THE ATTORNEY-GENERAL, Appellant, and W.A. WIMALADHARMA, Respondent

042-NLR-NLR-V-78-THE-ATTORNEY-GENERAL-Appellant-and-W.A.-WIMALADHARMA-Respondent.pdf


Attorney-General v. Wimaladharma
327
1975 Present: Tennekoon, C. J., Pathirana, J., and Ratwatte, J.
THE ATTORNEY-GENERAL, Appellant, and W. A.WIMALADHARMA, Respondent
S. C. 281/71 (F)— D. C. Colombo 72018/M
Customs Ordinance-—Goods seized as forfeit under Sections 12 and 43of the Customs Ordinance read with the Import and Export(Control) Act and regulations thereunder—Burden of proof oflawful importation under Section 152 of the Customs Ordinance—Imposition of forfeiture under Section 129 of the CustomsOrdinance—Application of Section 152 to cases arising underSection 129—Section 107 discussed.
The Plaintiff instituted an action against the Attorney-Generalinter alia for a declaration that the forfeiture under the CustomsOrdinance of wrist watches and other articles was unlawful and thatthe imposition of a forfeiture of treble the value of the said articleswas illegal. The Attorney-General in his answer pleaded that theaforesaid articles were imported into Ceylon contrary to therestrictions contained in Sections 12 and 43 of the Customs Ordinanceread with provisions of the Import and Export Control Act and theregulations made thereunder. The articles were accordingly seizedas forfeit to the State. The Attorney-General further pleaded thatthe imposition of the forfeiture of treble the value of the articlesseized was under Section 129 of the Customs Ordinance inasmuch asthe plaintiff was knowingly concerned in dealing with goods liableto duties of customs with intent to defraud the revenue of suchduties.
It was common ground that it was only from 11.01.63 that alicence was required to import the said articles and that prior tothe said date there were no import restrictions. It was contendedthat the onus of proving lawful importation on the part of theplaintiff did not arise until the State proved not only that thearticles were imported but also that the importation was after11.01.63, the date on which the import restrictions came intooperation.
Held : (Tennekoon, C.J.. dissenting') (1) that once the State provesthe fact of importation, Section 152 of the Customs Ordinance putsthe burden of proving lawful importation on the claimant andrelieves the Attorney-General of such burden. Lawful importationmay not only be proved by the production of a licence or permitby the claimant, but also by proving that the goods were importedprior to the date on which the restrictions came into operation.(Attorney-General vs. Gnanapiragasam 68 N. L. R. 49 followed).
(2) that in order to justify the imposition of the forfeiture underSection 129 of the Customs Ordinance the State must prove (a) thatthe plaintiff -was in any way knowingly concerned in any mannerdealing with any goods liable to duties of customs and (b) that hedid so with intent to defraud the revenue of such duties or any partthereof.
Per Tennekoon, CJ.
“ In Gnanapiragasam’s Case, as in this case, the cause of forfeiturewas given as importation of goods without a permit, and withrespect I would like to say, that H. N. G. Fernando, S.P.J. posedthe wrong question. The question that arose was not the broadquestion as to whether the gold bars were lawfully imported, butonly the question as to whether the importation of the gold barswas covered by a licence or permit, because the allegation of theCustoms authorities was that they were imported without a permit.That question presupposes that at the date of importation a permitwas necessary and it was clearly the burden of the Crown to provethat the importation was after 1953, the year in which theimportation of gold came under a permit.”..
328
TENNEKOON, C. J.—Attorney-General o. Wimaladharma
A. PPEAL from a j udgment of the District Court, Colombo-
K. M. M. B. Kulatunga, Senior State Counsel, with A. S. M-Perera, State Counsel, for the defendant-appellant.
11. L. de Silva, with John Kitto for the plaintiff-respondent.
Cur. adv. vult-
December 19, 1975 Tennekoon, C.J.—
The plaintiff-respondent filed this action against the Attorney-General on the 4th of January, 1970—
claiming 82 wrist watches, 120 wrist watch straps and
137 Pilot pens “ purported to have been seized by theAssistant Collector of Customs ” (1st cause of action),
claiming 212 wrist watches, 58 wrist watch straps and 10
Pilot pens also purported to have been seized as afore-said (2nd cause of action),
for a declaration that the imposition of a forfeiture
of a penalty of a sum of Rs. 31,845.00 was null and void(3rd cause of action).
The plaintiff alleged in his plaint that the seizures referred toand the forfeiture of a sum of Rs. 31,845.00 were “ illegal, wrong-ful and unlawful ”.
The Attorney-General in his answer stated that the goodsreferred to in the 1st cause of action were seized as forfeit underSection 125 of the Customs Ordinance as they were goodsimported or brought into Ceylon contrary to the restrictionscontained in Sections 12 and 43 of the Customs Ordinance; theposition of the State was that the importation of goods of thedescription set out in the plaint was nrohibited as from 11.1.63except on a licence from the relevant authority. T'ho Attorney-General further answered that the goods referred to in the 2ndcause of action were seized as forfeit under the aforesaidSection 125 of the Customs Ordinance as they were made useof in the concealment of the goods referred to in the 1st causeof action.
Answering to the 3rd cause of action the Attorney-Gcneralpleaded that the sum of Rs. 31,845.00 was treble the value of thegoods referred to in the 1st cause o? action forfeited underSection 129 of the Customs Ordinance as the plaintiff wasknowingly concerned in dealing with those goods which wereliable to duties with intent to defraud the revenue. TheAtlornev-General nrayed in reconvention for judgment in thesun of Rs, 31,845.00.
TENNEKOON, C. J.—Attorney-General v. Wimaladharma
329
The case went to trial on 18 issues adopted by the Court. Theissues and the learned Distxict Judge’s answers to them were:
“1. Are the goods mentioned in paragraph 3 of the plaint,,namely, 82 wrist watches, 120 wrist watch straps and137 pilot pens, which have been seized on behalf ofthe Crown, the property of the plaintiff ?—Yes.
Are the goods mentioned in paragraph 6 of the plaint,
namely, 212 wrist watches, 58 wrist watch straps and10 Pilot pens, which have been seized on behalf of theCrown, the property of the plaintiff ?—Yes.
If issue 1 and/or issue 2 be answered in the affirmative, is
the plaintiff entitled to the return of the goods, or torecover their value?—Yes.
Have the goods referred to in paragraph 3 and/or para-
graph 6 of the plaint, been seized without reasonableor probable cause ?—Yes.
Is the seizure of the goods referred to in paragraph 3 of
the plaint lawful ?—No.
Is the seizure of the goods referred to in paragraph 6 of the
plaint lawful?—No
If issue 5 is answered in the affirmative must the plaintiff
fail on his first cause of action?—Does not arise.
If issue 6 is answered in the affirmative must the plaintiff
fail on his second cause of action?—Does not arise.
Are the goods described in paragraph 3 of the plaint liable
to duties of Customs?—No.
Was the plaintiff knowingly concerned in dealing with the
said goods with intent to defraud revenue of suchduties, or any part thereof?—No.
Did the Assistant Controller of Customs elect, under the
previsions of Section 129 of the Customs Ordinance,that the plaint'ff shall forfeit a sum of Hs. 31,34-5 beingtreble the value of the said goods?—Yes.
If issues 9, 13 and 11 are answered in the affirmance is
the defendant entitled to judgment in reconven'd onagainst the plaintiff in a sum of Rs. 31.345? —No.
Have the goods referred to in paragraph 3 of the pah:t
been imported, or brought into Ceylon ?
If so, on what date, or dates, were they imported rate
Ceylon ?
330
TliNNKKOON, C. J.—Attorney-General v. Wimaladharma
Were there in force restrictions against their import into
Ceylon on the said date or dates ?
Were there valid restrictions on such date or dates ?
If so, have the goods referred to in paragraph 3 been
imported, or brought into Ceylon, contrary to suchrestrictions ?
Were the goods referred to in paragraph 6 of the plaint
made use of in the concealment of the goods referredto in paragraph 3 of the plaint ? ”
Issues 13 to 18 were not answered-
The learned District Judge gave judgment for the plaintiff-respondent and dismissed the Attorney-General’s claim in re-convention holding inter-alia—
that the plaintiff is the owner of the goods or the articles
in question ;
that the burden was on the State to prove that the
goods were imported into this country after 11.1.63 thedate of the Gazette Notification imposing restrictionon importation ;
that as the State failed to establish that the goods were
imported after 11.1.63, they were not liable to seizure;
That the seizure of the articles by the Customs Authori-
ties was illegal, wrongful and unlawful ;
that the burden of proving lawful importatipn which is
placed on the claimant by section 152 of the CustomsOrdinance did not arise till the State proved that thearticles were imported after 11.1.63 ;
that the evidence did not establish that the goods
referred to in the 2nd cause of action were used toconceal the articles referred to in the 1st cause ofaction.
In appeal Counsel for the appellant and the respondent devoteda considerable amount of time to the proper meaning to be givento section 152 of the Customs Ordinance. This section reads asfollows: —
t
“ 152. If any goods shall be seized for non-payment of dutiesor any other cause of forfeiture, and any dispute shallarise whether the duties have been paid for the same,or whether the same have been lawfully imported, orlawfully laden or exported, the proof thereof shall lieon the owner or claimer of such goods and not on theAttorney-General or the officer who shall seize or stoTthe same. ”
TENNEKOON, C. J.—Attorney-General v. Wimaladharma
331
There are many provisions in the Customs Ordinance whichdeclare goods to be forfeited in certain circumstances. Section43 is one of the most important of these provisions- That Sectionreads as follows : —
“ 43. If any goods enumeratd in the table of prohibitions andrestrictions in Schedule B shall be imported or broughtinto Ceylon contrary to the prohibitions and restric-tions contained in such table in respect thereof, suchgoods shall be forfeited, and shall be destroyed ordisposed of as the Principal Collector of Customs maydirect. ”
Section 125 then goes on to provide—
“ 125. All goods and all ships and boats which by thisOrdinance are declared to be forfeited shall and maybe seized by any officer of the customs; and suchforfeiture of any ship or boat shall include the guns,tackle, apparel, and furniture of the same, and suchforfeiture of any goods shall include all other goodswhich shall be packed with them, as well as the pack-ages in which they are contained; and all carriagesor other means of conveyance, together with all horsesand all other animals, and all other things made use ofin any way in the concealment or removal of any goodsliable to forfeiture under this Ordinance, shall beforfeited. ”
Sections 154 and 155 of the Customs Ordinance provide forcertain formalities which claimants of goods seized have tocomply with before or at the time of insitution of action.
Section 152 starts off with the words : “ If any goods shall beseized for non-payment of duties or any other cause of forfeiture,and any dispute shall arise whether the duties have been paid forthe same, or whether the same have been lawfully imported, orlawfully laden or exported. ” The way in which this section isdrafted indicates that the existence of a seizure for a cause offorfeiture is a condition precedent to the application of the restof the section.
Does the expression “ if any goods have been seized ” implylawful seizure ? Obviously, it does mean that ; but is a seizurelawful only if the State can prove that the goods are forfeitunder some provision of law ? Under Section 152 it cannot bethat the Attorney-General must first prove that the goods arelawfully forfeit before the claimant is called upon to prove thecontrary; that would make nonsense of the section.
332TENIsEiCOON, C. .1. – Attorney-Gaif ml r. It u>nilac!harm<i
We are still left with the question, when is seizure lawful ? Itis contended for the State that it is sufficient merely to provethe fact of seizure by an Officer of Customs, and that once that isproved or admitted, the burden would be on the claimant toestablish lawful importation. In support of this contention it hasbeen submitted to us, borrowing words of Lord Goddard, C. J. inR. V- Cohen. (1951) 1 A. E. R„ p. 203, that—
“ the powers of Customs Officers are always used with thisdiscretion, ”
and that there is no danger of abuse of this power by CustomsOfficers, but Lord Goddard himself added that though that maybe so “ it is in law possible for them (Customs Officers) torequire anyone, be he trader or not, who has dutiable goods inhis possession, to show that duty has been paid. ”
This same power of investigation and inquiry is enjoyed by theCustoms Authorities in Sri Lanka ; if there is even some-anony -mous information received by Customs reporting the presence ofuncustomed goods in some premises it would be within the powerof the Customs Officers to make inquiries, to search, and if needbe take possession of any goods for purposes of further investi-gation without proceeding to ‘ seizure ’ ; in some cases an attemptto smuggle goods would be detected red handed by a CustomsOfficer himself in which case the need for further investigationdoes not arise. In other cases, particularly, in those cases whereforeign goods are found inland, any information will requiresome kind of investigation before goods are forfeited. For thispurpose Customs Officers are given powers of examination andinquiry, search, etc., under Sections 8 and 9 of the CustomsOrdinance. A formal seizure will follow only after such inquirywhen the Customs Officer is satisfied that there is at least awell grounded suspicion that the goods have been unlawfullyimported. As Gratiaen, J. said in the case of Palasamy Nadar vs.Lavktree, 51 N. L. R., p. 520 :
“the power of seizure conferred by section 123 (now 12.5)includes by implication the power, for the purpose nf exami-nation, to detain for a reasonable period any goods which aCustoms Officer suspects to he liable to be seized as forfeitedgoods. ”
It seems to me, therefore, that the words in section 125 whichgive power to seize goods declared under the Customs Ordinanceto be forfeited must be read as meaning that the Customs Officermay seize goods only if he has reasonable ground for suspectingthat the goods are uncustomed or goods imported contrary t
TEiiXEKOOX, C. .T. -Attorney-General v. Wimaladharma
333
prohibition or restriction and are for that reason forfeit. Whensection 125 provides that—
“ All goods and all ships and boats which by this Ordinanceare declared to be forfeited shall and may be seized by anyofficer of the customs, ”
it does not mean that any goods may be seized by Officers ofCustoms according to whim and fancy, nor that the CustomsOfficer has a judicial or quasi judicial power to decide thatcertain goods are liable to forfeiture; it only means that an Offi-cer of Customs bona fide acting as such may seize any goodswhich he has reason to suspect are forfeited or liable to for-feiture under one or other of the provisions of the CustomsOrdinance. To use the words adopted by the Legislature itself—though in another context—the Officer of Customs seizinggoods under section 125 must have ‘ probable cause for suchseizure I take these words from section 159 of the CustomsOrdinance, which reads—
“ In case any information shall be brought to trial onaccount of any seizure made under the Ordinance, and ajudgment shall be given for the claimant thereof, and thecourt before which the cause shall have been tried shallcertify on the record that there was probable cause ofseizure, the claimant shall not be entitled to any costs of suit,nor shall the person who made such seizure be liable to anyaction or prosecution on account of such seizure; and if anyaction shall be brought to trial against any person on accountof such seizure, wherein a judgment shall be given againstthe defendant, if the court before which such informationshall have been tried shall have certified on the said recordthat there was a probable cause for such seizure, the plain-tiff, shall only be entitled to a judgment for the thingsseized, or the value thereof and not to any damages, nor toany costs of suit. ”
To get back to section 152 : Section refers to a situationwhere goods are seized—
“ for non-payment of duties or any other cause of forfei-ture. and any dispute shall arise whether the duties havebeen paid for the same, or whether the same have been law-1 fully imported, or lawfully laden or exported. ”
The Customs Ordinance contains many provisions dealing withsituations in which goods are forfeited. To mention a few ofthem, Section 27, Goods not reported or entered, forfeited. Sec-tion 30, Goods concealed on board the ship to be forfeited. Section33, Goods unshipped or lauded contrary to regulations be forfeit-ed. Section 34, Goods unladen, landed or removed without
334
TENNEKOON, C. J.—Attorney-General v. Wimalactnar-■
sufferance from the Collector for landing the same to be forfeit-ed. Section 38, goods found in a boat without a boat-note or inexcess of the quantities specified in the boat-note etc. to be liableto forfeiture. Section 43, Good^ imported or brought into Ceyloncontrary to prohibitions and restrictions to be forfeited. Section47, Goods not agreeing with particulars in bill of entry be forfeit-ed together with all other goods which are entered or packed withthem. Section 50, Goods taken out of any ship or warehouse nothaving been duly entered, be forfeited Section 55, Goods remov-ed from one sea port to another in Sri Lanka contrary to rulesregulations and restrictions to be forfeited. Section 57, Goodsexported without due entry to be forfeited. Section 59, Goodsladen, put off, or shipped contrary to provisions of this sectionor without due entry outwards to be forfeited. Section 75, Goodsnot duly warehoused or fraudulently concealed or removed tobe forfeited. Section 80, Goods delivered withheld, or removedfrom the proper place of examination before the same shall havebeen duly examined and certified to be liable to be forfeited.Section 107, Goods landed, taken out or passed out of any shipor out of any warehouse, not having been duly entered to beforfeited. Section 118, Prohibited goods on board the ship hower-ing on the coast liable to forfeiture. Section 121, Goods exportedor carried coastwise in contravention of prohibition to be forfei-ed. Section 125, All carriages or other means of conveyance,together with horses and other animals and all other things madeuse of in the concealment or removal of any goods liable toforfeiture, to be forfeited.
It will thus be seen that there are many grounds on whichCustoms Officers may seize goods as forfeited. When section 152speaks of, “ any dispute shall arise whether duties have been paidfor the same or whether the same have been lawfully importedor lawfully laden or exported ”, it contemplates that it is the dutyof the Customs Authorities to disclose the ground of forfeitureor the grounds, if there are more than one ground. Thus it isinsufficient for the Customs Authorities merely to say in generalterms that the goods are forfeited because they have been un-lawfully imported or unlawfully exported. To permit the Cus-toms to do so would be to leave the claimants without any ideaas to the ground of forfeiture. A dispute cannot arise unless tHeCustoms Authorities indicate under what provision of theCustoms law the goods are forfeit or liable to forfeiture. In thepresent case the goods were removed from the plaintiff’s shopon the 22nd of February, 1969, after a search under section 126of the Customs Ordinance. Thereafter, after a passage of nearly9 months, the Principal Collector of Customs wrote to the plain-tiff on the 11th of November, 1969, to the effect that the goods
TENNEKOON, C. J.—Atlomey-General v. Wimaladharma
335
referred to in. the 1st cause of action are forfeited under section43 and 107 (1) of the Customs Ordinance. This letter also statedthat the goods referred to in the 2nd cause of action are forfeitedin terms of section 125 of the Customs Ordinance, ie. on theground that these goods were used for the concealment of thegoods referred to in the 1st cause of action. Thus the seizure asforfeit must be deemed to have taken place on or about the 11thof November, 1969.
Although this letter in substance alleged that the goods refer-red to in the 1st cause of action were seized as forfeit on twogrounds, namely (a) importation or bringing into Sri Lankacontrary to section 43, and (b) as goods landed or passed out ofany ship or warehouse not having been duly entered (Section 107(1)), in the answer filed by the Attorney-General the onlygrounds of forfeiture alleged were that the goods referred to inthe 1st cause of action were imported or brought into Ceyloncontrary to restrictions (section 43), in that they were importedor brought into Ceylon without a licence or permit from theController of Imports and Exports and in regard to the goodsreferred to in the 2nd cause of action that they were used in theconcealment of the other goods. The only dispute then on the 1stcause of action, when the matter was in Court, was whether ornot these goods were covered by an import licence or permit. Ihave already referred to the fact that a licence or permitfor import of goods of the kind referred to in the 1st cause ofaction became necessary only after the 11th of January, 1963. Theassertion of the Customs Authorities and of the Attorney-Gene-ral that these goods were imported without a licence or permitnecessarily involves an assertion that the goods were importedor brought into Ceylon at a time when a licence or permit wasrendered necessary by law for their importation. Thus, it seemsto me some what obvious that the question of lawful importationin the sense of importation under a permit or licence would onlyarise if the goods are shown to have been imported after11.1.1963, and accordingly, the burden of proving that these goodswere imported under the authority of licence or permit wouldfall on the claimant only if the State first establishes that thesegoods were imported after 11.1.1963.
In the case of Attorney-General v. Gnanapiragasam, 68 N.L.R.,P. 49, H. N. G. Fernando, S.P.J., as he then was, took a differentview, in the course of his judgment he said :
“ If then these bars (of gold) must be held on the evidenceto have been imported into Ceylon, the burden of showingthat the importation was lawful was on the plaintiffs (Section152 of Cap. 235)Counsel for the plaintiff has sub-
mitted that there was no prohibition or restriction of tb«'
336
TENNEKOON, C- J.—Attorney-Oereral v. Wimaladharma
import of gold prior to the enactment of the Exchange Con-trol Act in 1953- This position has not been contested by theCrown in the present case, although it is in fact probablethat the importation of gold was prohibited or restricted fora long period under Defence Regulations. But Counsel’s argu-ment which is based on that position cannot succeed. Hesubmitted that the Crown must prove that the importaionof these bars took place after the Exchange Control Actcame into force, and that the burden of showing lawfulimportation need only be discharged upon such proof beingfurnished. Section 152 of Cap. 235 cannot in my opinion beso construed. It is clear that once there is proof of the impor-tation of goods into Ceylon, the claimant must establishaZZ such facts as are necessary to prove lawful importation.One such fact to be established would be the actual time ofimportation, if it is sought to rely on the position that theact of importation at such time would not have beenunlawful. ”
It will be noted that this judgment proceeds on the basis thatwhere goods of foreign origin are seized in Ceylcn, the burdenof proving all facts necessary to establish that the importationwas lawful was on the claimant, and approaching the problem inthat way H. N. G. Fernando, S.P.J. thought that the burden ofproving lawful importation could be discharged by showingeither, (1) that the goods were imported at a time when a permitwas required and a permit had in fact been obtained, or (2) thatthe goods were imported at a time when a permit was notrequired, and that therefore the importation was lawful.
I have earlier pointed out that when there is a seizure of goodsas forfeit, the Customs must be in a position to inform the owneror the person whose goods are seized of the ground or groundsof forfeiture. It is not enough for the Customs Authorities to makea general allegation that the goods are unlawfully imported, forimportation may be unlawful on any one or more of numerouscauses. In Gnanapiragasam’s case, as in this case, the cause offorfeiture was given as importation of goods without a permit,and with respect, I would like to say that H. N. G. Fernando,S.P.J., posed a wrong question. The question that arose was notthe broad question as to whether the gold bars were lawfullyimported, but only the question as to whether the importationof the gold bars was covered by a licence or permit, because theallegation of the Customs Authorities was that they wereimported without a permit. That question presuoposes that atthe date of importation a permit was necessary and it was clearlythe burden of the Crown to prove that the importation was after1953 the ye:.c in which importation of gold came under permit.
TENNEKOON, C- J.—Attorney-General v. Wimaladharma
337
In the same way, having regard to the pleadings and the issuesraised in this case, the substantial issue for the Court to decidewas, were the import, of goods referred to in the 1st cause ofaction covered by an import licence or permit ? The burden ofproving the existence of a permit or licence would only fall onthe plaintiff if there was, first, evidence to show that the goodswere imported at a time when a licence or permit was necessary.
It may be contended that to give this interpretation to section152 would render the section useless in many situations in whichthe Customs Authorities have to act. Every smuggler is notdetected at the time the goods are imported or brougnt intoCeylon ; many goods are smuggled into the country withoutdetection at the time of importation, and in such cases theCustoms Authorities will have no knowledge of the date or placeof importation or landing of the goods. The present case andGnanapiragasam’s case are illustrations of these situations. Thesegoods may have been brought into the Island secreted on theperson of a passenger or concealed in his baggage or concealedin a false-bottom or other similar device, or the goods may havebeen landed from a ship or boat at an unlawful landing place,somewhere on the coast of Sri Lanka. They may have beenimported or brought into the country many years ago or mayhave been brought in quite recently. In such a situation it is tomy mind somewhat illogical for the Customs Authorities to allegethat the goods were brought in without a licence or a permit whenit is not the case that a licence or a permit was always necessary.The necessity for a licence for importation may exist at one time,may not exist at another and may be reintroduced again. I thinkthat in this kind of situation, where the Customs Authoritieshave reason to suspect that the good§ have not come into thecountry regularly, the ground for forfeiture should be section107(1) of the Customs Ordinance and not on grounds such asnon-payment of duties or the absence of a licence or a permit,the need for which varies from time to time. Section 107 (1) readsas follows : —
“ 107(1) If any goods, packages,, or parcels, shall be landed,taken, or passed out of any ship, or out of any ware-house, not having been duly entered, the same shallbe forfeited ”.
Indeed in the Principal Collector’s letter of 11th November,196S, he alleged as the grounds of forfeiture section 43 and section107(1) of the Customs Ordinance. Unfortunately at the stage ofanswer and right through the trial, the ground relied on was onlysection 43. The advantage of using section 107 (1) in this situationis that when a dispute arises as to whether that section has beencomplied with or not, the claimant will have to prove due entry
338
TENNEKOON, C. J.—-Attorney-General v. Wimaladharma
and that involves proof that the goods were brought in a shipto a regular port or landing place, that due entry was made interms of section 47, that duties, if any, have been duly paid, etc.Indeed section 107 contains much of the elements necessary forproof of lawful importation, but since the State chose to proceedon the basis of importation without a licence or permit, it wasnecessary for the State to establish that the importation was ata date when a licence or permit was required by law.
At the trial it was common ground that the goods referred toin the 1st and 2nd causes of action were seized by the CustomsAuthorities. The following matters arose for decision by theDistrict Judge namely,
Was the plaintiff the owner of the goods referred to inthe 1st and 2nd causes of action, at the date of seizure ?
Did the Customs Authorities have reasonable grounds to
suspect that the goods referred to in the 1st cause ofaction were goods imported into Sri Lanka at a datewhen a licence or permit was necessary forthe importation of such goods ?
If so, were the goods referred to in the 1st cause of
action imported under the authority of a licence orpermit?
On these questions the burden of proving the ownership wason the plaintiff. The burden of proving the existence of reason-able grounds for seizure as forfeit or probable grounds for seizurewas on the Attorney-General. The burden of proving the import-ation w*as on the Attorney-General. The burden of proving theneed for a licence or permit at the date of importation was onthe Attorney-General. If that was established then the burden ofproving that the importation was covered by a licence or permitwas on the plaintiff.
At the trial the plaintiff led only the evidence of the personwho managed his shop. His evidence was directed mainly to thequestion of ownership. In cross-examination he was asked aboutthe search conducted by the Customs Officers at the shop, on the22nd of February, 1969. After that search the Customs Authoritiestook away a quantity of 294 wrist watches, 178 wrist watchstraps, and 147 Pilot pens. The witness said that all these articleswere openly displayed in the show cases. Out of the 294 wristwatches the witness identified 82 wrist watches as having beenpurchased locally from persons who came to the shop. He admit-ted that all the watches were of foreign origin. In regard to thewrist watch straps, he admitted that 120 wrist watch straps werelocally purchased, and the balance imported. Of the Pilot pens headmitted that about 10 or 12 were imported, and the balancelocally purchased. In regard to local purchases he mentioned the
TEIvNEKOON, C. J.—■ Attorney-General v. Wimaladharma
339
names of persons who had sold them to the firm. He said that thereceipts would be found in the files which the Customs Officershad taken possession of. The witness also testified to the fact thatwatches that had been unlawfully imported were often auction-ed by the Customs Authorities. There would be in the countrymany wrist watches in respect of which there was no evidenceof lawful importation or indeed of their having been importedunder a licence. He also said that among the watches in his shopthere would be some which have remained in the firm sometimesfor as long as 15 years, because some of those were not popularwith the public. The witness had later been questioned at theCustoms premises, and after a period of nearly 9 months theplaintiffs were informed that the goods referred to in the 1stcause of action were forfeited under sections 43 and 107 of theCustoms Ordinance, and that the goods referred to in the 2ndcause of action were forfeited as having been used to conceal theother goods.
The only witness for the Attorney-General was a DeputyCollector of Customs who was called mainly to produce a state-ment made by the plaintiff’s witness, the Manager of his shop.This Deputy Collector stated that he knew nothing of the searchconducted on the 22nd of February, 1969, that it was not he whoauthorised it, nor was he one of the persons who went on thesearch. He also stated that he wias not the officer who conductedthe inquiry, as a result of which it was decided to forfeit thegoods in question. He said the inquiries were conducted by oneMr. de Neise, an Assistant Collector. This witness was thus in“no position to state on what ground Mr. de Neise suspected thatthose goods were liable to forfeiture. No other witness was calledby the defendant appellant. The State scrupulously avoidedcalling anyone who was in a position to state why these goodsw"ere suspected to have been imported without a licence or per-mit. The learned District Judge held that the plaintiff-respon-dent was the owner of the goods, that the seizure was unlawful,that the goods were seized without reasonable or probable cause,and that there was no burden on the plaintiff-respondent toprove that the goods were imported under a licence or permit,as the defendant appellant had failed to discharge the burdenthat lay on him of proving the goods were imported at a timewhen a licence or permit was necessary.
In my opinion, I think, the learned District Judge was right inholding that there was no proof of lawful seizure for the defen-dant-appellant had failed to place any evidence before the Courttending to show any reasonable ground to suspect that the goodshad been unlawfully imported, and the defendant-appellant hadalso failed to establish that the goods were imported afteir
340PATIIIRAttfA, J.—Attorney-General v. Witmladliarma
11.1.1963. I also accept the learned District Judge’s finding thatin this situation there was no burden on the plaintiff-respondentto prove that the importation of these goods was covered by alicence or permit. I further accept the learned District Judge’sfinding that the goods referred to in the 2nd cause of action werenot by any manner or means used for the purpose of concealmentof the goods referred to in the 1st cause of action.
To turn now to the forfeiture of the sum of Rs. 31,845 underSection 129 of the Customs Ordinance.
“ Every person who shall be in any way knowingly con-cerned in any manner dealing with goods liable to duties ofCustoms with intent to defraud the revenue of such dutiesshall forfeit either treble the value of the goods, or thepenalty of Rs. 1,000 at the election of the Collector ofCustoms ”.
The burden of proving that no duty had been paid on thesegoods, i.e. on the goods referred to in the 1st cause of action, wasclearly on the Attorney-General. Section 152 has no application tocases arising under section 129. Section 152 is confined to thosecases where a claimant for goods seized under the Customs Ordi-nance sues, as owner, the Attorney-General or the officer whoseizes the goods ; the character in which a person becomes liableto forfeiture of a penalty under Section 129 is not as owner orclaimer of the goods, but as a person alleged to be knowinglyconcerned in dealing with uncustomed goods. The fact that bothmatters came up in one action does not mean that the Attorney-General can utilise section 152 to discharge the burden that fallsupon him to prove that duties had not been paid on these goods.The claim for the sum of Rs. 31,845 was made by the Attorney-General as a claim in reconvention, and the question of burdenof proof arising on that cause of action must be treated in thesame way as if the Attorney-General has instituted a separateaction in terms of section 160 of the Customs Ordinance for therecovery of the penalty imposed by section 129. There was alsono evidence on the question whether any competent officer ofCustoms had made any election between a penalty of Rs. 1,000and a penalty of three times the value of the goods. In the resultI hold that the learned District Judge was right in dismissing theAttorney-General’s claim in reconvention.
For the reasons set out in this judgment I would dismiss theappeal with costs.
Pathirana, J.—
The plaintiff-respondent who is the sole proprietor of the busi-ness “Wirnaladharma Brothers” carries on the business of dealerinter alia, in wrist-watches, wrist-watch straps and fountain pens
PAT .tLLKAN A, J.—Attorney-General v- Wimaladharma
341
at 120, Front Street, Colombo. On 22.2.1969 Customs officers visit-ed the shop of the plaintiff, acting on authority contained indocument PI under Section 128 of the Customs Ordinance, andtook into custody 294 wrist-watches, 178 wrist-watch straps and147 Pilot pens as goods liable to be seized under the provisionsof the Customs Ordinance. Subsequently, after inquiry, by letterdated 11.11.1969 (P4) the Principal Collector of Customs inform-ed the plaintiff-respondent that the articles were forfeit underSection 43 and Section 107 of the Customs Ordinance read withImport and Export (Control) Act and the regulations made thereunder under Section 125 of the Customs Ordinance. Further,that under Section 129 of the Customs Ordinance a forfeiture ofa sum of Rs. 31,845 being treble value of 82 wrist-watches, 120wrist-watch straps, and 137 Pilot pens forfeited was imposed onthe plaintiff.
The plaintiff instituted this action in the District Court ofColombo against the Attorney-General, the defendant, asrepresenting the Crown on three causes of action.
On the first cause of action he alleged that the purportedseizure on 11.11.1969 by the Assistant Collector of Customs underthe Customs Ordinance' and the forfeiture of 82 wrist-watchesvalued at Rs. 8,200, 120 wrist-watch straps valued at Rs. 360, and137 Pilot pens valued Rs. 2,055 owned by him was illegal, wrong-ful and unlawful as the goods were not liable to seizure.
On the second cause of action he averred that the seizurens forfeit by the Assistant Collector of Customs of 212 wrist-watches valued at Rs. 21,200, 58 wrist-watch straps valued atRs. 580, and 10 pilot pens valued at Rs. 300, owned by him wasillegal, wrongful and unlawful as the goods were not liable to-seizure.
On the third cause of action he pleaded that the forfeiture■of Rs. 31,845 imposed by the Assistant Collector of Customsbeing treble value of 82 wrist-watches, 120 wrist-watch strapsand 137 Pilot pens referred to in the first cause of action wasillegal, wrongful and unlawful.
He asked for a declaration that he was the owner of the saidgoods and that these goods be restored to him ; on failure, fora judgment in a sum of Rs. 10,615 and Rs. 22,080 being the value-of the goods, for a declaration that the seizure and forfeiture ofthe goods were illegal, wrongful and unlawful and for adeclaration that the imposition and the forfeiture of the sumof Rs. 31,845 was illegal, wrongful and unlawful.
The defendant filed answer denying that the plaintiff wasthe owner of the said goods, and pleading that the AssistantCollector of Cusoms lawfully seized the said goods under theCustoms Ordinance. The defendant further pleaded that the
342
P AT HTK AN A, J.—Attorney-General e. Wimaladharma
goods referred to in the first cause of action were imported orbrought into Ceylon contrary to the restriction contained inSections 12 and 43 of the Customs Ordinance read with theprovisions of the Import & Export (Control) Act and the regu-lations made thereunder, that the goods seized and becameforfeit under the provisions of the Customs Ordinance and theImport & Export (Control) Act and the regulations madethereunder.
in regard to the goods referred to in the second cause ofaction, the defendant averred that they were made use of inthe concealment of the goods referred to in the first cause ofaction, and thereby became forfeit under Section 125 of theCustoms Ordinance.
In regard to the imposition of the sum of Rs. 31,845 beingtreble the value of the goods under Section 129 of the CustomsOrdinance, the defendant pleaded that the plaintiff knowinglywas concerned with in dealing with the goods referred to inthe first cause of action which were liable to duties of Customswith intent to defraud the revenue of such duties contrary tothe provisions of Section 129 of the Customs Ordinance.
The defendant claimed in reconvention the said sum ofRs. 31,845. In the replication the plaintiff joined issue with thedefendant on the several denials in the answer and denied allthe averments in the answer that were inconsistent with theplaint.
The learned District Judge entered judgment for the plaintiffas prayed for. The Attorney-General appeals to this Courtagainst this judgment and decree.
It is common ground that by reason of the regulation con-tained in Gazette No. 13447 of 11.1.1963 the importation of thearticles in question into Ceylon from this date was restricted ex-cept on a licence by the authorities. It was not disputed thatprior to this Gazette Notification there were no restrictions onthe import into this country of the wrist-watches and other arti-cles referred to in the plaint. There was also no dispute as to thevalue of the goods seized and forfeited.
The learned District Judge’s findings may be summarised a»follows : —
that the plaintiff is the owner of the goods, or the articles
in question ;
that the burden was on the Crown to prove that these
goods were imported into this country ;
PA T Hi RAN A, J.—Attorney-General v. Wim aladharma
343
that despile the provisions of Section 152 of the Customs
Ordinance the burden was on the Crown to establishthat the goods were imported into this country after11.1.1963 the date of the Gazette Notification imposingthe restrictions.
as the defendant failed to prove that the wrist-watches
were imported after 11.1.1963 they were not liable toseizure ;
that the seizure of the articles by the Customs was ille-
gal, wrongful and unlawful;
that the onus of proving lawful importation on the part
of the plaintiff did not arise till the defendant provedthat the articles were imported after 11.1.1963, the daythe restrictions came into operation.
He also held that the evidence did not establish that the articlesreferred to in the second cause of action were used to concealthe articles referred to in the first cause of action.
In any event, in view of his finding that the seizure and for-feiture of the articles referred to in the first cause of action wasillegal, wrongful and unlawful, this question did not anse fordecision.
In view of his finding that the seizure of the articles referredto in the first cause of action was illegal wrongful and unlawful,the question whether the plaintiff was knowingly concernedwith dealing with the goods referred to in the first cause ofaction with intent to defraud the revenue contrary to the provi-sions of Section 129 of the Customs Ordinance did not arise.
It will be useful at this stage to reproduce Section 152 of theCustoms Ordinance :
“ If any goods shall be seized for non-payment of dutiesor any other cause of forfeiture, and any dispute shall arisewhether the dut:es have been paid for the same, or whetherthe same have been lawfully imported or lawfully laden orexported, the proof thereof shall lie on the owner or claimerof such goods, and not on the Attorney-General or the officerwho shall seize or stop the same. ”
The learned District Judge in coming to the conclusion thatdespite the provisions of Section 152 the burden of proving thatthe goods were lawfully imported was placed on the owner orcorner of such eoods and not on th° Attorney-General, or theofficer who seized the same, relied on the judgment of Basnayake
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PATHIRANA, J.—Attorney-General v. Wimaladharma
C. J. in The Attorney-General v. Lebbe Thamby. 61 N.L.R. 254and in particular the following passage at page 256 :
“ In the instant case in my opinion the Crown has failed,to establish that the gold in question was imported on orafter the relevant date or at any time. The Customs Ordi-nance is a penal enactment which imposes severe penaltieson those who violate its provisions. The Crown must there-fore establish any breach of those provisions beyond rea-sonable doubt as in a criminal prosecution. The onus ofproving that the gold bars were imported being on theCrown it should have established that fact beyond reasona-ble doubt. It has failed to do so. The onus of proving lawfulimportation does not therefore lie on the respondent. ”
Basnayake, C.J., in this case was considering Section 144 (pre-sent Section 152) of the Customs Ordinance in regard to thequestion of the burden of proof of importation of any goodsseized for non-payment of duties, or any other cause of forfei-ture. The argument was no doubt raised in appeal by theclaimant that the gold bars in question were imported after therelevant date, namely', 15.8.1953 when the Exchange Control Actcame into operation after which date the importation of goldexcept with the permission of the Central Bank of Ceylon wasprohibited.
It was conceded by the Crown that the burden of proving law-ful importation would not lie on the claimants unless the Crownproved that the gold bars were imported. It was also conceded bythe claimant that gold imported after the relevant date was lia-ble to seizure and forfeiture under the Customs Ordinance, with-out the requisite permit, a contention similar to that put for-forward in the current case.
Basnayake, C.J., held that the burden of proving that thegoods in question were imported was on the Crown, but he heldon the facts that he was not satisfied that the gold bars wereimported on or after the relevant date, or at any time, as herewas evidence that gold bars are locally made and can be im-pressed locally with similar characters as those in imported goldbars. As the Crown had failed to prove that the gold bars wereimported, the onus of proving lawful importation, therefore,did not lie on the claimant. This case is therefore not an autho-rity for the conclusion reached by the learned District Judgethat the burden of proving lawful importation was on the CrownThis case only lavs down that the burden of proving importa-tion is with the Crown.
PATH i kATNTA, J.—Attorney-General v. Wimaladharma
346
In regard to the case of The Attorney-General v. Gnanapiraga-sam, 68 N.L.R. 49, cited by learned Crown Counsel the learnedDistrict Judge observed that the facts of the present case wereentirely different from the facts in that case. In The Attorney-General v. Gnanapiragasam, the plaintiffs asked for a declara-tion against the Attorney-General that they were entitled toeight bars of gold which were seized by the Collector of Customsand forfeited under the relevant provisions of the Customs Ordi-nance and the Exchange Control Act. The learned District Judgeheld that the gold bars were not imported, but that the plaintiffhad purchased old jewellery and converted them into slabs ofgold. H. N. G. Fernando, SPJ. in reversing the findings of theDistrict Court and holding that the gold bars in question werenot lawfully imported made the following observation: —
“ If then these bars must be held on the evidence to havebeen imported into Ceylon, the burden of showing that theimportation was lawful was on the plaintiffs (Section 152 of
Cap. 235) — Counsel
for the plaintiff has submitted that there was no prohibitionor restriction of the import of gold prior to the enactment ofthe Exchange Control Act in 1953. This position has not beencontested by the Crown in the present case, although it is in* fact probable that the importation of gold was prohibited orrestricted for a long period under Defence Regulations. ButCounsels argument which is based on that position cannotsucceed. He submitted that the Crown must prove that theimportation of these bars took place after the Exchange Con-trol Act came into force, and thaf the burden of showinglawful importation need only be discharged upon such proofbeing furnished. Section 152 of Cap. 255 cannot in my opi-nion be so construed. It is clear that once there is proof ofthe importation of goods into Ceylon, the claimant mustestablish all such facts as are necessary to prove lawful im-portation. One such fact to be established would be theactual time of importation, if it is sought to rely on the posi-tion that the act of importation at such time would not havebeen unlawful. ”
The contention put forward that the Crown must provethat the importation of the articles took place after the restric-tions came into force and that the burden of showing lawfulimportation on the claimant need only be discharged upon suchproof being furnished, was rejected by H. N. G. Fernando, SPJ.
If we are to follow the judgment of H. N- G. Fernando, SPJ.in The Atto-mey-General v. Gnavaviragasam, we have to takethe view that the learned District Judge had misdirected himself
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PATHIRANA, J.—Attorney-Genera! v. Wimaladharma
in law in placing the burden, despite the provisions of Section152 of the Customs Ordinance, on the Crown to establish thatthe importation of the articles in question took place after therestrictions were imposed on 11.1.1963. H. N. G. Fernando,SPJ. clearly states that “ One such fact to be established by theclaimant would be the actual time of importation, if it is soughtto rely on the position that the act of importation at such timewould not have been Unlawful. ”
At the argument it was also not disputed that the articles inquestion came within the restrictions imposed by the relevantGazette Notification.
Mr. H. L. de Silva, learned Counsel for the plaintiff-respondentsought to justify the findings of the learned District Judge onthe ground that there was an initial burden on the defendant toprove that the articles in question were liable to seizure and for-feiture by proving that they were imported after the restrictionscame into operation on 11.1.1963. This submission would in effectbe an invitation to us to reconsider the judgment of this Courtin Attorney-General v. Gnanapiragasam (supra.) Mr. de Silvabuttressed his argument by the submission that before the bur-den of proving under Section 152 of the Customs Ordinance thatthe goods were lawfully imported was shifted to the plaintiffthe defendant had to discharge what he described as the eviden-tial burden by adducing evidence that the goods were liable toseizure and forfeiture under Section 47 and Section 107 of theCustoms Ordinance, in that they were imported after 11.1.1963.This submission is based on the two distinct meanings which areattributed to the phrase “burden of proof”. The burden of proofin the first sense is a matter of law or pleadings, that is, the bur-den of establishing a case whether by a preponderance of evi-dence or beyond reasonable doubt. This burden is also referredto as the ‘legal burden’. The burden of proof in the second sense,which was the one referred to by Mr. H. L. de Silva is aburden of adducing evidence which is referred to as the ‘eviden-tial burden’.
The cases cited at the argument before us both in support of andagainst Mr. H. L. de Silva’s submissions may broadly be broughtunder four categories.
Firstly that the presumption of innocence casts the burden ofproving every ingredient of an offence even though negative inform on the prosecution. In the Sanitary Inspector v. Thannama-lai Nadar, 55 N.L.R.. 302. the '’ba~<*e a^ain^t the accused was oneunder the Quarantine and Prevention of Diseases Ordinancealleging that he did “being permanently or temporarily resident
PATHTRANA, J.—Attorney-General c. Wimaladharma
347
in a building in which was a person affected with a contagiousdisease, to wit, small pox, failed to inform the proper authorityforthwith in contravention of Regulation 46 of the Regulationsmade under the Ordnance”, Nagaiingam, A. C. J. held thatSection 106 of the Evidence Ordinance did not cast on the accu-sed the burden of proving that he had given information to theproper authority until some prima facie evidence at least hadbeen first led by the prosecution of the failure on his part to givethe information. The presumption of innocence casts on the pro-secution, the burden of proving every ingredient, even thoughnegative in form. In this connection, two other examples cometo our mind : In the case of the offence of rape in a criminaltrial, the prosecution must establish that the sexual assault tookplace on the victim without her consent, although the ingredient‘without consent’ is a negative ingredient—R. v. Balakiriya 46,N.L.R. 83- Similarly, in an action for malicious prosecution, theburden is throughout on the plaintiff to establish want of reaso-nable or probable cause for instituting the prosecution althoughin one sense it is an assertion of a negative.—Abrath v. NorthEasternRailway Co.—11 Q. B. 440.
The second category is where the Statute without expresslyproviding that the burden is on an accused person, but while des-cribing the offence omits all mention of the negative element butsets out exceptions to the offence, like e.g. authority, consent,lawful excuse, proviso, or qualification where the burden ofproving the exception, lawful excuse, qualification, etc., is caston the accused.
The case of the Mudaliyar, Pitigal Korale North v. Kiri Banda,12 N.L.R. 304, Full Bench, deals with a prosecution under Section20 of the Forest Ordinance. It was held that the burden of prov-ing that the forest where the offence is alleged to have been com-mitted “ is not included in a reserved or village forest ” lies oilthe accused, as these words wej© merely another way of saying,“unless it is included in a reserved or a village forest”.
In The Solicitor-General v. Dharmasena. 67 N.L.R. 68, theaccused was prosecuted under Section 18 of the Excise Ordinancefor the sale of an excisable article without a licence. Nowhere inthe evidence of the witnesses was there any statement to showthat the accused had no licence. T. S. Fernando, J. held that theEvidence Ordinance itself provides the answer to the questionthat was raised in the appeal as to whether the burden was onthe prosecution or the accused to prove that the accused hada licence. Having referred to Sections 105 and 106 of the
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PATHIRANA, J.—Attorney-General v. Wimala lharma
Evidence Ordinance and the English cases of R. v. Oliver (1943)2 A-E.R. 800, and John v. Humphreys, (1955) 1. A.E.R. 793, heobserved as follows:
– “ While the question before me can be disposed of by areference to our own Evidence Ordinance, it is of some in-terest to note that even under the English law of Evidencewhere, generally speaking, the burden of proof of a criminalcharge lies upon the prosecution, the position is that thereare some facts peculiarly within the knowledge of the accu-sed that the prosecution is not required to give even primafacie evidence on the point. ”
In R. v. Oliver, the appellant was charged with supplying sugarotherwise than under the terms of a licence, permit, or autho-rity granted by the Minister of Food in contravention of certainregulations, it was held that the onus was on the accused-appel-lant to prove that he had a licence as being a fact peculiarlywithin his own knowledge, and the prosecution was under nonecessity of giving prima facie evidence of the non-existence ofa licence.
In John v. Humphreys (1950) 1 A.E.R-, 793, the accused wascharged with driving a motor vehicle on a road without a licencecontrary to Section 4 (1) of the Road Traffic Act of 1930 whichprovides “ that a person shall not drive a motor vehicle on aroad unless he is the holder of a licence.” It washeld that the burden of proving that the accused had a licencelay on him, because that fact was peculiarly within his ownknowledge and in the absence of proof on his part that he had alicence the justices ought to have convicted him.
In Regina v. Evens (1967) 1. A.E.R. 322, the accused was foundin possession of drugs. At his trial with being in unauthorisedpossession of drugs, it was he 1(1 that once the prosecution hasproved that the accused was in-possession of the drugs withinthe meaning of the Act, the onus of establishing the statutorydefence which was enacted in the words “ unless it is in his pos-session by virtue of the issue of a prescription by a duly quali-field medical practitioner, etc. ” lay on the defendant, the factwhether or not he came within * excepted categories ’ beingequally within his own knowledge.
These cases will be covered by Section 105 of our EvidenceOrdinance.
PATHURANA, J.—Attorney-General v. Wimaladharma
349
The third category is where the Statute, while expressing theexception uses words to the effect that the burden of establishingthe exception shall be on the accused ; Section 468, Section 392Band Section 449 of the Penal Code, are examples.
In Regina v. Fitzpatrick (1948). 1 A.E.R., 769, the Customs Con-solidation Act, 1876, section 186, imposed penalties on persons
“ who shall be knowingly concerned in in any manner
dealing withgoods ” the import of which is prohibited or
which are liable to duty “with intent to defraud” the Crown“ of any duties due thereon, or to evade any prohibition ” appli-cable to such goods. By section 259 : “ If in any prosecution inrespect of any goods seized for non-payment of duties, or anyother cause of forfeiture, or for recovering any penalty orpenalties under the Customs Acts, any dispute shall arisewhether the duties of customs have been paid in respect of such
goods, or whether the same have been lawfully imported
then and in every such case the proof thereof shall be on the de-fendant in such prosecution. ”
Section 259 is worded almost similarly to our Section 152 of theCustoms Ordinance. It was held in this case that the onus is puton the defendant where there is a dispute in the proceedingswhether duty has been paid or whether goods were lawfullyimported. The obvious reason for this provision is that thesefacts must be within the'knowledge and often within the exclu-sive knowledge of the defendant.
The fourth category of cases is one dealt with in Section 152of the Customs Ordinance where the Statute not only puts theburden of proving a matter on one party, but expressly relievesthe burden of proving such matter on the other party. Section152 a rare example states that the burden of proving whetherthe goods have been lawfully imported shall lie on the owneror claimant of such goods and not on the Attorney-General, orthe officer who seizes the same.
The case we are presently dealing with is a civil case wherethe burden of proof in regard to the issues in the case are settledon the pleadings or the substantive law. The decisions that havebeen cited and the argument based on them strictly speakingwill not be applicable in a civil case. In a criminal case, both inEngland and in our country, the procedure is for the prosecutionto begin and although the accused is a competent witness he isnot a compellable witness. In a criminal case the prosecutionhaving to prove its case beyond reasonable doubt, and as in thecase referred to by Nagalingam, ACJ. in 55 N.L.R., 302, the pro-secution will therefore have to establish the negative ingredient
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PATHTRANA, J.—Attorney-General v. Wimaiadharmn
if it is an essential element in the case. On the other hand, if wetake the facts in the 55 N.L.R., 322, case and the Statute hadenacted that any person being permanently or temporarily resi-dent in a building in which a person affected with a contagiousdisease, to wit, small pox, failed to inform the proper authorityforthwith, shall be liable to a penalty recoverable in a civilcourt, if a person who so fails to inform the proper authorityis sued in a civil court, if he takes up the plea that he had in-formed the proper authority, then clearly the burden is on him.Or, we might take the example given by Channel, J. in Over v.Harwood (1900) 1 Q.B., 803. In this case, upon the hearing of asummons under Section 31 of the Vaccination Act, 1867 againstthe parent of a child for non-compliance with an order of justi-ces directing him to have his child vaccinated, it was held thatthe burden of proving non-compliance was on the prosecution.Channel, J. observed : “ If it were a civil proceeding, the burdenof proof would undoubtedly be on the defendant, but that is notthe rule in a criminal case, which the present apparently is ; theprosecution therefore must give some evidence of the negativeproposition, unless a question arises on some exception, exemp-tion, proviso, excuse, or qualification …”
In fact, in this case issues 13 to 17 germane to the questionsof importation and lawful importation have been raised by theplaintiff, but had not been answered by the learned DistrictJudge. The issues read as follows : —
No. 13. Have the goods referred to in paragraph 3 of theplaint been imported, or brought into Ceylon ?
No. 14. If so, on what date, or dates, were they imported intoCeylon ?
No- 15. Were there in force restrictions against their importinto Ceylon on the said date or dates ?
No. 16. Were there valid restrictions on such date or dates?
No. 17. If so, have the goods referred to in paragraph 3 beenimported, or brought into Ceylon, contrary to suchrestrictions ?
If the learned District Judge had not misdirected himself asto the burden of proof regarding lawful importation, it may verywell be that he would have answered issues Nos. 13 and 17.
The question whether the concept of evidential burden ofproof can be imported into our law was discusssed by Lord Dev-lin in the Privy Council case of Jayasena v. Queen, 72 N.L.R.313 In this case, the accused who was charged with murder, ad-mitted at the trial that the deceased died of wounds definitely
PAT HI RAN A, J.—Attorney-General v. Wimaladhaarm
351
inflicted on him with the intention to kill and his defenceentirely was that he was acting in self defence. An argu-ment was put in the Privy Council that it would be sufficientthat if the accused gave some evidence in support of his case, andthat the burden imposed by Section 105 of the Evidence Ordi-nance was not a burden of establishing this case, but of adducingevidence. The argument, in effect, sought to disapprove thedecision of this Court in King v. Chandrasekera, 44 N.L.R. 97.
Lord Devlin at page 316, made the following observations:
“Their Lordships do not understand what is meant by thephrase ‘ evidential burden of proof They understand ofcourse that in trial by jury a party may be required to ad-duce some evidence in support of his case, whether on thegeneral issue or on a particular issue, before that issue is leftto the jury. How much evidence has to be adduced dependsupon the nature of the requirement. It may be such evidenceas, if believed and if left uncontradicted and unexplained,could be accepted by the jury as proof. Or it may be, as inEnglish Law when on a charge of murder the issue of provo-cation arises, enough evidence to suggest a reasonable possi-bility. It is doubtless permissible to describe the requirementas a burden and it may be convenient to call it an evidentialburden. But it is confusing to call it a burden of proof.Further, it is misleading to call it a burden of proof, whetherdescribed as legal or evidential or by any other adjective,when it can be discharged by the production of evidence thatfalls short of proof. The essence of the appellant’s case isthat he has not got to provide any sort of proof that he wasacting in private defence. So it is a misnomer to call what-ever it is that he has to provide a burden of proof,—a mis-nomer which serves to give plausibility but nothing more toMr. Kellock’s construction of s. 105. ”
S. 3 of the Evidence Ordinance deals with proof in thefollowing terms :
“ A fact is said to be proved when, after considering thematters 'before it, the Court either believes it to exist orconsiders its existence so probable that a prudent manought, under the circumstances of the particular case, to actupon the supposition that it exists. ”
Their Lordships do not think that proof means anything diffe-rent in English law. But at any rate in the law of Ceylon, wherethe mode of proof is clearly spelt out, it is impossible to supposethat there can be more than one kind of burden of proof or that
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P AT HXRAN A, J.—Attorney-General v. Wimaladharma
the burden imposed by s- 105 can be anything less than proof inaccordance with s. 3. Their Lordships will not elaborate furthersince the incongruities of any such supposition are fully ex-posed in the judgments of the majority in FL v. Chandrasekraparticularly the judgment of Soertsz, J.”
Lord Devlin thereafter dealt with Section 106 of the EvidenceOrdinance, and stated at page 319 as follows:
“Their Lordships are concerned with s. 106 only to seewhether it gives any support to Mr- Kellock’s argument ons. 105. He submits that the right solution lies in treatings. 106 as imposing only an evidential burden of proof; andthat if s. 106 has to be treated in that way, why not alsos. 105? This submission gets no help from the two authoritiescited. In these cases the Board said simply and without ela-boration that the section does not cast upon an accused theburden of proving that no crime has been committed. TheirLordships in no way dissent from this conclusion. It maywell be that the general principle that the burden of proofis on the prosecution justifies confining to a limited cate-gory facts “ especially within the knowledge ” of an accused;but their Lordships do not consider that it can alter the bur-den of proof either in s. 105 or s. 106.”
The two authorities cited are Attygalle n. R. 37 N.L.R. 337,and Serieviratne v. R. 38 N.L.R. 208.
We are inclined to agree with Lord Devlin when he observedthat matters relating to burden of proof and the manner ofdischarging that burden are clearly spelt out in our EvidenceOrdinance.
The burden of proving lawful importation under Section 152of the Customs Ordinance is on the claimant and this no doubtis in conformity with the rationale underlying Section 106 of theEvidence Ordinance that when a fact is within the knowledgeof any person, the burden of proving that fact is upon him. But.in our view Section 152 of the Customs Ordinance can be consi-dered without reference to Section 106 of the Evidence Ordi-nance, as the former section clearly and in unambiguous lan-guage puts the burden of proving lawful importation on theclaimant and relieves the Attorney-General or any other officerof any such burden-
We are, therefore, of the view that the decision of this Courtin The Attorney-General v. Gnanapiragasam, lays down the cor-rect construction of Section 152 of the Customs Ordinance whichputs the burden of proving lawful importation on the claimant.Lawful importation may not only be proved by the production of
PAT HI KAN A, J.—Attorney-General v. Wimalarlharma
353
a permit by the claimant, but also by proving that the goodswere imported prior to the date on which the restrictions cameinto operation.
The learned District Judge had therefore misdirected himselfin holding that despite Section 152 of the Customs Ordinancethere was an initial burden on the Crown to prove that the goodsin question were imported after the restrictions came into ope-ration on 11.1.1963 and as the defendant had failed to dischargethis burden the seizure and forfeiture of the goods in ques-tion were illegal, wrongful and unlawful.
An argument was addressed to us by Mr. H. L. de Silva that ifthe burden in these matters is so strictly placed on the claimantit will lead to unwarranted harassment of ordinary citizens whohave in their possession imported articles like wrist-watches andradio sets as they could be called upon at any time by the Cus-toms officers to prove that they were either lawfully importedor Customs duties have been paid on them. There may be caseswhere although these purchases have been bona fide made bycitizens, nevertheless, they are not in a position to prove thatthey were either lawfully imported or Customs duties have beenpaid on them. The answer to this is given by Lord Goddard, C. J.in R. v. Cohen (1951) 1 A. E. R. 203 at page 205:
c: Though the powers of Customs officers are always usedwith discretion, it is in law possible for them to require any-one, be he trader or not, who has dutiable goods in his pos-session to show that duty had been paid. If the person chal-lenged cannot prove payment, it does not follow that hemust be taken to have committed the offence of what forconvenience we will call unlawful harbouring. He will notbe guilty unless he knew that duty had not been paid”
“ A simple way of proving lack of knowledge is to provethat the goods were bought in the ordinary course of trade.If a man buys a box of cigars in a shop at the ordinary price,why should it be supposed that he knew they had beensmuggled, if, in fact, they had been ? In the course of his.summing-up the deputy chairman quoted a passage from arecent judgment of this Court in R. v. Fitzgerald (1948), iriwhich I said :
“ If a man buys something from a trader in the ordi-nary way (it does not matter whether it is wholesale orretail), you would presume that he has bought it honestlyand that the duty on it has been paid. ’
354
PATHIRANA, J.—Attom y-General v. Wimaladharrra
It would, perhaps, have been more accurate if I had said:
* that he had no knowledge or reason to believe that the dutyhad not been paid- ’ ”
The question next is whether if the burden is placed on theplaintiff of proving lawful importation, the evidence led by theplaintiff in this case established lawful importation. No doubt anappeal court on an appeal in a case tried before a Judge aloneshould not lightly differ from a finding by a trial judge on aquestion of fact, but as observed by Lord Reid in Benmax. u. Aus-tin Motor Co. Ltd., (1955) 1 A.E.R., p. 326 at 329 :
“ But in cases where there is no question of the credibi-lity or reliability of any witness, and in cases where thepoint in dispute is the proper inference to be drawn fromproved facts, an appeal court is generally in as good aposition to evaluate the evidence as the trial judge, and oughtnot to shrink from that task, though it ought, of course, togive weight to his opinion.”
We are of the view that in view of the serious misdirection asto the burden of proof on the part of the learned District Judge,this is an appropriate case where we should review the findingsof fact of the learned District Judge, whether (a) the goods wereimported into this country, (b) whether they were lawfully im-ported.
Regarding the ownership of the goods we do not think thereis any difficulty in agreeing with the District Judge that theplaintiff was the owner of the goods seized by the Customs on11.11.1969. There is ample evidence to support this. The learnedState Counsel in his argument on this did not seriously contestthis question.
Also regarding the 212 wrist-watches, 58 wrist- watch straps,and 10 Pilot pens referred to in the second cause of action, thereis evidence that these articles were originally seized in 1967 bythe Customs and returned to the plaintiff and they were dis-played with the goods referred to in the first cause of action.These goods were displayed openly and the element of conceal-ment is absent. Learned State Counsel also concedes that thesegoods were lawfully imported, as such he conceded that theplaintiff was entitled to succeed on the second cause of action.
We have therefore now to deal with the question whether the82 wrist-watches, 120 wrist-watch straps and 137 Pilot pens re-ferred to in the first cause of action were lawfully imported.
PAT HT RAN A, J.—Attorney-Oener. I v. Wimaiadhorma
355
The Crown to succeed must prove that these goods were im-ported into this country, and on discharging that burden it wasfor the plaintiff to establish that these goods were lawfully im-ported. We are of the view that being a civil case there is noburden on the parties to prove their cases with the same strictproof as in a criminal case, but the standard of proof in a civilcase, viz., by a balance of probabilities, will suffice.
We are satisfied that on the evidence given by U. D. Kula-singhe, manager of plaintiff’s establishment that the 79 wrist-watches, 120 wrist-watch straps and 137 Pilot pens referred toin the first cause of action were imported articles. Kulasingheis the manager of the plaintiff’s firm in charge of the shop whichwas raided by the Customs- The plaintiff did not give evidencebut called Kulasinghe as his only witness. Kulasinghe had joinedthe plaintiff’s firm in 1957 as a sales representative and he wasthe manager of the firm from 1961. According to him these arti-cles were locally purchased. He sorted out of the 294 watchesthat were seized by the Customs, 82 as being locally purchased,and he said that except for the 3 ladies Nelson wrist watches,the remaining 79 were imported. Regarding the 120 wrist-watchstraps, he said that they were not locally made, but they werelocally purchased and that he did not buy any brands whichwere locally manufactured. Regarding the 137 Pilot penshe said that they were purchased from L. A. Edwin, a formeremployee and that they could not have been locally made, butwould have been imported because the prices were h'gh.
In view of our finding that the goods were imported articles,the burden is on the plaintiff to prove that they were lawfullyimported. Kulasinghe has stated that he bought these articles onbehalf of the plaintiff. His position was that they were importedbefore 1963 or it came through the Customs and as such he wassatisfied that they were lawfully imported as they were importedeither before 1963 or purchased at the Customs sales. In cross-examination he stated as follows : —
“Q: You say that they could have been lawfully importedbefore 1963, or purchased at the Customs sales ?
A : Yes.
Q: How did you satisfy yourself that they were importedbefore 1963, or sold at Customs sales ?
A: I was satisfied with what the brokers said.
■Q : You were not concerned with making any furtherinquiries ?
A : No.343
PATHXRA-NA, J.—Attorney-General v. Wimaladharma
Q: l tak-P- it that you were aware that the smuggling ofwatches was rampant in the country ?
A : Yes. ”
This witness has been the manager of the plaintiff’s firm from1961. The firm is a well established firm importing clocks andwatches, owning a factory for manufacturing and assemblingwrist watches. The shop had been raided by the Customs inOctober 1967, and 342 wrist watches were seized and returned-In 1962 the firm’s stores at Kurunegala were raided by the Cus-toms. In these circumstances, the plaintiff’s manager Kulasingheshould have been more circumspect and exercised greater cau-tion in purchasing these goods from the brokers. No receiptshave been produced for these purchases. The two persons whowere alleged to have sold these articles, namely, Edwin, an ex-. employee, and Munasinghe, the broker, have not been called aswitnesses by the plaintiff- These witnesses were known to theplaintiff, and therefore if in fact these articles were purchasedat the Customs sales, or imported before 1963, their evidencecould have been obtained. For the same reasons evidence couldhave been obtained if the Customs duties have been paid forthese articles. It is difficult to accept the explanation given byKulasinghe that these articles were purchased from the brokersas imported before 1963 or purchased at the Customs sales inview of the statement made by Kulasinghe to Mr. G. Cumarana-tunge, the Deputy Collector of Customs, who recorded his state-ment in the early hours of the morning on the 23rd of September1969, at the Customs Preventive Office at Fort. When extracts ofthese statements Dl, D2. D2b, D2c, and D2d were put to Kula-singhe in cross-examination he said that these statements wereincorrect. Mr. Cumaranatunge was the only witness called bythe defendant. He narrated the circumstances under which Kula-singhe made his statement. He testified to the fact that after hehad recorded the statement of Kulasinghe, Kulasinghe initialledall the alterations and corrections in his statement. These state-ments that have been proved to have been made by Kulasinghenot only serve to discredit Kulasinghe’s evidence that they werearticles either imported before the ban came in 1963 or pur-chased at the local Customs sales, but in our view are relevantas admissions against the plaintiff under Section 18 (1) and Sec-tion 21 of the Evidence Ordinance. In D2 Kulasinghe has stated:
“ I have purchased these watches from brokers. Brokersknown to me are Messrs. Munasinghe, Yatawara, Hameed,and two or three other persons. I hold receipts signed onstamps for every purchase. The address of these brokers are
I’ATHIRAJJA, J.—Attorney-General v. Wimaladl ai ma
35?
on the receipts themselves. All these receipts are in theshop. They are not filed separately but with the receiptsfor other purchases made daily. ”
Kulasinghe, in his evidence, said that he could not produce thereceipts as they were in the five files that were removed by theCustoms and the Customs were not releasing these files. We donot think that this is a genuine excuse. These files in fact wereremoved by the Customs. By P5 dated 19th July, 1970 the plain-tiff wanted these documents from the Customs. By P7 of 24thOctober, 1970 the plaintiff’s lawyers were informed that theywere free to inspect, examine and take copies of the said booksat the office of the Chief Preventive Officer. Customs. Colombo,but the plaintiff had not availed himself of this opportunity.He cannot therefore complain.
Tn D2b Kulasinghe has stated: —
“ I bought these watches from brokers because they toldme that the watches were assembled locally. ”
In D2c Kulasinghe states :—
“ Although I was aware that watches like Favre Leuba andEnicar are reported imported illegally into Ceylon, I pur-chased these watches from the brokers because I thoughtthat they were assembled locally. "
Kulasinghe in his evidence has described these statements asincorrect and that he could not remember having made suchstatements. No reasons have been urged as to why Mr. Cuma-ranatunga should have incorrectly recorded any statements fromKulasinghe. On an analysis of Kulasinghe’s evidence, we are ofthe view that the plaintiff has failed to prove that the articlesreferred to in the first cause of action were lawfully imported,the burden of proof of which was on the plaintiff.
In view of our finding that the plaintiff has failed to prove lawfill importation of the goods in question, the next question wehave to consider is whether the plaintiff is liable to a foi’feitureof treble the value of the goods, or the penalty of Rs. 1,000 att.hp election of the Collector of Customs for the reason as aver-red in the answer.of the defendant that the plaintiff was know-ingly concerned in dealing with these goods which were liableto duties of Customs with intent to defraud the revenue of suchduties under Section 129 of the Customs Ordinance.
The Principal Collector of Customs had by his letter (P4) dated11.11.1969 found the plaintiff guilty under Section 129 of theCustoms Ordinance and elected and imposed a forfeiture of
358PATHIRAXA, J .—Attorney-General v. Wimaludharmo
Rs. 31,845 being treble the value of the goods, viz : 82 wrist-watches valued at Rs. 8,200, 120 wrist-watch straps valued atRs. 360 and 137 Pilot pens valued at Rs. 2,055. This amount isclaimed by the defendant in reconvention against the plaintiff.In order to succeed, the Crown must prove to the satisfaction ofthis Court, first, that the plaintiff was in any way knowinglyconcerned in any manner dealing with any goods liable to dudesof Customs, and secondly, he did so with intent to defraud therevenue of such duties or any part thereof.
The decision in the English case of R. «. Cohen (1951) 1 A.E.R.203. lays some guide lines as to the nature of the evidence thatis necessary to establish knowledge on the part of the plaintiffthat he was concerned in dealing with goods liable to Customsduties, and also the intention to defraud the revenue of suchduties. In R. v. Cohen (supra.), the accused was indicted withknowingly harbouring certain uncustomed goods, namely 382Swiss watches and other articles with intent to defraud, HisMajesty of the duties thereon, contrary to Section 186 of theCustoms Consolidation Act, 1876.
There is similar provision in regard to the offence of knowing-ly harbouring goods liable to duty in our Section 129 of the Cus-toms Ordinance. Lord Goddard, C- J-, in dealing with the men-tal element of knowledge made the following observations :
“ First, let us consider the ingredients of the offence andwhat has to be proved by the prosecution in order to esta-blish a prima facie case. Apart from an intent to defraudwith which we will deal separately, the offence consists inknowingly harbouring uncustomed goods, and, in our opi-nion that means that the accused knowingly harbouredgoods and also knew that they were uncustomed. To provea conscious harbouring it would usually be enough to showthat goods which were subject to duty were found in thepossession of the accused. If they are found in his house,warehouse or other place under his control, that would esta-blish a prima facie case that he knowingly harboured them,though, no doubt, he could rebut this by proving thathe did not know of their presence, for instance, byshowing that someone had * dumped ’ them there without hisknowledge or privity. Once it is proved that he knowinglyharboured goods subject to duty, s. 259 throws on him theonus of proving that the goods are, in fact, customed. To dothis he would have to prove that the duties had actuallybeen paid, or, at least that they had been declared andthat the customs officers, in the exercise of a discretionwhich, as is well known, they are allowed, had permitted the
PATHIKANA, J.—Attorney-Otneral v. H imaladharmuJu'J
goods to enter. The latter case would probably seldom ariseand could only occur in the case of a small amount of spirits,tobacco, jewellery or the like, and we need not deal furtherwith this. ”
Thereafter, Lord Goddard. C. J- deals with the ingredient ofthe intent to defraud in this manner, :
“ Another ingredient of the offence is the intent to de-fraud, and of this the jury should be reminded, but, as in allcases where an intent to defraud is a necessary ingredient,the intent must usually be inferred from the surroundingcircumstances. If a jury is satisfied that the accused knew,which would include a case in which he had wilfully shuthis eyes to the obvious, that the goods were uncustomed, andhe had them in his possession for use or sale, it wouldfollow, in the absence of any other circumstance, that heintended to defraud the revenue. That there may be caseswhere the circumstance^ would negative the intent ispossible, but, oi’dinarily speaking, it is indeed difficult tosee how it could be found he did not intend to defraud therevenue, certainly in such a case as the present, where theappellant not only had the goods in his possession for thepurpose of selling, but told lies to the officers whenchallenged on the matter. ”
The admissions that Kulasinghe, manager of the plaintiff hadmade to Mr. Cumaranatunge, the Deputy Collector of Customs,that he purchased these watches from brokers because they toldhim that they were locally assembled, not only discredit Kula-singhe’s testimony, but the contradictions and inconsistencies inhis explanation on this issue which we have detailed earlier leaveus with no alternative, but to reject his explanation given in hisevidence in Court that he was'satisfied that the brokers told himthat these watches were imported before 1963 or were purchasedat Customs sales. He has admitted that regarding the purchase ofthe 137 Pilot pens from Edwin that he did not question Edwin;regarding the watch-straps he admitted that the particular onesare not locally made and that he has not bought any locallymanufactured watch straps.
Although Kulasinghe has said that regarding the purchase ofwatches, he was satisfied with what the brokers told him, but headmitted that he was not concerned with making any furtherinquiries, although he was aware that the smuggling of watcheswas rampant in the country. These circumstances entitle us todraw the irresistible inference that Kulasinghe, when he was
360
I'AXHlltANA, J.—Attorney-General v. Wiiiialadhurina
dealing with these articles, knew that they were not lawfullyimported and uncustomed that they were liable to Customsduties, and he did so with intent to defraud the revenue. We are,therefore, of the view that the defendant is entitled to succeedin the claim in reconvention in respect of treble the value of 79wrist watches, 120 wrist watch straps and 137 Pilot pens.
In view of our finding that the plaintiff has failed to provethat the goods referred to in the first cause of action were law-fully imported, we set aside the judgment and decree of thelearned District Judge in respect of the first cause of action andhold that the seizure followed by forfeiture of 79 wrist watches,120 wrist watch straps and 137 Pilot pens, was lawful. The plain-tiff will therefore be only entitled to, out of the 82 wrist watchesseized, the 3 ladies’ Nelson wr ist watches, which on the evidencehad been locally assembled. We dismiss the appeal of the defen-dant in respect of the articles in the second cause of action, as,in our view, these articles were not used for the concealment ofany goods liable to forfeiture under Section 125 of the CustomsOrdinance.
In view of our finding that the 79 wrist watches, 120 wristwatch straps and 137 Pilot pens were not lawfully imported, weare satisfied on the evidence that the plaintiff was knowinglyconcerned in dealing with these articles which were liable to theduties of Customs with intent to defraud the revenue ofsuch duties under Section 129 of the Customs Ordinance. Afterdeducting the value of the three ladies’ wrist watches, at Rs. 100per wrist watch, treble the value of goods will be Rs. 31,545,which, in our view, was entitled to be forfeited by the Collectorof Customs. The defendant, therefore, will be entitled to judg-ment in reconvention against the plaintiff in this sum ofRs. 31,545. As the plaintiff has partly succeeded in his claim, inthe circumstances of this case, we order that the plaintiff-res-pondent do pay the defendant-appellant half the costs both inappeal and the District Court.
Ratwatte, J.—I agree with my brother Pathirana, J.
Appeal partly allowed•