057-NLR-NLR-V-67-MERCANTILE-CREDIT-LTD.-Petitoner-and-B.-L.-W.-FERNANDO-Sub-Inspector-of-Polic.pdf
1965Present: A lies, J.MERCANTILE CREDIT LTD., Petitioner, and B. L. W. FERNANDO(Sub-Inspector of Police) and 2 others, Respondents
S. C. 105/65—Application in Revision in M. C. Anuradhapura,
34953
Transport of illicit immigrants—Vehicle used for that purpose—Duty of Magistrateto make order for its forfeiture—Immigrants and Emigrants (Amendment)Act, No. 68 of 1961. s. 47B (4).
Where a lorry has been proved to have been used for the purpose of transpor-ting illicit immigrants into Ceylon or in Ceylon, it is the duty of the Magistrateunder section 47B (4) of the Immigrants and Emigrants (Amendment) Act,No. 68 of 1961, to make order for the forfeiture of the lorry. In such a case,the true owner of the lorry is not entitled to ask for its restoration to himon the ground that he was completely unaware that the lorry was beingused for cm unlawful purpose.
A-PPLICATION to revise an order of the Magistrate’s Court,Annradhapura.
Izzadeen Mokamed, with S. C. Crossette-Thambiah, for the petitioner.
D. K. D. de S. Abhayanayalca, Crown Counsel, for the Attorney-General.
Cur. adv. vuti.
July 22, 1965. Alles, J.—
Tl»e petitioner, a limited liability Company, having its registeredoffice in Colombo, was the absolute owner of lorry bearing registerednumber 22 Sri 1237. By a hire-purchase agreement entered into withMra. Abdul Hameed Umrmi Rasida of 237, Walahapitiya Road,Nattandiya, the petitioner hired this lorry to the above-named person oncertain terms and conditions. On 24.5.63, the 1st respondent to tinsapplication filed proceedings in the Magistrate’s Court of Anuradhapuracharging the 2nd and 3rd respondents above named with having transported40 persons in the lorry in question knowing that such persons hadentered Ceylon or remained in Ceylon in contravention of the Immigrantsand Emigrants Act. The 2nd and 3rd respondents were the driver andthe cleaner of the lorry respectively at the time the offence was detectedby the authorities. After trial, they were convicted by the Magistrate;in appeal the conviction of the driver was affirmed but the convictionof the cleaner was set aside and he was acquitted. It is not disputedthat the lorry was used for the purpose of transporting illicit immigrantsin Ceylon. After the conviction of the two respondents in the Magistrate’sCourt the prosecuting authorities made an application under section47B (4) of the Immigrants and Emigrants (Amendment) Act, No. 68 of1961, for an order of forfeiture of the lorry and the Magistrate made orderaccordingly on the ground that in view of the c clear and unambiguous ’language of the section, he had no option but to forfeit the lorry. Thepresent application in revision is from the Magistrate’s order. It wasurged on behalf of the petitioner that the owners were completely unawarethat their lorry was being used for an unlawful purpose and in theabsence of guilty knowledge on their part, it could not have been theintention of the legislature to deprive the owners of the lorry of theirownership.
Section 47B (4) of the Immigrants and Emigrants (Amendment) Act,No.68 of 1961, provides, inter alia, that ‘where any vehicle, vesselor other means of transport or equipment or accessories, produced beforeor made available for inspection by a Magistrate’s Court, ….is proved to have been used in, or in connection with, the commission ofan offence * of bringing into Ceylon persons whose entry into the Islandwould be in contravention of any of the provisions of the Act or of anyOrder or any regulation made thereunder, *Such Court shall make orderfor the forfeiture to Her Majesty or for the destruction of such vehicle,vessel or other means of transport or equipment or accessories. ’ Thesection provides that whenever a conveyance has been proved to thesatisfaction of a court to have been used for the purpose of transportiqgillicit immigrants into Ceylon or in Ceylon the Court shall order the for-feiture of such a conveyance. I agree with the Magistrate that in theplain terms of the seetion, as soon as the fact of transport is proved,ipso facto, the means of transport is forfeited.
Although the language of section 47B (4) of the Act has not beenconsidered by this Court previously, the point raised by Counsel inthe present application is not without precedent.
In the leading case of De Keyser v. British Railway Traffic & ElectricGo. Ltd.l, the Court had occasion to consider the language ofsection 202 of the Customs Consolidation Act of 187b which was in thefollowing terms :
“All conveyances…. made use of in the importation,
landing, removal or conveyance of any goods liable to forfeiture,shall be forfeited. ”
A strong Bench, (Lord Hewart, C.J., Humphreys and Singleton, JJ.),was unanimously of the view that the words of the section left no optionwith the Court to forfeit the motor tank wagon which was used to conveygoods liable to forfeiture under the Customs Act, even though the ownerswere completely ignorant of the purpose for which their vehicle wasbeing used. Lord Hewart observed at p. 230 that—
“ …. once it is established that the conveyance does come
within that class, this undoubtedly rigorous statute gives the claimantno opportunity of asking the Court to take into consideration mitigatingcircumstances with the effect of removing the conveyance from thatclass, ”
and that the circumstance that the owners did not know of the wrongfuluse for which the lorry was being employed was wholly irrelevant, anddid not affect the purpose for which the lorry was being used.Singleton, J. at p. 234 said that—
“ …. knowledge on the part of the owner of the vehicle
is irrelevant in such a proceeding as this and the mere use of the vehiclefor the unlawful purpose indicated by s. 202 of the Act of 1876 infersa statutory forfeiture of the vehicle irrespective of the knowledgeor consent of the owner thereof. ”
InDe Keyset's case, it was argued by Counsel for the owners of thevehicle that, the mandatory words found in section 202 were mitigatedby the words used in the connected section 226 which dealt with the powers
1 (1936) 1 K. B. 224.
of the justice at the stage of the condemnation of the forfeited goods.Section 226 provided, inter alia, that ‘ on proof that the goods are liableto forfeiture underthe Customs Act, (the justice) may condemn the same. ’It was suggested that a discretion was thereby vested in the Justices todeal with the forfeited goods—a submission which however did notfind favour with the Court. Under the provisions of section 47B (4)of the present Act, no such argument is even possible because the sectionstands in isolation and is no way connected with any other section ofthe Act.
De Keyset's case has been cited with approval in Arumugaperumal v.The Attorney-General 1 and The Attorney-Generalv. Nagamany2, wherethe Supreme Court had occasion to consider the provisions of section128A of the Customs Ordinance which reads as follows :
“ Any ship not exceeding 250 tons tonnage knowingly used in theimportation or exportation of any goods prohibited of import or export,or in the importation, exportation or conveyance or in the attemptedimportation, exportation or conveyance, of any goods with intentto defraud the revenue, shall be forfeited. ”
This section provided for the forfeiture of a vesselwhich had been know-ingly used for the importation or exportation of prohibited goods underthe Customs Ordinance. Howard, C.J. in the former case held that* the forfeiture was valid irrespective of the guilty knowledge of the owner.’This decision was followed with approval by Gratiaen, J, in the lattercase. Commenting on the provisions of section 128A of the CustomsOrdinance, Gratiaen, J. in The Attorney-General v. Nagamany said:
“ The provisions of Section 128A of the Customs Ordinance areno doubt rigorous in their operation. This circumstance does nothowever justify a Court in refusing to give effect to the clear intentionof the Legislature where it is proved that a vessel has been wilfullyused by those in charge of her for the conveyance of contraband.As Lord Hewart said in De Keyset v. Harris, in dealing with a similarprovision of law, there is ‘ no opportunity for mercy ’ in applyingthe section. …”
These observations apply with equal force to the present case.
In view of the clear language of the section, supported as it is by theauthority of this Court under analogous provisions of the law, I am of theview that the Magistrate was right in forfeiting the lorry. The applicationis dismissed.
Application dismissed.