034-NLR-NLR-V-51-THE-ATTONEY-GENERAL-Appellant-and-NAGAMANY-Respondent.pdf
GRATIAEN J,—The Attorney-General v. Xagsmany
149
1949Present: CanekeratneandGratlaen JJ.THE ATTORNEY-GENERAL, Appellant, and NAGAMANY,Respondent
8. C. 8—D. C. Trincomalee, 3,047
Customs Ordinance (Cap. 185)—Sailing vessel—** Knowingly used ” forexport of restricted goods—Forfeiture of vessel—Guilty knowledge ofowner not necessary—Meaning of expression goods prohibited ofexport ”—Meaning of word “ export ”—Sections 128, 128A (I).
In order to justify the forfeiture of a sailing vessel under section128a (1) of the Customs Ordinance it is not essential to provo guiltyknowledge on the part of tho owner of the vessel.
Arumugaperutnal v. The Attorney-General (1947) 48 N. L. R. 510followed.
Goods “ prohibited of export ” contemplated by section 12Sa inoluderestricted goods which are exported in violation of certain conditionswhich must first be satisfied.
Goods are “ exported ”, in tho context of the Customs Ordinance,as soon as they are taken in a vessel outside the limits of a port.
.^^.PPEAL from a judgment of the District Judge, Trincomalee.
H. W. R. Weerasooriya, Crown Counsel, with Olanvilh Perera, CrownCounsel, for defendant appellant.
Thiagalingam, with 8. Maliadcvan, for plaintiff respondent.
Cur. adv. vult.
September 26, 1949. Gbatiaen J.—
The plaintiff in this case was tho owner of a sailing vessel MathuraiAnimal whose tonnage did not exceed 250 tons. In December, 1947, hehad hired the vessel to Supramaniam Nadarajah on the terms of a contractwhich provided that the owner, to use his own words, was “ to be in noway concerned with the use to which the hirer put the vessel Supra*maniam Nadarajah obtained an “ outward coastwise clearance ”under Section 64 of the Customs Ordinance (Chapter 185) entitling thevessel to proceed in ballast to Trincomalee from the harbour of Valvetti-thurai. The master of the vessel for this voyage was K. Kandasamy.
On 20th December the Mathurai Amtnal arrived alongside MuthurJetty in a small harbour on the east coast of the Island not far fromTrincomalee. On 21st December she was again observed atMuthur. Two days later, without having obtained a certificate ofclearance to leave Muthur, she was sighted by the crew of a Customs
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GRATIABN J.—The Attorney‘General v. Nagamany
patrol-launch sailing in a northerly direction off Pigeon Island twentymiles from Muthur. On the approach of the launch there wasmuch agitation on board the Mathurai Animal, and soveral gunny bagswere hastily thrown over the side of the vessel. This naturally arousedsuspicion, and in consequence a customs officer boarded the vessel anddiscovered in the hold a cargo of sixty-six bags of paddy for the exportor transportation of which no official permit could bo produced. Theinference to be drawn from these facts ia irresistible in the absence ofany explanation which would justify a more charitable view of the trans-action. Kandasamy, in breach of Section 128 of the Customs Ordinanceand of the Defence (Control of Export) Regulations in force at the timehad used the vessel under his charge to smuggle paddy out of MuthurHarbour. Whether the ultimate destination of this unauthorised cargowas Valvettithurai or a foreign port is a secret which he has not chosento divulge.
Kandasamy was in due course convicted in the Magistrate’s Court ofTrincomalee on a charge under Section 128 of the Customs Ordinanceof having been “ concerned in exporting or taking out of the Islandsixty-six bags of paddy the exportation of which was restricted underthe provisions of the Ordinance At tho game time the vessel MathvraiAmtnal was declared by the Assistant Collector of Customs to be for-feited under section 128a (1) of the Ordinance on the ground that (toquote only the relevant words of the Section) she had been “ knowinglyused in the exportation of goods prohibited of export”. On receivinginformation of this order of forfeiture, the plaintiff, after due compliancewith the requirements of Section 146 of the Ordinance, instituted thepresent action against the Crown for the release of his vessel. He con-tended that its purported forfeiture under Section 128a was not authorisedby law. After trial the learned District Judge upheld this submissionand entered judgment in favour of the plaintiff as prayed for with costs.The Crown .appeals from this judgment.
The main ground on which the learned District Judge declared theforfeiture of the vessel to be contrary lo law was that the plaintiff wasentirely unaware (which I will assume to be correct) of the fact that hisvessel had been used on the day in question for taking contraband goodsout of Muthur Harbour. The learned Judge accordingly held that thevessel was not ” knowingly used ” in the exportation of prohibited goodswithin the meaning of Section 128a. It is unfortunate that the learnedJudge’s attention had not been drawn to a decision of this Court whereit was held that in order to justify forfeiture of a vessel under Section1 28a (1) it was not essential to prove guiltj' knowledgo on the part of theowner. Arwnugapenimal v. The Attorney-General*. Mr. Thiagalingamconcedes that this authority was binding on the learned District Judge,but he has invited us to take a contrary view in appeal. I decline todo so because I am in respectful agreement with the opinion expressedby Howard C.J. in that case. Section 128a (1) nowhere states that acondition prccedeot to its operation is that the offending vessel shallhave been “ knowingly used ” by her owner on the unlawful occasion,1 {1047) 48 N. L. R. 510.
GrRATIAEN J,—The AUorney.Qtneral v. Nagamanj151
and it seems to me that to read such an unexpressed condition into thesection would be quite unwarranted. There are other statutory pro-visions where the penalty of forfeiture is similarly imposed withoutregard to the guilt or innocence of the owner of goods in respect of whichthe Ordinance has been contravened. Section 106, for instance, notmerely empowers but makes obligatory the forfeiture of goods in certaincircumstances. It seems to me that Section 128a is intended to catchup the case of a vessel which is being “ used ” in the exportation ofprohibited goods by any person, be he owner, charterer, master or anyoneelse who has effective control of the vessel at the time of its improperuse. The word knowingly ” is introduced only to ensure that thepenalty of forfeiture shall not be exacted if, unknown to the owneror the porson in control of a vessel, prohibited goods are surreptitiouslysmuggled on board. In such a case the principle laid down in The AttorneyGeneral v. Rodrigmsz 1 would seem by analogy to apply.
The provisions of Section 128a of the Customs Ordinance are no doubtrigorous in their operation. This circumstance dews not howeverjustify a Court iu refusing to give effect, to the clear intention of the Legis-lature whore it is proved that a vessel has been wilfully used bythose in charge of her for the conveyance of contraband. As LordHewart said in De Keyser v. Harrisa, in dealing with a similar provisionof law, there is “no opportunity for mercy” in applying the section,and as tho Court has “ no option between alternatives ”, it cannot takeinto consideration, mitigating circumstances (should such exist) to relievean owner of the penalty imposed by law. The remedy lies elsewhere incases which may be thought to warrant remission of the forfeiture.The power of mitigation is vested not in the Courts but in other hands—vide Sections 165 and 157 of the Ordinance.
This disposes of the ground on which the learned District Judge enteredjudgment against the Crown. Mr. Thiagalingam has also argued withmuch ingenuity that the order of forfeiture was bad in law on twofurther grounds, namely,
that Section 128a does not apply because the bags of paddy which
wero found on board by the Customs authorities were not“ goods prohibited of export ” but merely goods “ the expor-tation of which is restricted ” within the meaning of Section
128;
that as it was clearly the intention of the master of the vessel to
transport the paddy from Muthur Harbour to Valvettithuraiand not to a foreign port, the paddy had not been “ exported ”from the Island, and that the provisions of Section 128 couldnot therefore be brought into operation.
I now proceed to consider each of these submissions. ScheduleB of the Customs Ordinance contains a “ table of prohibitions and in-structions ” and Section 10 declares that the goods enumerated therein
(1910) 19 If. L. R. 65
(1930) 1K. B. 224.
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GRATIAEN J.—The Attorney-Gene#<jti v. Nagamany
“ shall not …. be exported or taken out of the Island save inaccordance with the conditions expressed in the said Schedule(I have omitted the words which do not apply to the present case.) Theresult is that there are certain goods the exportation of which is absolutelyprohibited, while other goods can only be taken out of the Island uponcertain conditions which must first be satisfied. Paddy undoubtedlybelongs to the latter class which may for convenience be described as“ restricted goods ”. Mr. Thiagalingam’s contention is that Section128 does not apply where goods of that description are taken out of theIsland without compliance with the special conditions which apply inthe particular case. It seems to me that this very subtle distinctionis not- warranted by the language of the statute. In the case of paddy,the restriction imposed by law is that it cannot lawfully be taken outof the Island except under the authority of a licence issued by the Con-troller of Exports. With the greatest respect, I fell to see how the viewcan reasonably be taken that any paddy in respect of which thisrestriction has not been removed falls outside the description of goods“ prohibited of export ” within the meaning of Section 128a.
With regard to the second submission made by Mr. Thiagalingam,I would hold that the paddy was “ exported ’’ (as the term must bounderstood in the context of the Customs Ordinance) as soon as it wastaken ill the vessel outside the limits of the port of Muthur. It makesno difference whether Kandasamy’s intention was to transport it forconsumption on board or in some other part of the Island or in a neigh-bouring country or merely to gratify a sinister impulse to dump it intothosea. The Customs official is concerned on such occasions only with thefact of exportation, and ho need not seek to probo the dark and myste-rious workings of the smuggler’s mind. I would follow in this connectionthe authority of Muller o. Baldwin 1 where, in interpreting an analogousstatute, Lush J. held that the word “export “ must be used in its ordinarysense, namely “ carried out of port- Indeed, other provisions of theCustoms Ordinance would appear to indicate that tho Legislature didnot recognise a distinction between exportation “ outwards or coastwisein the Island “ for the purposes of tho Customs Ordinance (Sections 18and 07).
In my opinion the forfeiture of the Matkurai Animal was justifiedbecause it was “ knowingly used ” on 23rdDecember, 1947,by the personwho wras in chargo of the vessel in tho “ exportation ” of goods whichwere “ prohibited of export ” in the sense that the restriction imposed ontheir exportation had not been removed as required by law. I wouldaccordingly set aside the judgment appealed from and enter decree dis-missing tho plaintiff’s action with costs both here and in the Courtbelow.
Cankkeratne J.—I agree.
Appeal allowed,
1 /.. R. 9 Q> B. 457.