Shiabdeen v. Attorney-General
Shiabdeen and others
COURT OF APPEAL
WTMALARATNE, P. AND ATUKORALE, J.
c./ (p.c.) 321/7'3(f)—d.c. Colombo 68971/m.june 18, 19, 1979
Customs Ordinance (Cap. 235), sections 43, 124, 152 and 154—Forfeiturecf yoods as being unlawfully imported—Action instituted for declarationthat such forfeiture a nullity and recovery of the goods—Burden onS*rr~ t-> prove that goods were imported—Proof beyond reasonabledoubt—Notice of action to be wvhin one month of forfeiture—Lack ofrequisite notice— -Can action be maintained.
Wr.ere lour pieces of gold were forfeited by the Principal Collectorof Cus.oms in terms of section 43 of the Customs Ordinance thep'cuntiffs after giving notice purporting to be under section 154, subse-instituted action seeking a declara'ion inter alia that theforfeiture was a nullity, that they were the lawful owners and for theirretur” or the recovery of their value. The Attorney-General in answerto the plaint pleaded that the said pieces of gold had been imported orbrought into Ceylon contrary to the restrictions contained in section 43of fli_ Customs Ordinance read with section 21(1) (c) of the ExchangeC jntrol Act and they were forfeited under section 125 of the CustomsOrdinance. He also pleaded that as the action had not been institutedwithin the period specified in section 154 of the Customs Ordinance theCourt had no jurisdiction to hear and determine the action.
That in such a case the burden of proving that these pieces ofgob:' had be^n imported or brought into Sri Lanka lay on the defendantwho must prove this beyond reasonable doubt. Where this burden ofproof was not discha ged the forfeiture by the Customs was a nullity.
That however the requisite notice under section 154 of the CustomsOrdinance must be given within one month of the date of seizureand as the plaintiffs had failed so to do, they could not succeed in this
Cases referred to
Attorney General, v. Lebbe Thamby, (1958) 61 N.L.R. 254.
Pulasamy Nadar v. Lanktree, (1949) 51 N.L.R. 520.
APPEAL from the District Coart, Colombo.
A. Mchendrarajah, with Dr. N. Thiruchelvam and Y. M. Fate, for thepiaintiffs-appellants.
K. X. M. B. KuUnunga, Additional Solicitor-General, with S. Ratnapala,State Counsel, for the defendant-respondent.
A 58308 (81/04)
Cur. adv. vult
Sri Lanka Law Reports (1978-79) 2 S. L. R.
July 25, 1979.
On 21.3.67 two parcels containing four pieces of gold weighing999.807 grammes sent by the plaintiffs-appellants from Colomboto Jaffna were taken over by officers of the Customs at the JaffnaPost Office. They were brought to Colombo, and after inquiry,the Principal Collector of Customs informed the 1st plaintiff-appellant by letter dated 26. 1. 68 that the four pieces of goldwere forfeited in terms of section 43 of the Customs Ordinance(Cap. 235). The plaintiffs gave notice on 22.2.68, in terms ofsection 154 of the Ordinance, and subsequently instituted thepresent action on 22.3.68 seeking a declaration that the forfeitureis a nullity and not warranted by any provision of law, that theplaintiffs are the lawful owners, and for an order for their returnor in. the alternative their value, namely Rs. 18,496.00 togetherwith legal interest thereon.
The Attorney-General answered that as the four pieces of, goldhad been imported or brought into Ceylon contrary to the restric-tions contained in section 43 of the Customs Ordinance read withsection 21 (1) (c) of the Exchange Control Act, they were foife'ted;by the Assistant Collector of Customs, Jaffna under section 125(of the Customs Ordinance on 21.3.67 ; that the Principal Collectorof Customs held an inquiry into alleged contravention of theprovisions of section 129 by the plaintiffs, and that by letter dated
the Principal Collector informed them that although theywere not liable to a further forfeiture under section 129, the fourpieces of gold were forfeited under section 125 read with section43 of the Ordinance. The Attorney-General also pleaded that asthe action had not been instituted within the period specified insection 154 the District Court had no jurisdiction to hear anddetermine the action.
The 1st plaintiff gave evidence to the effect that the four goldbars were the property of the plaintiff ; that they had been madeby melting old gold jewellery which they had purchased fromvarious persons. They are a firm of jewellers which wasestablished in 1923, and which carries on business in 2nd CrossStreet, Colombo. Because of the restriction in the import of goldsince 1950, they used to buy old gold jewellery for thepurpose of manufacturing new jewellery. The old goldused to be melted and purified into rectangular blocks of 24 caratpurity by one Somasunderam of Sea Street. The 4 pieces of goldseized by the Customs officers were made by Somasundaram outof jewellery purchased by plaintiffs in March 1967. They werethen sent by post to one Sahib of Jaffna for the purpose of
CAShiabdeen v. Attorney-General (Wimalarafne, P.)3
making new jewellery in terms of the instructions contained ina letter, a copy of which was marked as Pla. The 4 pieces of goldwere sent by registered insured post.
About 3 or 4 days after he posted them on 20.3.67 he receivedinstructions from Sahib about what had happened to them.Subsequently on 11.4.67 some customs officers came to hisestablishment and informed him that they had “ seized the goldin Jaffna ”. When he claimed the gold, they said that they wouldhave to hold an investigation. It was only by letter P2 dated
that he was informed that the goods were forfeited. Hethereupon gave notice in terms of section 154.
The plaintiff called witness A. B. Hemachandra, proprietor ofHemaehandra Bros. Jewellers of Colombo to establish that theplaintiffs’ firm and their associate firm of A. K. M. Abdul Caderand Co. were well-known jewellers in Colombo who had at onetime supplied gold to the Government of Ceylon. He testifiedalso tc the fact that gold bars were being produced locally to thepurity of 99.9 per cent by melting old gold, and that the hallmarks of foreign assayers were sometimes placed on such bars.
The defendant called the Assistant Collector of Customs, Jaffna,to establish that the gold bars were forfeited at Jaffna on 21.3.67,under section 43 and 125 of the Customs Ordinance, and that hemade a record of that fact in his order D3. He also recorded thestatement of one I. I. Abdul Gaffoor, the agent of Sahib who hadgone to the post office to take delivery of the parcels.
The evidence referred to above was recorded by Mr. C. V.Udalagama, District Judge. Mr. A. Vythialingam had succeededhim on 29.5.73 and it was agreed that Mr. Vythialingam shouldact and decide on the evidence, already recorded by Mr. Udala-gama. Learned State Counsel then closed the case for the defence,and the Judge put off addresses for 30.5.73. On that date StateCounsel moved to lead the evidence of the former GovernmentAnalyst, Mr. Sirimane. In spite of objection by Counsel for theplaintiffs, the learned District Judge allowed the application as inhis view no prejudice would be caused to the plaintiffs.
Before I deal with the evidence of Mr. Sirimane it is necessaryto set out the law applicable in a situation such as this. In TheAttorney-General v. Lehbe Thamby (1) the question fordecision was whether certain gold bars found in the possess-ion of an employee of the respondent on 24.2.55 were unlawfullyimported and therefore liable to be seized as forfeited under theCustoms Ordinance. After the Exchange Control Act came intpoperation on 15.8.53, the importation of gold, except with thepermission of the Central Bank was prohibited. The Attorney-General conceded that the burden of proving lawful importation
Sri Lanka Law Reports
(1978-79) 2 S. L. R.
would not lie on the owner under section 144 (present section152) oi the Customs Ordinance unless the Crown proved that thegold bars were imported. Basnayake, C.J. held that the Crownshould have established that fact beyond reasonable doubt as in acriminal case. The reason for insisting on such a heavy burdenis that the Customs Ordinance is a penal enactment whichimposes severe penalties on those who violate its provisions, andthat any breach of such provisions must be established beyondreasonable doubt.
Had the evidence been what it was when the defendantclosed its case on 29.5.73, then there was no proof, even on abalance of probability, that the gold bars had been imported.Mr. Sirimane’s evidence was that he examined the gold barsproduced in court sometime in July 1967. They were producedby some Customs officers. There was no evidence as to whoproduced them, or as to where they were between the date of“seizure” in Jaffna on 21.3.67 and the date of examination inJuly 1967. Mr. Sirimane testified to having observed certainmarkings resembling a trace of a circular impression and certainfigures which could be deciphered as 999 ; and that these impres-sions appeared to have been obliterated by hammer marks sitedat the places where the original impressions were. He war thenasked the question whether he could express an opinion as tothe possible source of manufacture of the gold bars and hereplied that “ they could have been marks made by an assayer ”in Switzerland. Even this opinion was based on what someonepise hud written to him in correspondence.
The learned District Judge says in his judgment that the factof the existence of these marks shows that the gold bars couldnot be the ones Somasunderam made out of the old gold jewel-lery? as he had not been given instructions to place any marks.&ere the District Judge has clearly misdirected himself on theburden of proof. Instead of looking for proof beyond reasonabledoubt of the fact of importation, which burden had to be dis-charged by the Crown, he appears to have cast the burden onthe plaintiff of proving that these bars were locally manufactur-ed. He should, on the evidence have held that the Crown hadnot proved that the articles were imported, and that consequent-ly their forfeiture by the Customs officers was a nullity. Theanswer to issue 5 should, 'in my view, have been in favour ofthe plaintiffs.
The next question for determination is as to whether theDistrict Judge was right in holding that the plaintiff has notcomplied with the provisions of section 154 of the CustomsOrdinance which requires the owner of the goods seized as
Shiabdeen v. Attorney-General (Wimalaratne, P.)
forfeited under the Ordinance to give notice in writing to theCollector, within one month of the date of the seizure, of hisintention to claim the goods. If the date of seizure was 21.3.67,then the plaintiff was out of time. For the plaintiff it was con-tended +hat the date of seizure was not 21-3.67 but 26.1.68, onwhich date he received the letter P 2.
The present case is distinguishable from the case ofPalosamy Nadar v. Lanktree (2) where an entire cargo in aship was detained by the customs officers on a certain date, buton a subsequent date some of the goods were released and othersforfeited. It was held that for the purposes of section 154 thematerial date of seizure was the latter date, and not the earlierdate because on the earlier date the entire cargo was merelydetained pending a decision as to what part of it should be for-feited. Gratiaen, J. observed, however, that “ if goods are declaredto be ‘forfeited’ as opposed to liable to forfeiture on thehappening of a given event, their owner is automatically andby operation of law divested of this property in the goods as soonas the event occurs. No adjudication declaring the forfeitureto have taken place is required to implement the automaticincident of forfeiture” at 522.
D3 says that the gold bars were forfeited under sections 43and 125 of the Customs Ordinance read with the Exchange ControlAct, and it is dated 21.3.67. It has been signed by the AssistantCollector, Kandasamy, as well as by Gaffoor who had gone totake delivery at the post office on behalf of Sahib. No seizurenotice was issued apparently because Gaffoor was present, andwas informed of the next date of inquiry.
The 1st plaintiff’s evidence is that when the Customs officerscame to record his statement on 11.4.67, they told him thatthey had seized the gold in Jaffna ”. He thereafter receiveda letter D1 dated 13.5.67, informing him that an inquiry wouldbe held in respect of gold bars seized in Jaffna on 21.3.67, andrequesting him to show cause why he should not be dealt withfor being concerned in importing them into Ceylon contraryto section 129 of the Customs Ordinance. That inquiry undersection 129 was held on several dates. It is thereafter thatplaintiffs received P2. The learned District Judge was thereforeTight in holding that the gold bars were seized as forfeited on21.3.67. As the plaintiffs had not given the requisite notice undersection 154 within one month of that date, the plaintiffs cannotsucceed in this action. I would therefore dismiss this appealwith costs.
ATUKORALE, J.—I agree.