027-NLR-NLR-V-53-SEYAVARTHANA-Petitioner-and-HUDSON-Collector-of-Customs-Jaffna-Respondent.pdf
JAYATILEKE C.J.—Seyavarthana v. Hudson
US
4951Present : Jaya till eke C.J. and Gunasekara J.
SEYAVARTHANA, Petitioner, and HUDSON (Collector of Customs,
Jaffna), Respondent
S. C. 595—Application for a Writ of Mandamus on the Collectorof Customs, Jaffna
Customs Ordinance (Cap. 185)—Seizure of boat or goods—Quantum of security tobe given by owner—Section 146.
Under section 146 of the Customs Ordinance, if the owner of the goods seizedas forfeited does not require the goods to be delivered to him he is under noobligation to give security in a sum equal to the value of the property seized.If no such delivery is asked for, security for costs alone need be given.
T
HIS was an application for a writ of mandamus on the Collector ofCustoms, Jaffna.
H. V. Perera, K.C., with E. B. Wichramanayake, K.C., H. Wanigatunga,
R. S. R. Coomaraswamy and D. R. P. Ooonetileke, for the petitioner.
H. W. R. JVeerasooriya, Crown Counsel, with V. O. P. Perera, CrownCounsel, for the respondent.
Cur adv. vvlt.
August 27, 1951. JayattlIjKKF, C.J.—
This is an application for a writ of Mandamus on the Collector ofCustoms, Jaffna (hereinafter referred to as the respondent), directinghim to fix and accept security for costs alone under s. 146 of the CustomsOrdinance (Cap. 185).
On October 19, 1950, a motor launch belonging to the petitioner witha cargo of beedies, foreign liquor^-and textiles was seized as forfeited foran alleged smuggling offence in contravention of the provisions of theOrdinance. On November 1, 1950, the petitioner by his letter markedB requested the respondent to fix the security for costs to enable him toinstitute an action. In that letter he informed the respondent that hedid not require the launch to be delivered to him pending the deter-mination of the action. The respondent by his letter- marked C datedNovember 2, 1950, informed the petitioner that for purposes of actionunder s. 146 of the Ordinance security for costs alone was. insufficientand fixed the security for the launch at Rs. 35,000 and for costs atRs. 3,000. The present application is to compel the respondent to acceptsecurity for costs alone under the section.
S. 146 is not a very good Specimen of the draftsman’s art, and, though
it has been on the statute book for nearly ninety years, it has not, I
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JAYETILEKE C.J.—Seijaoarthana v. Hudson
understand, so far received any judicial interpretation. In Mohideenv: The Attorney-General1 Howard C.J. said:
“ I consider that the section must be construed in a broad sensein consonance with natural principles of justice ”.
The section reads:
“ All ships, boats, goods and other things which shall have beenor shall hereafter be seized as forfeited under this Ordinance, shallbe deemed and taken to be condemned, and may be dealt with in themanner directed by law in respect to ships, boats, goods, and otherthings seized and condemned for breach of such Ordinance, unlessthe person from whom such ships, boats, goods, and other things shallhave been seized or the owner of them, or some person authorised byhim, shall, within one month of the date of seizure of the same, givenotice in writing to the Collector or other chief officer of customs at thenearest post that he intends to enter a claim to the ship, boat, goods orother things seized as aforesaid, and shall further give security to prosecutesuch claim before the Court having jurisdiction to entertain .the same,and to restore the things seized or their value, and otherwise to satisfythe judgment of the Court and to pay costs. On such notice andsecurity being given in such sum as the Collector or proper officerof customs at the port where or nearest to which the seizure was madeshall consider sufficient, the ship, boat, goods, or other things seizedshall, if required, be delivered up to the claimant ; but if proceedingsfor the recovery of the ship, boat, goods, or other things so claimedbe not instituted in the^ proper Court within thirty days from the dateof notice and security as aforesaid, the ship, boat, goods, or otherthings seized shall be deemed to be forfeited and shalT be dealt withaccordingly by the Collector or other proper officer of customs. ”
Two views on the section have been submitted to us. Mr. Pererasaid that if the owner of the goods seized as forfeited does not requirethe goods to be delivered to him he is under no obligation to give securityto restore the goods or their value. Mr. Weerasooriya on the other handsaid that the claimant must in every case, as a condition precedent toinstituting his proposed action, furnish security inter alia in a sum equalto the value of the property seized.
The section- operates to suspend the disposal of seized goods pendingthe determination by a Court of the question whether the goods shouldor should not be condemned. The right given by the section to a claimantto canvass the validity of a seizure cannot be regarded as a mere statutoryright and nothing more because elementary principles of justice requirethat the statute must contain a safeguard against abuse or misuse ofpower by customs officers. It is not sufficient to point out that an ownerwould, in any event, have an action for damages for a wrongful seizuresince damages may, in certain cases, be far less satisfactory a remedythan restoration of the seized property. Hence, the exercise of theright to prevent the disposal of seized goods should not be restricted
1948) 50 N. L. R. 217.
JAYETILEKE C.J.—Seyavarthana v. Hudson
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in any unreasonable manner and in interpretation of s. 146 which,would unreasonably restrict the claimant’s rights should, if possible,be avoided.,
The first sentence in s. 146 on the face of it requires that the securityfurnished by the claimant must cover—
The prosecution of the claim,
The restoration of the thing seized or their value,
Satisfaction of the judgment in other respects and the paymentof costs.
If this sentence stood .alone the conclusion that security in respectof restoration of the goods must always be given by a claimant wouldprobably have been irresistible. But the second sentence clearly contem-plates that delivery of goods to the claimant by whom a notice of claimis given is not a necessary consequence of his making the claim. Itsays that the goods shall be delivered up to the claimant by the collector" if required Since therefore the section does contemplate a case wherethe goods seized remain in the custody of the collector it seems tobe absurd to suppose that the legislature contemplated the giving ofsecurity for an . event which cannot possibly occur. In the presentc&se there is no possibility whatever of it being ever necessary to restorethe goods and hence the taking of security against such an event ispurposeless.
It seems to me that s. 146 can be only given a reasonable and propereffect, by interpreting it in a manner different from the interpretationwhich it bears on its face. For example, there is no imperative provisionthat the amount of the security should be in such sum as the Collectorconsiders sufficient. The section only says that where a sum consideredsufficient by the Collector is given as security then the goo.ds shall bedelivered back “ if required ”. Hence unless the claimant asks fordelivery the Collector will not be able to exercise any discretion as to thesufficiency of the security. Such a construction of the section, althoughit is the necessarily literal construction, is not one which the Courts wouldreasonably give. It is apparent that the draftsman has not clearlyset out the intention of the legislature with regard to the sufficiency of thesecurity. In order to reach a reasonable construction, just as muchas one is compelled to import into the first—sentence the notion of thesufficiency of the security so also is one entitled to read into that sentencethe implication that security in respect of the goods is only required■ if delivery is asked for. The draftsman has erred in placing in the secondsentence the clause regarding the sufficiency of the security, and in thefirst sentence the clause regarding security for restoration of the goods.In both respects we are compelled to depart from the literal constructionin order to reach a reasonable construction of the intention of the legis-lature. For these reasons we are of opinion that Mr. Perera’s contentionis sound and that the application should be. allowed. The petitionerwill be entitled to the costs of the application.
Gunasekara J.—I agree.
Application allowed.