that it was the practice to merely stock them inhis shop and when he sells the stock, he writes out the bill deductinghis commission and pays the balance to the cultivator. But in cross-examination, he stated that when we receive goods, we issue receiptsto the suppliers (page 20). Later on, he stated at page 22:
“I sell the goods and write a bill for them. In that bill I write thename of the person by whom the goods are sent…. If anyonesends me goods I write the sender’s name. After selling thegoods I write a bill for the person who sent the goods.”
To Court:
It is not from these bill books that bills are issued to thosewho buy goods and to those who send goods. I have aseparate book for that.”
But the plaintiff never produced either the separate book or thereceipts issued to the two alleged local producers of garlic. I
I do not think that any reasonably prudent business man would adoptthis procedure. Such a person would make a note at least in a roughbook of the quantity of garlic that he had received and the person from
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whom he had received, the date and the vehicle in which it wasreceived, because in the event of a dispute, it is only then it would bepossible for him to ascertain and satisfy the cultivators that what hesays is the truth. One can at least even visualise a situation where therewas only one supplier in which event his goods may be stored in aparticular part of the shop and sold without such a note being made,even though that would not be a prudent form of business, but in thiscase, there are two suppliers – 20 bags from Rupasinghe and 21 bagsfrom Sudu Banda, so that I find it difficult to believe that the plaintiff wasin the habit of receiving goods from cultivators without making acontemporary record of the receipt of such goods.
So far, I have dealt with this question on the basis that Nadarajah’sevidence is that he did not ask for the names is true. The DistrictJudge has not referred to it. To my mind, that evidence of Nadarajahthat he did not question the plaintiff, who his suppliers were issuspect. Any intelligent customs officer raiding a place to seizeunlawfully imported articles would be concerned with the defenceput up by the suspect and when the plaintiff stated that he hadreceived these garlic from two local producers, naming the area oftheir residence, it is strange indeed that Nadarajah did not ask whothese suppliers were. The plaintiff’s evidence on that mattercontradicts the evidence of Nadarajah. I refer to page 24 of hisevidence in the brief.
Q. “When making the statement to the customs officers you didnot state the names of these witnesses ?
A. Though the names of the suppliers of goods were stated by
me they did not accept it.”
This is far different from the evidence of Nadarajah who stated thatat the time the deposition was made, the complainant did notmention the person from whom he obtained this garlic. (On page 45).
“I questioned him …. I did not question him as to from whom he gotthem. I am confident that I did not ask him so.” Once again, theplaintiff stated on page 24:
Q. “Did you say who sent it ?
A. I said, but the officers did not accept it…”
Today I remember quite well that I told customs officers thenames of those who sent me goods and that they did notaccept it.”
As regards his entire defence that garlic is grown in large quantitiesin Nuwara-Eliya and Welimada, it is interesting to note that the witness
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has stated in D3 that he buys two to three bags for money from peoplewho bring these goods in lorries, and to the question:-
Q. “The defence further suggests that it is impossible to find garlicof the order of three thousand pounds in the Welimada area ?
A. The answer was ‘yes’.
The relevant section 152 reads as follows:-
“If any goods shall be seized for non-payment of duties or anyother cause of forfeiture, and any dispute shall arise whetherthe duties have been paid for the same, or whether the samehave been lawfully imported, or lawfully laden or exported, theproof thereof shall lie on the owner or claimer of such goods,and not on the Attorney-General or the officer who shall seize orstop the same."
State Counsel conceded that the burden is on him to prove that thegarlic had been imported before the plaintiff can be called upon toprove that it was lawfully imported. But a dispute arose as regards thedegree of proof. While Counsel for the plaintiff contended that since thisis a matter leading to the forfeiture of goods, proof should be to thedegree of proof beyond reasonable doubt as in a criminal case, StateCounsel stated that that high degree of proof is not required in a civilcase, and submitted that all that is necessary is a preponderance ofprobabilities. He has cited the case of Associated BatteryManufacturers (Ceylon) Ltd. v. United Engineering Workers Uniorf''’where Vythialingam, J. has stated that the standard of proof beyondreasonable doubt required in criminal cases has not been extended toour civil courts. But that was not a Customs’ case. I am bound by thedecision in a similar Customs’ case reported in the case of Attorney-General v. Lebbe Thamb'f-> where Basanayaka, C.J. states as follows:-
“The Customs Ordinance is a penal enactment which imposessevere penalties on those who violate its provisions. The Crownmust therefore establish any breach of those provisions beyondreasonable doubt as in a criminal prosecution. The onus ofproving that the gold bars were imported being on the Crown itshould have established that fact beyond reasonable doubt.” I
I shall, therefore, examine the evidence in this case on the basis thatthe State must prove beyond reasonable doubt that the goods wereimported into the country. Besides the many circumstances set downby the learned District Judge in his judgment, there are the variouscircumstances which I have myself set down in the early part of thisjudgment. The evidence of E. R. K. D. M. W. Deheragoda and
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Ranaweera Abeyratne convinced the learned District Judge that therewas not sufficient cultivation of garlic in this country at that time as canreasonably account for as much as 3863 pounds in the possession ofthe plaintiff for public sale. The evidence of the Grama Sevaka is thatNimal Rupasinghe had one acre of land and he had planted garlic inabout 10 to 15 perches and whatever garlic cultivated was on a smallscale and they are sold in that area itself and he had not seen garlicbeing sent out in large quantities of thousands of pounds. S. M.Fernando had stated at page 42 that he examined the garlic taken fromthe possession of the plaintiff and found a difference between the garlicproduced locally and the garlic taken from the plaintiff.
Finally one is compelled to ask why the plaintiff is so interested asto litigate for goods which do not belong to him. He was obliged topay the cultivators only after the sale of the garlic. If the garlic hadperished or diminished in weight before sale, would he have beenobliged to pay the cultivators? Obviously, no, as he had not evenweighed the garlic at the time of seizure. If the Customs forfeited itbefore a sale, was the plaintiff obliged to reimburse the cultivators?He has not said so anywhere.
I am conscious of the fact that circumstantial evidence should notadmit of any other inference except that of the guilt of the accused.Adopting that standard, I am convinced beyond reasonable doubtthat this garlic was not produced locally but imported from a foreignsource.The Customs Officer has given evidence that they hadinformation that garlic was unlawfully unloaded in certain places inthe north and was brought with red onions that came to Colombofrom Jaffna. This would be hearsay. Therefore, it cannot be actedupon, but it gives a clue as to how the plaintiff came by the garlic. Iam satisfied on the admissible evidence that the defendant hasdischarged the burden imposed on the State.
The burden now shifts to the defendant to prove that this garlicwas lawfully imported. It is not even the plaintiff’s case that this garlicwas imported and, therefore, he has failed to prove lawful importationin terms of section 152.
Yet another hurdle that the plaintiff has to clear is section 155,Chapter 235 of Volume VIII, which reads as follows:-
“No claim to anything seized under this Ordinance shall beadmitted by such court, unless such claim be entered in thename of the owner, with his residence and occupation, norunless oath to the property in such thing be made by the owner,or by his attorney or agent, by whom such claim shall beentered, to the best of his knowledge and belief, nor unless the
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claimant shall at the time of filing his libel or plaint to establishhis claim satisfy the court that he has given notice and securityas in section 154 enacted."
Mr. Ranganathan conceded that it is an owner that can maintain anaction of this nature, but he argued that since the plaintiff was in theposition of transferring title to a purchaser from him, the plaintiff can beconsidered to be the owner of the goods in question for the time being. Ifind myself unable to agree with this contention. In his plaint, the plaintiffdid not claim to be the owner. (Vide para 4 of the plaint). The plaintiffadmitted at page 27 that he was not the owner of the goods and he isbound by that admission. It is true that the plaintiff would be able toconvey title to a purchaser, but that would be in the role of an agent. It isnot necessary to reiterate that an agent can never be the principal. InAttorney-General v. Sathasivam,l3> T. S. Fernando, J. stated as follows:-
“The onus of establishing that he was the owner. . . wasindisputably on the plaintiff.”
He went on to say:-
“But the question arises upon proceedings instituted pursuantto section 154 of the Ordinance, it does not call for an answeruntil such time as the plaintiff shall have established hisownership of the goods concerned."
I hold that the plaintiff cannot maintain this action in view of section155.
Mr. Ranganathan urged that since this matter was not put in issueexpressly, this Court should not take up this question for the first time,but I find that several questions have been addressed to the plaintiffon the question of ownership to which no objection has been taken.Since I am depending entirely on the evidence of the plaintiff toanswer this question against the plaintiff, the plaintiff cannot be heardto complain that prejudice has been caused to him by the failure ofthe defendants to raise this matter by way of an issue in the lowercourt. The action in limine fails. Nevertheless, I have discussed thefacts in this case and I have come to the conclusion that the plaintiffcannot succeed in this action.
The appeal is, therefore, dismissed with costs.
RATWATTE, J. -1 agree.
Appeal dismissed.