012-NLR-NLR-V-73-N.-JINADASA-Appellant-and-FORESHORE-POLICE-Respondent.pdf
TENNEKOON, J.—Jinadaaa v. Foreshore Police
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Present: Tennekoon, J.
N.JINADASA, Appellant, and FORESHORE POLICE, RespondentS. C. 996169—J. M. C. Colombo, 40930
Charge of handling goods found concealed or unclaimed in Customs premises—Burden
ofproof as to “ customs premises ”—Customs Ordinance {Cap. 235), ss. 101 {]),
101 (2). Ill, 148—Regulation 2C A (J).
Regulation 20 A (3) made by thoMini9tor undor section 101 (1) of the CustomsOrdinance reads as follows :—
** No person shall handlo any goods found concealed or unclaimed in theCustoms premises or found adrift or washed ashore within tho water areaforming part of the customs premises without first- informing a customs orpolico officer on duty.”
Held, that where a person is charged under section 101(1) of tho CustomsOrdinance for a broach of regulation 26 A (3), ono of tho most importantingredionts that the prosecution roust establish is that tho act- of handlingwas done in relation to certain goods in the Customs premises. Section 143 oftho Customs Ordinance cannot bo called in aid by tho prosecution in ordor todischarge its burden of proving that the placo whoro tho incident in questionoccurred was within the Customs premises as defined by the Principal Collectorof Customs.
Joseph v. Inspector of Police {72 A*. L. R. 357) not followed.
Appeal
from a judgment of the Joint Magistrate’s Court, Colombo.
A.O. de Silva, with Miss S. Scnaralne, for the accused-appellant.
Tivanka Wickremasinghe, Crown Counsel, for tho Attomej'-General.
Cur. adv. vult.
March 25, 1970. Tennekoon, J.—
Subsection (1) of section 101 of the Customs Ordinance empowers theMinister to make regulations for the purpose (inter alia) of regulating theconduct of persons within the customs premises ; tho section goes on toprovide—
“ Any person who shall disobey the same shall be guilty of anoffence and shall be liable …. on summary trial and convictionby a Magistrate to a fine not exceeding Rs. 50 or to imprisonment ofeither description for a term not exceeding three months or to bothsuch fine and imprisonment.”
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TENXEKOON', J.—Jinadaaa v. Foreshore Police
In subsection (2) of section 101 the following provision is made—
“In this section andinany regulation thereunder ‘ customs premises ’means the customs premises as defined from time to timo by thePrincipal Collector of Customs by notification in the Gazette.”
Among the regulations made by the Minister under section 101 (1) isregulation 26A (3) which reads as follows :—
“ No person shall handle any goods found concealed or unclaimed inthe customs premises or found adrift or washed ashore within thewater area forming part of the customs premises without first informinga customs or police officer on duty.”
It is quite plain that this regulation creates one of those statutoryoffences which are sometimes also referred to as “ regulatory offences ” ;it prohibits certain conduct in a specified area irrespective of the intentionor knowledge accompanying the act. It brings into existence an offencein which there is an actus reus but no metis tea. While the act itself mustbe voluntarily done, it is unnecessary that it bo accompanied by any dis-honest intention, or guilty knowledge. Thus even the innocent activityof handling goods which have been concealed (even by another) or areunclaimed or are adrift or washed ashore is made punishable only if suchgoods are so found concealed, unclaimed, adrift or washed ashore in thecustoms premises. Accordingly in a prosecution under section 101 (1) ofthe Customs Ordinance for a breach of regulation 26A (3), one of themost important ingredients that the prosecution must establish is thatthe act of handling was done in relation to certain goods in the customspremises.
In the exercise of powers under section 101(2), the Principal Collectorhas defined “customs premises” ; this definition is reproduced at page979 in Volume IV of Subsidiary Legislation of Ceylon 1956.
Tn the present case the accused is charged as follows :—
“ That he did within the jurisdiction of this Court, at Dry DockArea,- Port of Colombo on the 6th November 1968 handle textile 12§yards of tetron found concealed or unclaimed in the customs premiseswithout first informing Customs Officers or Police Officers on duty inbreach of regulation 26A (3) ”.
On the evidence as accepted by the Magistrate it would appear that anunknown person was seen riding on the pillion of a push cycle with aparcel in his hands. The accused who was near a hut in the " Dry DockArea ” was handed this parcel by the pillion rider ; thereafter the bicycleand its riders disappeared out of sight. TH'e accused himself had thengone towards the hut and out of sight of the witnesses who testified tothis incident. The witnesses then hurried up towards the accused
TEXXEKOOX, J.—Jinadasa r. Foreshore Police
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traversing a distanco of about 75 yards. When they got up to the hutthe accused was about 25 yards away from the hut walking fast towards“ Guide Pier The accused was called up to the hut. He deniedreceiving any parcel. He was then asked who had the key to the padlockwith which the door of the hut was locked. He denied having it himself.Thereupon he was searched and a key was found at the back of his waist .The hut was opened with this key and a parcel was found inside coveredby a raincoat. Inside the parcel was a piece of textile of the descriptioncontained in the charge. Some people, probably port labourers attractedby this incident gathered at this place ; upon inquiry whether any oneclaimed the parcel no one came forward to claim it.
No evidence was produced to show that the place where this incidenttook place was in the customs premises at Colombo. The learned Magis-trate following a judgment of this Court reported in 72 N. L. R. 357, tookthe view that the reference to the Port of Colombo in the charge made itunnecessary for the prosecution to lead evidence that the Dry Dock Areawas a part of the customs premises at Colombo. Section 111 enables theMinister to declare the limits of any port and the limits of the Port ofColombo have been defined by an order made under that section. Videpage 1011 of Volume IV Subsidiary Legislation of Ceylon, 1956. Section14S of the Customs Ordinance provides as follows :—
“ In anjT information or other proceeding for any offence against thisOrdinance the averment that such offence was committed within thelimits of any port or the territorial waters of Ceylon shall be sufficient,without proof of such limits, unless the contrary be proved.”
It is obvious that this provision of law is intended to be utilised only'in cases where the nature of the charges against, the accused would makeit incumbent on the prosecution to prove that the offence was committedwithin the limits of a given Port or within the territorial waters ofCeylon.
The learned Magistrate after referring to the definition of “ customspremises at Colombo ” and “ limits of the Port of Colombo ” goes on tosay—
" These definitions illustrate that the Port (which is the greater)includes (except for one) seven separate areas consisting of ‘ Customspremises ’ (which is the less). But, if I may say with respect, HisLordship de Krctscr, J. looked at the matter differently in S.C. 934/63
J.M. C. 37659. The view of this Court was upheld in a later caseS.C. 972/6S—J.M.C. 38244 (72 X. L. R. 357) where His LordshipPandita-Gunawardenc, J. disagreed with the view of de Kretser, J.specifically, permitting this Court thereby to maintain its viewunchanged.” I
I have looked at the two judgments referred to by the learned Magis-trate ; with all respect to my brother Pandita-Gunawardcne, J., I amnot persuaded that my brother de Krotser, J., was wrong when he said
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TEXXEKOON. J.—Jinadasa v. Foreshore Polite
that section 1JS of the Customs Ordinance cannot be called in aid by theprosecution in order to discharge its burden of proving that the conductof the accused complained of took place in the ”customs premises”.While it may be true (and I am myself not prepared to subscribe to thatproposition in the absence of evidence) that “ the Port of Colombo ”includes the “ customs premises ” as defined, there is no -warrant (againin the absence of evidence) for the further assumption that the Dry DockArea even if it falls within the Port also falls within the Customs premises;I also find it difficult to subscribe to the statement made by my brotherPandita-Gunawardene, J. to the effect that the “ customs premises ”includes the '* Port of Colombo ”. The latter consists (roughly) of thowhole of the Municipal limits of the City of Colombo together with theadjacent sea to a distance of three geographical miles AVestwards. It ishardly necessary to say that the regulations made under section 101 werenot and could not have been intended to regulate activities and conductof persons in this vast area ; they are limited to an area different both inconcept and definition and statutorily named “ the customs premises
In the absence of proof of the most important ingredient of the offenceviz., that the place where the incident took place was within the customspremises at Colombo as defined by the Principal Collector, this convictioncannot stand the presence of certain suspicious features in the conductof the accused on this occasion, while it may have had some relevance ifthe accused had been charged with a different kind of offence, does nothelp to supply the want of evidence to prove that the Dry Dock Area iswithin the Customs premises. In this view of the matter it becomesunnecessary to consider the further submissions made by Mr. de Silva tothe effect that the evidence does not establish that the parcel was “ foundconcealed or unclaimed” with the meaning of.the rule at the time the:accused was supposed to have handled it.
I accordingly set aside the conviction and sentence. The accused isacquitted.
Appeal allowed.