M. H. SEYED AHAMAD, Petitioner, and I. P. W. FERNANDO (Chief Assistant Preven

032-NLR-NLR-V-73-M.-H.-SEYED-AHAMAD-Petitioner-and-I.-P.-W.-FERNANDO-Chief-Assistant-Preven.pdf


Seyed Ahamad v. Fernando
139
1970
Present: Wijayatilake, J.M.H. SEYED AHAMAD, Petitioner, and I. P. W. FERNANDO(Chief Assistant Preventive Onicer, Customs), Respondent
S.C. 447/60—Application in Revision in J. M. C. Colombo, 40S60
Casio >■» Ordinance (Cap. 235)—Sections 43, 107 (J), 129, US, 152, 151—Criminalprosecution in respect oj goods seized—Burden of proof—Withdrawal of prosecu-tion—Discharge of accused—Proper order as to disposal of the goods seized—Evidence Ordinance, s. IOC.
IVhora a prosecution under section 146 of tho Customs Ordinance iswithdrawn by tho prosecuting officor oven before it is closed, and tho accusedis thereupon discharged, the Magistrate has no power to rofuso to return to the
140
WIJAYATILAKE, J.—Scycd A ha mad v. Fernanda
accused tho goods in respect of which tho prosecution was instituted. In sucha ease, tho refusal to return the goods to tho accusod cannot bo justified on tho-grotind that tho remedy of tho accused is under section 154 of tho CustomsOrdinance.
Obiter: In a criminal prosecution under tho Customs Ordinonco in rospc-ctof possession of unlawfully imported good9, section 152 imposes tho burden ontho accused person, if ho is claiming tho goods, t o oxplain at least how ho enraoto possess them. (In tho present case, however, tho Customs abandonedtho prosecution.)
Application' to revise an order of tho Joint Magistrate’s Court-.Colombo.
J. V. G. Nathaniels, for the accused-petitioner.
Ananda G. de Silva. Crown Counsel, for the complainant-respondent..
Cur. adv. vult..
January 17, 1970 Wijayatilake, J.—
This is an Application by the accused-petitioner for a revision of the-Order made by the Magistrate i;efusing to return to him the goods seizedby the Customs despite his discharge by the Magistrate, in a prosecutionunder the Customs Ordinance in respect of these goods. The accused-petitioner was charged in the Joint Magistrate’s Court of Colombo in thatho did on or about 4th October 19G8 within the limits of the Port ofColombo knowingly procure to be harboured restricted goods of the valueof Rs. 8.S96/- imported contrary to such restrictions in contravention ofSections 43,107 (1) and 129 of Customs Ordinance,Chapter 235 read withregulation 2 made under Section 2 of the Imports and Exports ControlAct, Chapter 236 as appearing in the Government Gazette No. 1347 of11.1.63, and that in terms of Section 129 of the Customs Ordinance a-forfeiture of Es. 26,628 was imposed on the accused and he has failed andneglected to pay the said sum and that he is thereby guilty of an offence-punishable under Section 146 of the Customs Ordinance. The goods inquestion included 10 parcels containing inter alia Dacca, Kashmir,.Awayar, and Saraswathy Sabatham sarees, 1 parcel containing NavyFleet, Naidu and Toyo Tokoy fountain pens ; and 1 Sony 9 transistorradio set made in Japan.
■When the case up for trial on 14.5.69, Mr G. K. Pillai the AssistantPreventive Officer, Customs admitted that prior to the Gazette notificationin January 1963 there was no restriction in regard to such goods. Hefurther stated that even after the restriction referred to such goods were ’sold by public auction by the Customs and any member of the public -could purchase and resell them. He could not say whether the goods inquestion had been bought at such an auction sale or whether these goodahad been imported to the Island after restriction. He only entertained.
WIJAYATlliAKE, J.—Scyrd Ahamad v. Fernando
I4t
a suspicion. After two other Customs Officers had given evidence theChief Assistant Preventive Officer who was in charge of the prosecutionhad indicated to the Magistrate that he is not proceeding with the case.Accordingly, the accused' was discharged. Thereupon, the learnedCounsel for the petitioner had moved that the goods P2 to P13 which hadbeen seized be returned to him. The learned Magistrate refused thisapplication on the ground that the goods are no longer the property ofthe accused as they have been rightly or wrongly forfeited to the State underthe provisions of the Customs Ordinance ; and that the accused has Hisremedy to prosecute his claim under Section 154 of the Customs Ordinancewhich provides that the owner or claimant shall within one month fromthe datcofseizure give notice in writing of such claim and further furnishsecurity to prosecute such claim before the Court having jurisdictionto entertain the same. This would be in the nature of a civil claim:Learned Crown Counsel has made a strenuous effort to justify the orderof the learned Magistrate and he has been of considerable assistance tome in referring to a whole series of cases touching on certain aspects ofthe question in issue.— Vide Somasunderam v. Customs1; Sangarapillai v.Customsi 2; A. G. v. Febbe Thanby3; A. G. v. Gnanapragasam4; A. G. v.Sathasiiam 5 ; Perera v. M. C. Negombo6; Palasamy Nadar v. Lanklree7;Ilenderick Appuhamy v. John Appuhamy8; Omer v. Caspersz 9; A. G. v.Kadirgamar10; Tennekoon v. Customs11 :Jayawardene v. Silva12
(Divisional Bench 61 N. L. R. 232 overruled, 65 N. L. R. 494 partlyoverruled).
Mr. Nathaniels, learned Counsel for the pet itioner, submits that Section43 is of no avail to the prosecution as the seizure was admittedly wrongfuland therefore illegal and void in law. Section 154 would come intooperation only in respect of goods which arc liable to seizure and forfeitureand/or goods which are seized as forfeited by operation of law. In theinstant case Mr. S. Selvaratnam. the Chief Assistant Preventive Officer,categorically indicated to Court that he could not maintain the prosecu-tion and the accused was accordingly discharged. The prosecution wasclearly based on a seizure and forfeiture which now the Customs haveacknowledged to be wrongful and therefore in effect illegal and void inlaw. In my opinion there is much merit in the submissions of learnedCounsel for the petitioner ; and as Wijeycwardene J. in Velupillai v. TheCollector of Customs13 observed that although the Magistrate has no juris-diction to make an Order under section 413 of the Criminal ProcedureCode, under the circumstances the only proper course to adopt would beto return the goods to the person in whose possession they were. Fromevery point of view it would be contrary to the principles of natural
i (1042) 45 X.L. It.43.■(1940)51 X. L. It.520.
(1944) 45 A*.L. R.443.*(19C6)CO X. L. It.20, 32, 33.
(195S) 61 X.L. R.254.♦(1963)65 X. L. R.494.
‘ (1965) CS X.L. Jt.49.»»(19C5)DS X. L. R.352.
(1966) 60 X.L. It.110."(1050)61 X. L. It.232.
(196S) IS C. L. II*. 2S.(1060) 12 X. L. R. 25.
” (1043) 45 X. L. R. 03.
142
V3JAYATII»AXE, J.—Seycd Ahamad v. Fernando
justice for the Customs to declare before the Magistrate that they areunable to prove that any offence has been committed in respect of thesegoods and in the same breath refuse to return such goods to the accused.I think the cases relied on by learned Crown counsel can be distinguishedas in the instant case the Customs hare in effect admitted the seizure to beillegal. As to whether the admission by the prosecuting officer at thatstage was premature and ill-advised is another matter.
The question does arise why the Customs abandoned the prosecutioneven before it was closed in the light of the strong circumstantial evidenceled. The productions tend to show that most of them have been importedto this country. The quantity and the stealthy manner in which theywere found stacked too are strong indications that the accused wasconscious of an irregular dealing. The circumstantial evidence wouldappear to have established a strongprima facie case against the accused.As for the date of importation whether it was before or after the Gazettenotification in 1963 it would be well nigh impossible for the Crown toestablish this fact. Crown Counsel submits that this being a criminalproceeding the onus in regard to every ingredient of the offence is on theCrown. In this situation there is very little chance of any accused beingconvicted. Are these prosecutions therefore merely a tlireat on personsaccused who are not fully conversant with their legal rights with a view toextracting the fines imposed ? One can conceive of opportunities forbribery and corruption in this context. In my view if the prosecution hasno hope whatever of establishing the charge it would be highly improperto make use of Court procedure with the object of collecting the penalty—which is three times the value of the goods—by imposing a threat of aconviction with its consequent publicity. To say the least this would beto encourage these Customs officials to interfere with the liberty of thesubject in a manner which would jettison the Rule of Law, shock thepublic conscience and ultimately shake their confidence in the adminis-tration of justice.
As I see it, the circumstantial evidence in this case was sufficientlyadequate to invoke an explanation from the accused as to how he cameby this large quantity of this kind of goods. This is a fact especiallywithin his knowledge and the Crown not being in a position to prove thedate of importation of these goods to the Island I think there was a burdenon the accused under section 106 of the Evidence Odinance to explainhow he came to possess these goods in such suspicious circumstances.See Arendtz v. .Wilfred Peiris1 which upheld the principle that whenpretty stringent proof of circumstances is produced tending to support acharge against the accused, and it is evident that the accused is so situatedthat he could offer an explanation consistent with his innocence and hefails to offer such proof the natural conclusion is that the evidence if pro-duced would sustain the charge instead of rebutting it. I am unable toagree with the submission that section 106 contemplates facts which intheir nature are such as to be within the knowledge of the accused and
» (193S) 10 O. L. W. 121.
WIJAYATrLAKE, J.—Scyed Ahamad r. Fernando
143
nobody else. The Illustrations to this section do not support this narrow-interpretation. Furthermore section 152 of the Customs Ordinanceprovides that the onus probandi shall be on the owner or claimer of thegoods. Learned Crown Counsel has drawn my attention to the judgmentof Howard C. J. in the case of Somasunderam v. Asst. Collector of Customs1where it was held that this section does not impose on an accused personthe burden of proving his innocence. It applies to a case where goodshave been seized for non-payment of duties and not to a criminal case.Section 152 provides that “ if any goods shall be seized for non-paymentof duties or any other case of forfeiture and any dispute shall arise whetherthe duties have been paid for the same, or whether the same have beenlawfully imported, or lawfully laden or exported, the proof thereof shallbe on the owner or claimer of such goods, anrl not on the Attorney-General or the officer who shall seize or stop the same ”. It may be notedthat the sections immediately prior to this section pertain to rules dealingwith the proof of criminal offences. With great respect I am unable toadopt the interpretation of Howard C.J. that this section does notapply to criminal prosecutions under the Customs Ordinance. Thissection clearly rests the onus on the owner or claimer of the goods whenany dispute shall arise whether the duties have been paid for the same, orwhether thesame have been lawf ully imported, or lawfully laden or exported.In the instant case, I should think if the prosecuting officer did notabandon his case prematurely the onus would have shifted to the accusedunder this section. As I have already observed the kind of goods, thestrong primu facie evidence that most of it has been imported, the largequantity and attempt to keep them in concealment invoke the applicationof Section 152. I would not go so far as to say that this section imposesa burden on the accused to prove his innocence but if he is claiming themhe has to explain at least how he came to possess them although hemay not be in a position to show that they are not imported and/orrestricted goods. Be that as it may now that the Magistrate has dis-charged the accused on the application of the Customs the instant issueis in regard to the disposal of these goods. As I have indicated, in conse-quence of the discharge of the Accused on the application of the prose-cuting officer, the resulting position is that these goods are not liable toseizure and forfeiture and that there was no forfeiture by operation of law.In the circumstances it is not incumbent upon the accused to pursue aclaim under section 154. Learned Crown Counsel has stressed the princi-ple set out in Wilkinson v. Barking Corporation8 which has been referredto by Sansoni C.J. in Hendrick Appuhamy v. John Appuhamy3—“Itis undoubtedly good law that where a statute creates a right and, in plainlanguage, gives a specific remedy or appoints a specific tribunal for itsenforcement, a party seeking to enforce the right must resort to thatremedy or that tribunal, and not to others ”. See also Perera v. M.C.Negombo:* He accordingly submits that section 154 of the CustomsOrdinance provides the remedy. But, as I have already observed, thiswould be to ignore the proceedings in the Magistrate’s Court.
» (1942) 45 X. L. li. 43..* (1066) 69 X. L. R. 30 at p. 32.
* (104S) t K. B. 72/.• (1966J 7S C. L. W. 28.
144WIJAYATILAKE, J.—Scycd A he mail r. Fernanda
Before I conclude I am constrained to observe that it would be in theinterests of the public and the ofiicers in the Customs to revise and amendthe Customs Ordinance with a view to clarifying matters controversialand closing the easy avenues of temptation, it now affords. As it is,even a dona fide withdrawal of a plaint (perhaps as in the instant casp)can be misinterpreted.
Acting in revision I quash the Order of the learned Magistrate refusingto return the goods to the accused and I direct that these goods berestored to the accused forthwith. I award the petitioner Rs. 150 asthe costs of this Application.
Order quashed.