Sri Lanka Law Reports
(1982) 2 S L R.
MOHAMED SHUMS AND ANOTHER
WANASUNDERA, J., VICTOR PERERA, J„ AND COLIN-THOME, J.
C. – COLOMBO 2796/ZJULY 7, 1982.
Customs Ordinance,, sections 44, 57, 125' and 13.0 – Seizure of goods in exportersstores – Goods marked ■>.£ '. isc'led for export – What constitutes an attempt.
Mohamed Shum and Another v. Attorney-General (Victor 1‘ercra. J. I
The plaintiffs who are exporters of Ceylon Produce obtained a licence rrom theController of Exports to export 50 long tons of mixed sesame seed.
The plaintiffs had informed the Customs authorities in the specification formthat they intended to. export the goods in 800 bags carrying the full weight of112,000 lbs. Therefore each of the 800 bags had to carry 140 lbs. of sesame seed.
On 16.2.73 the plaintiffs despatched to the Wharf 400 bags of sesame seed whichwere put on board a vessel.
On 19.2.73 the plaintiffs despatched 160 bags of sesame seed. At the gates itwas discovered by Customs Officers that the bags contained 168 lbs. each andnot 140 lbs. The bags already on board were also found to contain 168 lbs.each. Thus as a result there were in the Port 560 bags carrying 94080 lbs. ofsesame seed. The Customs Officers suspecting that the plaintiffs were planningto export more than the permitted amount raided the stores' of the plaintiff andtook into’custody 110 bags of sesame seed marked 168 lbs. and labelled “NoorSingapore". Taking these bags into account the total weight of mixed sesameseed was 112,560 lbs. Consequent to this seizure the plaintiff was sent a letterby the Principal Collector of Custom's on 21.2.73 requesting him "to show causewhy he should not be dealt with for being concerned in attempting to export
or take out of Sri Lanka restricted goods • in contravention of the Customs
Ordinance read with the Exchange Control Act.”
After the inquiry the plaintiff was fined Rs. 41,463.29 and the goods wereforfeited. On appeal to the Principal Collector the forfeiture was mitigated andfine the reduced. The District Court and Court of Appeal held against the• plaintiff. The plaintiff appealed to the Supreme Court.
Having regard to all the circumstances of the case there was a serious doubtwhether it would be desirable and safe to regard the facts as constituting an attempt.
Case referred to:
(1) Attorney-General v. Nagamany 40 C.L.W. 86.
APPEAL from judgment of the Court of Appeal.
S.C. Crossette Thambiah with K. Thevarajah for the plaintiffs-appellants.
Suri Ratnapala, State Counsel, for the defendant-respondent.
August 9, 1982.
Cur. adv. cult.
VICTOR PERERA, J.
This is an appeal from the judgment of the Court of Appeal dated12th May. 1981 dismissing an appeal from the judgment and decreeentered by the District Court of Colombo. The plaintiffs-appellantshad obtained a licence to export 50 long tons of mixed sesame seed
578Sri Lanka Law Reports(1982) 2 S.L.R.
from the Controller of Imports and Exports and they had taken 560bags containing 94080 lbs. to the Wharf for shipment. In February1973 the Principal Collector of Customs had made order forfeitingthe said goods as well as a further 110 bags containing 18480 lbs.which had been in the Stores of the plaintiffs-appellants and also asum of Rs. 25,000/-. The plaintiffs-appellants having furnished thenecessary security filed this action on 18th April 1973 against theAttorney-General for a declaration that they were entitled to thesaid goods and to have the forfeiture annulled. The District Judgeby his judgment dated 30th October 1975 held that the plaintiffs-appellants had attempted to export 560 lbs, in excess of the 50 longtons authorised and dismissed the plaintiffs-appellants’ action withcosts. The Court of Appeal holding that the plaintiffs-appellants hadnot given a satisfactory explanation to the Collector of Customs interms of Section 57 of the Customs Ordinance, dismissed the appealwith costs.
Before dealing with the 'matters that have been urged before usat the hearing of this appeal, it will be necessary to set out the factswhich had admittedly been established in this case in order to decidewhether sections 44, 57 artd 130 of the Customs Ordinance (Chap.235)have been correctly considered and applied.
The plaintiffs-appellants were exporters of Ceylon Produce carryingon business under the name, style and firm of “Westway Trades andIndustries”. They had contracted with Messrs Nom'anbhoy & Sons,Singapore, to export 50 long tons or 112000 lbs. of white and blackmixed sesame seed and had obtained a letter of credit dated 5.1.73for the full value thereof (PI). Thereafter they made an applicationfor a licence, in terms of the Imports and Exports (Control) Act No.1 of 1969 on 12.3.73 (P6) and obtained the same. In that application,the goods were correctly described as mixed white and black sesameseed, the quantity was stated to be 50 long tons and the F.O.B.value was stated to be Rs.82,515/80. The column 12 in regard tothe number of packages was left blank. In the form P2 column 16which had to be completed by the Exporter before the shipment,the number of packages was stated to be 800 bags. Column 17 inP2 had to be completed by the Customs Officer after shipment. Thiscolumn has been left incomplete. The Export Entry document P3 isdated 15.2.73. in it had been entered the name of the Vessel inwhich sesame seed were to be.exported as the ‘Maidive Exporters’,the description of goods is given as 800 bags of mixed sesame seed,stated to be duty free and total quantity is given as 50 long tons or112,000 lbs.
•VC' Mohamed Shum anil Another v. Attorney-General (Victor Perera. J.579
in the Specification Form dated 15.2.73 (P3) the plaintiffs-appellants had informed the Principal Collector of Customs that theyintended to export the goods in 800 bags of seed for the, full weightof 112,000 lbs. and for the. value of ..Rs.. 82515/80.. These twodocuments, the Export Entry Form and the Specification Form hadbeen filled- up on 15.2.73 before the goods for. export had beenactually brought into the Wharf. Therefore it is clear that theappellants had intended to have the full consignment in 800 bagsand in that event each bag if filled equally would have-contained140 lbs. In point of fact it was only on the 16.2.73 thaP theplaintiffs-appellants had despatched 400 bags in five lorries supportedby Cart Chits P8 – PI 2 to the Wharf. These chits have been signedand sealed by the Customs. These bags had been permitted to beput on board the Vessel. On 19.2.73 the plaintiffs-appellants haddespatched 160 bags in two lorries supported by Cart Chits PI 3 -P18 also to the Wharf. On 19.2.73 a Customs Officer had examinedthe bags which were being transported to the Wharf on'that day atthe gate and he had noticed that the nett weight of each bag wasmarked 168 lbs. The bags on board the ship too were examinedthereafter and these bags too had each marked 168 lbs. The plain-tiffs-appellants .had so far sent only 560 bags,, but the total weighthad not exceeded 50 long tons or .112,000 lbs, it was actually 94080 lbs.
Acting on that basis that each bag should contain 140 lbs, evenbefore the rest of the consignment sufficient to complete the 112,000lbs was brought into the Wharf or even attempted to be broughtin, the Customs Officers seized the bags on board and in the Wharf.They then proceeded to the Stores of the plaintiffs-appellants at OldMoOr Street, Colombo, which it was conceded were quite a distanceaway from the Customs Warehouse. The witness A. K. Nagam, Asst.Preventive Officer who gave evidence for the defendant-respondentstated that he went to the plaintiffs-appellants’ Stores at 7.15 p.m.on 19.2.73 for two reasons, one to see if the- 1st plaintiff-appellant was there and secondly to see if there were bags withsesame seed there. As the place was closed He?'pl£ifcecf!S guard andwent back. He returned at 8 a.m.‘otf the’f&llbMng dhy with twoother officers. But before he went to the’Stores he went to meetthe 1st plaintiff-appellant at his residence at Stace Road, Colombo,and accompanied the 1st plaintiff-appellant to the Stores at Old MoorStreet, Colombo. He found a whole heap of sesame seed on theground and there were several bags containing sesame seed, actually161 bags in all, stacked on some planks one over the other. Of the
Sri Lanka Law Reports
(1982) 2 S L R.
161 bags, 110 bags were marked 168 lbs and jabelled "Noor Singapore”and the 51 bags contained 144 lbs white sesame seed but had notbeen labelled. All the 161 bags were removed to the Customs Officeand thereafter 51 bags containing white sesame seed were returnedas they contained no label. Thereafter inquiries proceeded in regardto an alleged violation of the conditions of the permit as each ofthe 560 bags brought into the Wharf by the plaintiffs-appellants andthe 110 bags brought into the Wharf by the Customs Officers contained168#lbs making a total of 112,560 lbs, 560 lbs more than the amountallowed to be exported.
On 21.2.73 the Principal Collector of Customs sent a letter (P19)to the plaintiffs-appellants in the following terms:-
. ‘‘You are requested to show cause as to why you shouldnot be dealt with for being concerned in attempting to exportor take out of Sri Lanka restricted goods to wit, Tons8-7-2-00 (approximately) of sesame seed valued at Rs. 13,821/43cts. in contravention of Sections 44, 57, 125 and 130 of theCustoms Ordinance (Chap.235.) read with Exchange Control. Act.”
An inquiry was held on the 21st and 22nd February, 1973, andon 24.2.73 the letter P20 was sent to the plaintiffs-appellants as follows:-
“ Attempted export of 670 bagssesame seed ex.”Maidive Exporters”
Reference the. inquiry held by me on the 21st and 22nd cffFebruary 1973, in the abovementioned case, I have to informyou that the following, viz.
670 bags sesame seed,
Lorry No.CY 7211,
Lorry No.22 Sri 493
are declared forfeit in terms of Sections 44, 57 and 125 ofthe Customs Ordinance, Chap.235.
I also elect., that you further forfeit a sum of Rupees FortyOne Thousand Four Hundred and Sixty Four and CentsTwenty Nine (Rs.41,464/29.) being treble the value of theexcess quantity (viz.Tons 8-7-2-00 approximately) of sesameseed in terms of section 130 of the Customs Ordinance,Chap.235.
You are requested to remit this sum within two weeks fromthe date rtr.rot of this letter.”
■'f Mohamed Shum and Another r. Attorney-General (Victor I’erera. J.)581
The plaintiffs-appellants by a letter dated 27th February 1973 (P21)made representations against this Order to the Principal Collector ofCustoms in which they stated that “they were at all times ready andwilling to make the necessary corrections in the Bill of Entry". Inresponse to their appeal they received a letter dated 15.3.73 that theforfeiture of the lorries was mitigated to a payment of Rs. 1000/-for each lorry and the sum of Rs.41,464/29 was mitigated to a sumof Rs. 25,000/-.•
According to the proved facts on 19.2.73 the stage contemplatedin section 57 of the Customs. Ordinance had not been reached, whenthe Customs Officers sought to initiate action against theplaintiffs-appellants. On a careful analysis of the provisions of section57, there is a chain of events following one after another. A personexporting goods shall deliver a Bill of Entry of such goods on aspecified form giving all the necessary particulars required therein tothe Collector of Customs. If such a Bill is not delivered, the exporteris liable to a penalty of Rs;> 50/-. After the payment of any dues orduties^.the exporter shall deliver two or more copies of such Bill.The Bill of IJLntry shall be signed by the Collector of Customs or theperson authorised by him to do so.
It is only after the Bill is so signed that it operates as a warrantto the proper officer for the examination and delivery of such goodsfor shipment. If the goods do not agree with the particulars in theBill of Entry the Collector of Customs could then call for anexplanation. In the absence of an explanation to the satisfaction ofthe Collector of Customs, the goods shall be forfeited under section57. Section 58 provides that the Collector of Customs on an applicationmade to him, could permit the exportation of the goods prior to thepresentation of the Bill of Entry without affecting the penalties theexporter would have become liable to for any misdescription orundervaluation in the application.. The mandate for the examinationand delivery of the goods obviously could operate only after thegoods are brought into the Wharf by the exporter on his own andbefore the shipment.
In the instant case the Bill of Entry (P3) dated 15.2.73 was preparedin anticipation of the packaging and transport to the Wharf. A partof the consignment of goods was taken to the Wharf on the 15thFebruary 1973 and a further consignment was taken on the 19thFebruary 1973. But before the plaintiffs-appellants attempted to door did anything further to bring to the Wharf any further goods
Sri Lanka Law Reports
(1982) 2 S L R.
from their stores if they had intended to have these too exportedin this Vessel the Customs Officers transported and brought into theWharf 161 bags. This latter exercise was not a voluntary act of theplaintiffs-appellants. It is therefore clear the plaintiffs-appellants hadnot attempted even to transport the 161 bags or additional 110 bagsseized even if they had planned or intended to have them includedin• that, consignment for export. To my mind the Customs • Officersin their enthusiasm had rushed to procure whatever sesame seedsthat, were in bags in the plaintiffs-appellants’ stores on suspicionbefore the plaintiffs-appellants had time to act in. any particular waythey may have contemplated. Clearly this actjofl.. of,.the CustomsOfficers was not warranted by section 57 of the ^st,Ojp^i;Qrdinanceor even . if warranted was premature and no ijnaputatiqp .jco^ld bemade of a guilty intention on the part of the plaintifj^ap^llants.
The Attorney-General also relied on section 44~of 'the CustomsOrdinance which reads as follows:.=… .-./j rw …. … in.■
“If any person exports or attempts to Export or take outof Ceylon any goods enumerated in the table of prohibitionsand restrictions in the Schedule B, in contravention of theprohibitions and restrictions contained in such table inrespect thereof, such goods shall be forfeited and shall bedestroyed' or disposed of as the Principal Collector ofCustoms'may direct’.1”''* ’’
' This section,.clearly deals with a person who exports or attempts..to, .export goods the exportation of which, are prohibited or are.,restricted. The sesame seeds do not. come within the exports prohibited. in Schedule B but would come within the terms of-goods theexportation of which are restricted in that a licence had to be obtainedfrom the Controller, of .Impo,rts and Exports. The word ‘export’ hasbeen held to mean ‘carried out of the Port’ (in the case of AttorneyGeneral v. Nagamany (i) ). An ‘attempt to export’ must thereforealso piean an attempt , to take the goods out of the Port. In thiscase there has been no such attempt at least in the case of . the 110bags which were discovered stacked away in the plaintiffs-appellants’Stores and which were not even in the process of being transportedto the Port. As remarked by Gratiaen, J. in the said-case, “theCustoms Official is concerned on such occasion only with the factof exportation, and he need not seek tc> probe the ddrk and mysteriousworkings of a smuggler’s mind”. It is Relevant to note that in theInidoits and Exports (Control) Act, Cfiap.236, which was enacted
SC Mohamed Shum and Another v. Attorney-General (Victor Perera. J.)583
to be read and construed with the Customs Ordinance (Section 5)the word ‘exportation’ was defined as follows:
“ ‘exportation’ with its grammatical variations and cognateexpressions, means the carrying and taking out of Ceylonor causing, to be carried or taken out of Ceylon, whetherby sea or by air.”
As regards whit is. an ‘attempt', the courts have not yet succeededin formulating an abstract test that is entirely satisfactory aiid'vvhichcould distinguish with precision a preparation from an attempt. Theprinciples laid down in the older cases are being questioned in themore recent cases and it is still early to say which of the manytheories referred to in these judgments would ultimately prevail.Coming back to the instant case, the Customs authorities, upon asearch of the plaintiffs-appellants’ private store, discovered 110 bagsof mixed sesame seed bearing the export marks. 61 bags of whitesesame seed bearing no marks and a large quantity of sesame seedin a heap. State Counsel stated categorically that he was making nosuggestion that apart from the technical violation involved (an excessof 560 lbs in a shipment of 112,00(7 lbs) there was any devious planto effect some large scale fraud or deception. The effect of theplaintiffs admission to which undue weight appears to have beengiven, was that the 110 bags too would have been despatched in thenormal course. As to whether the matter stood at the stage of apreparation or had ripened into the stage of attempt is not an easyquestion to answer. This is undoubtedly a marginal case. However,having regard to all the circumstances, balancing both the rights ofthe citizen and. the rights of the State, I 'entertain a serious doubtwhether it would be desirable and safe to regard the facts of thisCase as constituting an attempt.
1 accordingly set aside the judgment of the Court of Appeal andof the District Court and direct that judgment be entered for theplaintiffs-appellants without costs.
WANASUNDERA, J. — I agree.
COLIN-THOMfi, J. — I agree.
MOHAMED SHUMS AND ANOTHER v. ATTORNEY-GENERAL