004-SLLR-SLLR-2003-V-3-ISHAK-v.-LAXMAN-PERERA-DIRECTOR-GENERAL-OF-CUSTOMS-AND-OTHERS.pdf
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Sri Lanka Law Reports
[2003) 3SriL.R
ISHAKv
LAXMAN PERERA,DIRECTOR GENERAL OF CUSTOMS AND OTHERSCOURT OF APPEALTILAKAWARDANE, J. (P/CA)
ABEYRATNE, J.
C.A. NO. 447/2001MARCH 26, 27, 2003
Customs Ordinance – Section 12, 44, 137, 152, and 154 – Exchange ControlAct – Foreign Currency forfeited – Seized – Is forfeiture amenable to writ juris-diction ? -A vail ability of alternative remedy.
The petitioner sought a writ of certiorari to quash the order of the AssistantDirector of Customs – 2nd respondent, where he had forfeited the foreign cur-rencies under the provisions of the Customs Ordinance, which were detainedat the departure counter at the Airport.
Held :
.The goods were forfeited by operation of law and as a consequence of
the imperative terms of the law it was not left to a decision or order tobe made by an Inquiring Officer.
. By implementation of law there was an automatic forfeiture of the goods
followed by seizure. Therefore there is no order that can be challengedin the Court of Appeal by invoking its writ jurisdiction.
(Ill) He has already instituted action, therefore no writ lies.
APPLICATION for a Writ of Certiorari.
Ishak v Laxman Perera, Director General of Customs and others
CA(Shiranee Tilakawardane. J. P/CA.)_!£_
Cases referred to :
1. Palasamy Nadar v Lanktree – 51 NLR 5202- Attorney-General vs Lebbe Thamby- 61 NLR 254
Attorney-General vs W.Wimaladharma – 78 NLR 327
Fernando v Dharmasiri – 72 NLR 320
Gunasekera v Weerakoon – 73 NLR 262
Rodrigo v Municipal Council, Galle, 49 NLR 89
Samarakoon v Tikiri Banda – 51 NLR 259
Somasunderam Vanniasingham v Forbes & Another 1993 – 2 Sri LR362 (distinguished)
MM. ZuhairP.C., with AM. Jeffry tor petitioner.
Janak de Silva, S.C. for 1st, 2nd and 4th respondents.
cur.adv.vult
June 2, 2003
SHIRANEE TILAKAWARDANE, J. (P/CA)The petitioner has preferred this application seeking a Writ of 01Certiorari to quash the order of the 2nd respondent dated
(P5). In this order the 2nd respondent had forfeited theforeign currencies valued at Rs. 8,531,153/- under Section 12 and44 of the Customs Ordinance read with the Exchange Control Act,which were mentioned in the inventory, which had been marked P1A1 to P1A 79, which were detained at the departure counter at theKatunayake International Airport on 23.03.2000. The order alsoimposed forfeiture of sum of Rs: 25,593,459 being treble the valueof the currencies, and the forfeiture of Rs. 100,000/- on the 10Assistant Customs Officer Chandrasiri in terms of Section 137 ofthe Customs Ordinance.
The petitioner had also sought a Writ of Prohibition restrainingthe 1st and 2nd respondents and their servants and agents fromtaking any further steps in pursuance of the order marked P5referred to above.
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The petitioner has admitted in paragraph 17 of his Petition thaton the 23rd of March 2001 he had taken currencies, namely, (1)150,000,000.00 Italian Lira, (2) 14,450 Sterling Pound, (3) 11,000Netherlands Guilder, (4) 17,900 Australian Dollars, (5) 21,500Swedish Kroner, 2000 Denmark Kroner and 2500 NorwegianKroner. In terms of the documents filed by the respondents it isclear .that there had been a violation of the Exchange ControlCircular 2R1 and 2R2 and X2 the affidavit of the 2nd respondent.Further position of the 2nd respondent was the possession of thiscurrency by the petitioner in this case was unlawful and as he couldnot claim lawful possession in terms of the Exchange Control Actthereby the foreign exchange was forfeited by operation ofSections 12 and 44 of the Customs Ordinance read with theExchange Control Act. In terms of Section 44 of the CustomsOrdinance any goods exported or taken out of the island contraryto certain specified prohibitions shall be forfeited and shall bedestroyed or disposed of as a Principal Collector of Customs maydirect.
Section 12 of the Customs Ordinance states that;
The goods enumerated in the table of prohibitions andrestrictions in Schedule B shall not be imported or brought into orexported or taken out of Sri Lanka save in accordance with the con-ditions expressed in the said Schedule.
Parliament may from time to time, by means of a resolutionduly passed at any public session, amend Schedule B by the addi-tion thereto of any goods other than those enumerated therein orby the omission therefrom of any goods enumerated therein or oth-erwise, and regulate the conditions subject to which the importationor bringing into or the exportation or taking out of Sri Lanka of anygoods enumerated in the said Schedule is prohibited or restricted.
Section 44 of the Customs Ordinance states that;
If any person exports or attempts to export or take out of SriLanka any goods enumerated in the table of prohibitions andrestrictions in Schedule B, in contravention of the prohibition's andrestrictions contained in such table in respect thereof, such goodsshall be forfeited, and shall be destroyed or disposed of as theDirector General may direct.
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Ishak v Laxman Perera, Director General of Customs and others
(Shiranee Tilakawardane. J. P/CA.)
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Therefore it is clear that the goods that were forfeited by opera-tion of law were as a consequence of an imperative term of the lawand it was not left to the decision or order to be made by anInquiring Officer.
Section 154 provides for the manner of instituting proceedingsor claiming such seized goods and this remedy is available to theowner for challenging the validity of the seizure and the forfeiture ofthe goods. Furthermore in terms of Section 154 of the CustomsOrdinance it is clear that the District Court has the jurisdiction tolook into this matter and a party who is aggrieved by the forfeiturecould bring an action to the District Court for adjudication upon themerits of seizure. Thus the aggrieved party could challenge boththe seizure and the forfeiture of the goods taken in terms of theseprovisions of the Customs Ordinance in the relevant District Courtof competent civil jurisdiction. This procedure that has been set outin terms of the Customs Ordinance appears to be on the basis thatsince the forfeiture was by the operation of law there was no adju-dication or an order to declare forfeiture to have taken place. Inother words by the implementation,of law there was an automaticforfeiture of the goods followed by the seizure in terms of theCustoms Ordinance. This decision has been clearly set out byGratian J. in the case of Palasamy Nadar v Lanktree <1).
In considering whether forfeiture in terms of Section 44 isamenable to the writ jurisdiction of this Court it has to be appreci-ated that such is not consequent to an order of forfeiture precededby inquiry by a Customs Officer who makes a "determination" or a"finding" as a prerequisite to the order, but in terms of the provi-sions under which these goods had been seized such was an orderfor forfeiture which was imperative in terms of the law. It is as asequel to this forfeiture by the operation of law that the goods areseized in terms of the Customs Ordinance. Therefore these doesnot appear to be an order that can be challenged in the Court ofAppeal by invoking its writ jurisdiction and accordingly this Courtfinds that such order is not one amenable to the writ jurisdiction ofthis Court and clearly therefore the only remedy available to theowner or aggrieved person/s would in terms of the CustomsOrdinance be by the institution of an action in the District Court andthe obtaining of interim relief if needed. Furthermore in terms of
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Section 154 of the Customs Ordinance the burden of proof in civiland criminal matters in proving importation is on the State.
In the case of the Attorney Genera v Lebbe Thamby<2) it hasbeen stated that:
"If any goods are seized for non-payment of duties or any othercause of forfeiture, and any question shall arise in any proceed-ings whether civil, criminal or otherwise, whether the duties havebeen paid for the same or whether the same have been /awful-ly imported, or lawfully laden or exported, the proof thereof shall 100lie on the owner or claimer of such goods or on the personagainst whom any contravention of this Ordinance is allegedand not on the Attorney General or the officer who seized orstopped such goods or on the prosecution".
In the case of Attorney General v W. Wimaladharma (3> it hasbeen held that once the State proves the fact of importation Section152 of the Customs Ordinance was the burden of proving lawfulimportation on the claimant and release the Attorney General ofsuch burden. In these circumstances the position urged by the peti-tioner that there would be an unfair burden placed upon him is not 110tenable in law.
Another matter that has been urged by the respondents in thiscase is that as a specific remedy has been set out in Section 154of the Customs Ordinance that this would exclude the invocation ofthe writ jurisdiction as an alternative remedy was available in law.
"Where there is an alternative procedure which will provide theapplicant with a satisfactory remedy the Courts will usually insist onan applicant exhausting that remedy before seeking judicial review.
In doing so the Court is coming to a discretionary decision.". "Wherethere is a choice of another separate process outside the Courts, a 120true question for the exercise of discretion exists. For the Court torequire the alternatvie procedure to be exhausted prior to resorting tojudicial review is in accord with judicial review being properly regard-ed as being a remedy of last resort. It is important that the processshould not be clogged with unnecessary cases, which are perfectlycapable of being dealt with in another tribunal. It can also be the sit-uation that Parliament, by establishing an alternative procedure, indi-cated either expressly or by implication-that it intends that procedure
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Ishak v Laxman Perera, Director General of Customs and others
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to be used. In exercising its discretion the Court will attach impor-tance to the indication of Parliament's intention".
Applying the provisions of Section 154 of the CustomsOrdinance it is clear that there is an existent remedy provided interms of the aforesaid section in the District Court of competent civiljurisdiction. This was followed in several cases: (Fernando vDharmasirW) (Gunasekera v WeerakoonS5^) (Rodrigo v TheMunicipal Council, Galled) and (Samarakoon v TikiribandaP')). Inother words where there was an alternative remedy that was ade-quate for the adjudication of the matter that was being challengedby the aggrieved party except under exceptional circumstances thisCourt would not invoke the writ jurisdiction of the Court. This is allthe more important in this case in the circumstances that the peti-tioner himself has claimed that he has already invoked the jurisdic-tion of the District Court of Colombo in case No. 27132/MR and thatsuch is on the identical facts that has been canvassed before thatCourt of competent civil jurisdiction.
In this context, the President's Counsel appearing for the peti-tioner has cited the case of Somasunderam Vanniasingham vForbes and Another and suggested that it represents a newapproach to the rule relating to alternative remedies in exercisingwrit jurisdiction.
The respondents submit that this case has no application to thepoint urged by them. In that case the Court held that there is no rulerequiring the exhaustion of administrative remedies. The point urgedby these respondents is that there is an alternative statutory remedyfor the petitioner before a Court of law and not the availability of anyadministrative remedy. In these circumstances this Court finds that asthere is an alternative, adequate remedy provided in Section 154 ofthe Customs Ordinance, and as the petitioner himself has alreadyinstituted action admittedly in the competent Court of civil jurisdiction,the Court would not exercise its discretion in favour of the issue of itswrit jurisdiction. In all the circumstances of this case, this applicationis dismissed with costs of Rs. 5000/-.
ABEYRATNE, J.I agree.
Application dismissed.
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