RAJAPAKSE vs. DIRECTOR GENERAL OF CUSTOMS AND ANOTHER

008-SLLR-SLLR-2006-V-3-RAJAPAKSE-vs.-DIRECTOR-GENERAL-OF-CUSTOMS-AND-ANOTHER.pdf


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Sri Lanka Law Reports
(2006) 2 Sri LR.
RAJAPAKSE
VS
DIRECTOR GENERAL OF CUSTOMS AND ANOTHER
COURT OF APPEAL.
SRISKANDARAJA. J.
CA 1200/2002.
JUNE 12, 2006.
SEPTEMBER 5, 8, 2006.
Writ of Certiorari – Customs Ordinance -section 119- Import and Export (Control)Act – Vehicle imported – Chassis number tampered with – Forfeiture of vehicle-No knowledge of the falsification of documents – Is it a defence? “Willfully use"–meaning – Excise Profits Duty Ordinance No. 38 of 1941.
The used vehicle imported by the petitioner was detained by the Customs, andafter investigation it was found that the chassis number of the vehicle had beentampered with. After inquiry, the vehicle was forfeited in terms of section 119. ThePetitioner contended that, the petitoner cannot be charged under section119 ashe is not the author of the document presented to Customs.
CA
Rajapakse vs.
Director General of Customs and Another (Sriskandarajah, J.)
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The contention of the petitioner was that, as he had no knowledge of the fraudthe petitioner could not have willfully used the same.
HELD:
The word “willfully use” in section 119 has to be analyzed givingits ordinary meaning. The word “willfully” qualifies the word ‘use*and no more.
The words ‘willfully use' should not be construed as using, withthe knowledge of intention.
The section provides ‘Willfully use’ when counter feited or falsifieddocument and NOT willfully using counter feited or falsifieddocument.
APPLICATION fora Writ of CertiorariCases referred to:
Chellappah vs. Commissioner of Income Tax – 52NLR 416
In Re Young and Harston – 31 Ch. D. 174
R vs Badger – L. J. M. C. 81 at 90 •
Tennakoon vs. Director General of Customs and another – 2004-1Sri LR 53 at 56.
Cur. adv. vult.
August 23,2006SRISKANDARAJAH, J.
The Petitioner imported to Sri Lanka a used Prado vehicle bearing chassisnumber KZJ -195-0130788. Upon importation, the said vehicle was detainedby the Sri Lanka Customs for the purpose of examination and investigation.The Petitioner was requested by a letter dated 19.05.2000 (A2 markedwith the Petition) to appear at the Fort Preventive Office (InvestigatingUnit) on 23.05.2000 for the purpose of recording his statement. Thereafterby letter dated 20.11.2000 the Sri Lanka Customs informed the Petitionerthat the Government Analyst has examined the vehicle in question andhas confirmed that the chassis number of the said vehicle had beentampered with and re-introduced. Hence the Petitioner was asked to showcause as to why the vehicle should not be forfeited under the provisions ofthe Customs Ordinance read with the provisions of the Import and Export(Control) Act. After the Petitioners reply to this letter the 2nd Respondentheld an inquiry under the provisions of the Customs Ordinance. The inquirywas held on 07.08.2001,09.08.2001 and 16.08.2001. At the conclusion of
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the inquiry an order was made on 16.08.2001 that the vehicle in questionto which information was provided to the Customs in documents markedP11 and P13 is untrue and falsified with regard to the chassis number ofthe vehicle and held that the vehicle is liable to be forfeited in terms ofsection 119 of the Customs Ordinance and declared that it is forfeited.
The Petitioner is seeking a writ of certiorari to quash the order dated
forfeiting the Petitioner’s vehicle and a writ of mandamus torelease the said vehicle.
The Petitioner was charged under section 119 of the Customs Ordinance.This section deals with making of false declarations, signing, counterfeitingand using the false documents. The Government Analyst in his reportmarked 1R18 states that the correct chassis number of the vehicle importedby the Petitioner is KZJ 95-0130777 and not KZJ 95-0130788 as referredin the documents tendered by the Petitioner to the Customs.
The Petitioner contended that the Petitioner was charged under section119 of the Customs Ordinance but he cannot be charged under the limb ofthat section for make and subscribe any declaration, certificate or otherinstrument or make or sign any declaration as he is not the author of thedocument presented to the Customs. The Petitioner submitted that hewas charged specifically under the following limb of that section :
“If any person shall counterfeit, falsify, or willfully use when counterfeitedor falsified, any document required by this Ordinance or any enactmentrelating to the Customs, or by or under the directions of the Collector orany instrument used in the transaction of any business or matter relatingto the customs, or shall fraudulently alter any document or instrument, orcounterfeit the stamp, seal, signature, initials or other marks of, or usedby the Officers of the customs for the verification of any such document orinstrument, or for the security of goods, or any other purpose, in theconduct of business relating to the customs, every person so contraveningshall be liable to forfeit a sum not exceeding one hundred thousand rupees,and any goods, including currency in any form, in relation to which thedocument or statement was made shall be liable to forfeiture : Providedalways is that this penalty shall not attach to any particular contraventionfor which any other penalty shall be expressly imposed by any law inforce for the time being.”
The Petitioner contended that according to the submissions of theRespondents that the Petitioner’s case would fall within the above limb onthe basis that the Petitioner wilfully used documents which are counterfeited
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Rajapakse vs.
Director General of Customs and Another (S. Sriskandarajah, J.)
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or falsified. But in fact the Petitioner’s case cannot fall within the abovementioned limb for the reason that admittedly the Petitioner had no priorknowledge of falsified or untrue documents. The Petitioner further contendedthat the inquiring officer in his order observed “I do not elect to impose anyfurther forfeiture or penalty on the parties concerned in the absence of anyknowledge or intention in the fraud”. By the said order the inquiring officerhas admitted that the Petitioner has not played any role in the perpetrationof the fraud and or knowledge of the same.
The submission of the Petitioner is that if the Petitioner has had noknowledge of the fraud the Petitioner could not have wilfully used thesame. The Petitioner submitted that the legislature has intentionallyused the word “wilfully use" as opposed to mere “use” for the reason thatthe legislature wanted to punish a person who has an active hand or role indefrauding the customs and not a person who merely used the documentswithout the knowledge of any mal-practice.
The Petitioner contended that “wilfully use" has to be construed asusing with the knowledge or intention in other words if a counterfeited orfalsified document is tendered to the customs, it could be construed aswilfully use only if the person who tenders the said document had aknowledge of counterfeited or falsified or he had an intention to defraud.
The word “wilfully use” in section 119 of the Customs Ordinance has tobe analysed giving its ordinary meaning. In this instant the word “willfully"qualifies the word “use” and no more. The section provides “willfully usewhen counterfeited or falsified, document" and not “wilfully usingcounterfeited or falsified, document”.
The word “wilfully" judicially interpreted in Chellappah v Commissionerof Income Tax Basnayake J when interpreting the word “Wilfully with intentto evade tax" in section 12(5) of the Excess Profits Duty Ordinance, No.38of 1941 held: wilfully in the above context should be construed as meaningdeliberately or purposely with the evil intent of committing the act or actsenumerated in the section. But he observed the word “Wilfully" alone wouldmean:
The dictionary (New Standard Dictionary) gives the following meaningsof the word “wilfully” with free exercise of the will; voluntarily; intentionally; in law, designedly, as opposed to inadvertently; in penal statute, purposely,with evil intent; maliciously”. In commenting on this word in the case of inre Young and Harston Browen, L. J, observes:
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“Wilful is a word of familiar use in every branch of law, and although insome branches of law it may have a special meaning, it generally, as usedin courts ofJaw, implies nothing blameable, but merely that the person ofwhose action or default the expression is used is a free agent, and thatwhat has been done arises from the spontaneous action of his will. Itamounts to nothing more than this, that he knows what he is doing, andintends to do what he is doing, and is a free agent."
In the case of R. V. Badger, It was held that a surveyor was not guilty of“Wilfully” receiving a higher fee than he was entitled to, when acting underan honest mistake’
For the above reasons I cannot agree with the submission of the learnedCounsel for the Petitioner that “wilfully use” has to be construed as usingwith the knowledge or intention.
In Tennakoon V. Director- General of Customs and Another 56Wijayaratne J, in analyzing section 119 of the Customs Ordinance observedthus :
“Examining the legality of the Order of forfeiture of the vehicle in suitmade under Section 119, the fact that the Petitioner as well as the importerused Original Certificate of Registration (OCR) for the purpose of clearanceof the vehicle is an admitted fact. When it is used for the purpose ofclearance, the use is wilful and such is established in law. In terms of theprovisions of Section 119 of the Customs Ordinance”… wilful use whencounterfeited or falsified, any document required by the Ordinance…” resultsin the liability of forfeiture”
In this instant case there is no dispute that false documents weresubmitted by the Petitioner therefore the wilful use of those documentsare established. Hence the offence set out in Section 119 of the CustomsOrdinance is established. The 2nd Respondent in his order dated
which was made after an inquiry held:
“I declare forfeit two vehicles at Rs.8 million in terms of section 119 ofthe Customs Ordinance.”
“I do not elect to impose any further forfeiture or penalty on the partiesconcerned in the absence of any knowledge or intention in the fraud isestablished against them.”
For the above reasons I hold that the above order is lawful and reasonablein the given circumstances. Hence I dismiss this application without costs.
Application dismissed.