Mandirampillai i*. Attorney-Generall&T
[Privy Council ]
1969 Present: Lord Morris of Borth-y-Gest, Lord Hodson, Lord Upjohn,Lord Wilberforce and Lord DiplockMANDIRAMPILLAI and another, Appellants, and THE ATTORNEY-
Privy Council Appeal No. 1 of 1969
S. O. 16511965 (F)—D. C. Jaffna, 1870jM
Customs Ordinance (Cap. 235)—Section 125—Forfeiture of goods thereunder — Meaning
of word " concealment ”— Sections 30,-47, 75,107,125,129,132, 150,152, 154.
The plain tiffs-appellants imported from Tuticorin in May 1961 fifty bags ofwhat were described on the Bill of Lading as being Fenugreek seeds (Mathe seeds).Fenugreek seeds are permitted to be imported free of duty. When the goodsreached their destination in Jaffna, the Customs officers detected that only 30of the bags contained Fenugreek seeds and that the remaining 20 bags containedpoppy seeds the importation of which is prohibited. The Assistant Collector ofCustoms thereupon ordered the forfeiture of not only the 20 bags of poppy seedbut also of the 30 bag3 of Fenugreek seed. The appellants contested in thepresent action the validity of the order of forfeiture in respect only of the 30 bagsof Fenugreek Beed. They claimed that the forfeiture of those 30 bags by theAssistant Collector of Customs was not lawful.
The finding of the trial Judge was that the appellants had “ planned to concealpoppy seeds in the consignment and that the 30 bags were used to conceal 20 bagsof poppy seeds ”. The evidence established that all 60 bags had the same mark“ Mani ” on each of them and that there was a scheme, by inducing the Customsto believe that all 50 bags contained permissible imports, to smuggle in theprohibited poppy seed which was in the 20 bags.
Held, that the forfeiture of the 30 bags of Fenugreek seeds was lawful underthe provisions of Section 125 of the • Customs Ordinance. The word“ concealment ” in that Section covered the situation that existed in thepresent case.
.A.PPEAL from an order of the Supreme Court.
T. O. Kellock, Q.G., with Eugene- Coiron and M. 1. Hamavi Haniffa, forthe plaintiffs-appeUants.
'' E. F. N. Graliaen, Q.C., with R. K. Handoo, for the defendant-respondent.
Cur. adv. vult.
Lxxn—81 •—J 6965—2,255 (9/69)
90 LORD MORRIS Ol? BORTH-Y-GEST—Mandirampillai v. Attorney-General
July 28, 1969. [Delivered by Lord Morris of Bobth-y-GestJ—
The appellants who are father and son carried on business at all relevantlimes in partnership at Jaffna under the business or firm name ofSana Mana Rawanna & Co. The business was that of wholesale andretail general merchants and importers and exporters. In May 1961 thefather, on behalf of the firm, ordered 50 bags of Fenugreek seed froma firm in Tuticorin. The son was the sole proprietor of that firm. Theywere exporters and importers. The goods were to be shipped direct toJaffna. The firm in Tuticorin shipped packages, 50 in number, describedon the Bill of Lading as being “ Bags Fenugreek ”, and having the marks“Mani ” for carriage to Jaffna. The son as the sole proprietor of thefirm in Tuticorin made ah export application there in respect of aconsignment of goods described as Fenugreek seed and consisting of60 bags with the marks “ Mani ”.
When the vessel on which the 50 bags had been shipped (the Nooraniah)reached its destination at Jaffna, an agent of the appellants, as importersof the goods, signed a Bill of Entry in respect of the goods. Theywere described as 50 bags Fenugreek seeds (Mathe seeds) : the goodswere entered as having a value of Rs. 5,644 cts. 65. The agent, at therequest of the sub-collector of Customs, went to the Customs warehouseinto which the 50 bags had been carried and looked at them and took asample of Fenugreek seeds which he produced for inspection. Fenugreekseeds are free of duty on importation. What then happened was thatthe Assistant Collector of Customs sent his officers to take samples fromthe bags. They found that some of the bags did not contain Fenugreekseeds. Thirty of the bags did but 20 of them contained poppy seeds.The importation of poppy seeds is prohibited. It was further found thatthough all 50 bags had the mark MANI there was a distinction betweenthe 30 bags and the 20 bags in that on the 30 but not on the 20 therewas the additional mark “ 21SX
As a result of what was discovered the Assistant Collector of Customsmade certain orders. He ordered the confiscation of the 20 bags ofpoppy seed. He had full power to make that order. It has not beencontended otherwise. Furthermore, under section 127 of the CustomsOrdinance (Chapter 185) now s. 129 he imposed a penalty of Rs. 45,000,which penalty however, he mitigated to Rs. 15,000. No question arises inthe present proceedings in regard to the imposition of that penalty. Butfurthermore he made an order stated to be under s. 123 of the CustomsOrdinance now s. 125 of Chapter 235 for the confiscation of the 30 bagsof Mathe seed. The appellants contest the validity of that order. Theyclaimed that they were entitled to have delivery of those 30 bags andclaimed that there was illegal and wrongful detention of them by theAssistant Collector of Customs. Having given notice to the Collectorof Customs that they intended to commence proceedings for the restorationto them of the goods or to recover their value, which was stated to beRs. 3,600, the appellants gave security to the satisfaction of the Collectorin the sum of Rs. 5,000 (see s. 154 of the Customs Ordinance Chapter 235)
LORD MORRIS OF BORTH-Y-GEST—Mandiran pillai v. Attorney General 171
and received the 30 bags. After due notice given, the appellants by theirPlaint dated 1st August 1961, commenced their proceedings. Claimingthay they had been entitled to take delivery of the 30 bags, their claimwas in substance for a refund of the security of Rs. 5,000 which theydeposited with the Collector of Customs. The issue in the action wastherefore whether the detention and confiscation of the 30 bags waslawful.
The action was tried in the Dist rict Court of Jaffna. The first appellant,the father, gave evidence ; the second appellant, the son, did not giveevidence. The learned judge dismissed the action with costs. In hisjudgment (in March 1965) his conclusions were definite. He consideredthat the facts clearly showed that the two appellants had planned tointroduce into the consignment of what should have been 50 bags ofFenugreek seeds, 20 bags which, instead of containing such seeds, in factcontained poppy seeds. He held that that was what the second appellant(the son) had done. He rejected an explanation which had been suggestedby the first appellant (the father) in a statement to the Assistant Collectorto the effect that a mistake had been made by the exporter in India. “ Theevidence in this case points to only one conclusion namely .that theplaintiffs had planned to conceal poppy seeds in the consignment that wassent to the second plaintiff as sole proprietor of Velautham I'illai andCompany. ”
The learned judge further held as follows :“ The burden was on. the
Crown to prove bejmnd reasonable doubt that the plaintiffs and theiragents had put together the 50 bags sent by Velautham Pillai andCompany on the Nooraniah to the plaintiff in such a way that 30 bags ofFenugreek seeds were used to conceal 20 bags of poppy seeds. I hold thatsufficient evidence has been Jed to satisfy the Court beyond reasonabledoubt that this is exactly what happened. ” There had been submissionsmade to the learned judge in regard to the onus of proof and as towhether s. 152 of the Customs Ordinance Chapter 235 was or was notapplicable. In this appeal counsel for the respondent wasprepared to makea submission that the onus of proof as to whether the forfeiture by theCrown of the 30 bags of Fenugreek (or Mathe) seeds w’as lawful was notupon the Crown but that it was for the plaintiffs in the action to provethat the forfeiture was unlawful and that they had not done so. TheirLordships did not find it necessary to hear submissions in regard to thesematters and express no opinion in regard to them.
Following his conclusions as summarised above the learned judgeanswered the first of the issues on which the case went to trial by sayingthat the' refusal by the Customs to deliver the 30 bags and the detentionof the 30 bags were lawful. The contention which the. appellants submitin this'appeal has relevance to that answer… In answering another of theissii'eS the learned judge stated that under s: 47.of the Customs Ordinance(Chapter 235) there was entitlement to forfeit the 30 bag3 for the reasonthat the go d* which the plaintiffs had claimed (i.e., the 50 bags lying in
172 LORD MORRIS OR I30RTH-Y-GEST—Mandirampillai v. Attorney-General
the warehouse) did not agree with the particulars in the Bill of Entry :those particulars referred to 50 bags Fenugreek seed whereas actuallyonly 30 contained such seeds while 20 contained poppy seeds.
The concluding words of s. 47 are as follows: “ but if such goods shallnot agree with the particulars in the Bill of Entry the same shall beforfeited and such forfeiture shall include all other goods which shall beentered or packed with them as well as the packages in which they arecontained.” The learned judge held that though in his order the AssistantCollector had not expressly referred to s. 47 it was open to the Crown tojustify the forfeiture because in any event s. 47 had been contravened.The answer which the defendant had filed in the action had made nomention of s. 47 and by an Order made in March 1903 the District Courtrejected an Amended Answer in which it was sought to introduce s. 47.The trial proceeded on the original answer and no issue had been basedon s. 47. The appellants submitted that the learned judge was wrong inholding that the 30 bags could be forfeited under s. 47 inasmuch as theywere not in fact forfeited under that section and they submitted thatmatters had proceeded on the basis that the forfeiture of those bags wasundersection 125 and not under section 47 and furthermore they submittedthat section 47 was not contravened. The respondent was prepared tomake a submission to the effect that the District Court had been in errorin rejecting the Amended Answer and in rejecting certain issues whichhad been framed by defendant’s counsel. Their Lordships did not findit necessary to hear the respondent’s submission and accordingly expressno opinion on any of these matters. Nor does any occasion arise toconsider any of the contentions referable to s. 47 if on the findings offact of the learned judge the confiscation of the 30 bags was lawful underthe provisions of s. 125.
From the judgment of the learned judge the plaintiff ajij)ealed to theSupreme Court of Ceylon. On 27th November 19G7 the appeal was' dismissed with costs. No oral or written judgments were delivered.
The central contention of the appellants was that the forfeiture andcontinued detention of the 30 bags was not lawful. In his order theAssistant Collector of Customs stated that the forfeiture was made unders. 123. That is now s. 125 of the Customs Ordinance Chapter 235. It isin the following terms :
“ 125. All goods and all ships and boats which by this Ordinanceare declared to .be forfeited shall and may be seized by any officerof the customs ; and such forfeiture of any ship or boat shall includethe guns, tackle, apparel, and furniture of the same and suchforfeiture of any goods shall include all other goods which shall bepacked with them.'as well, as the packages in which they are contained ;and all carriages or other means of conveyance, together with all horsesand all other animals, and all other things made use of in any wayin the concealment or removal of any goods liable to forfeiture underthis Ordinance, shall be forfeited. ”
LORD MORRIS OF BORTH-Y-GEST—Mandirampillai V. Attorney-General 173
TJie finding of the learned judge having been that the appellants 1-ad" planned to conceal poj>py seeds in the consignment and that the30 bags were used to conceal 20 bags of poppy seeds ”, it was submittedon behalf of the appellants that the learned judge had misconceived themeaning in the section of the word “concealment” and that the factsof the case did not warrant a finding that there had been " concealmentIt was submitted that the word concealment, in its context-, involved thatthere should be something in the nature of a secret disposition havingthe result that goods were hidden or were in some way removed fromobservation or were placed somewhere so as to avoid detection.Reference was made in support of this submission to the wording incertain sections of the Customs Ordinance Chapter 235 (such assections 30, 75, 107, 129, 132, and 150). Accordingly it was argued thaton the facts of this case there was no concealment of the 20 bags ;that they were fully exposed to view ; that they were in no way hiddenor placed, in any such way that they would not be seen or observed ;that accordingly even if the ajJj)ellants had planned in the way thatthe learned judge thought that they had planned even so the 30 bagswere not used in the concealment, of the goods which were liable toforfeiture.
While the word concealment in its context may fully embrace theconceptions above noted their Lordships cannot accept that it does notcover the situation that existed in the present case. On the findings ofthe learned judge the appellants planned to import prohibited goods whichwere liable to forfeiture. The prohibited goods consisted of the poppyseed which would be contained in some of the bags of a group of bagswhich were described as all containing duty free permitted imports. Inthe normal course of events there would be ever}' chance that the planwould succeed. Provided that a sample was taken from a bag describedas containing Fenugreek seeds and in fact containing them there wouldbe every likelihood that the Customs would readily accept that all thebags contained what they were said to contain. On the facts as foundthe Customs were induced to believe that the unseen contents of the50 bags were all the same and were all permissible imports. The wholescheme as found by the learned judge involved that there should be anintentional suppression of the true facts.
The means employed in the scheme to smuggle in the poppy seed whichwas in the 20 bags involved that there should be 50 bags all having theone mark and all purporting to contain the same kind of goods andtherefore goods of the same value and involved that the 30 bags shouldtruly contain what they were said to contain. The use in that way of the30 bags was an essential part of the plan. It was made to appear thatthe contents of the 20 bags were the same as those of the 30 so thatall 50 would seem to be the same with the result that the prohibitedgoods could pass through with the others and under the cloak orprotection of apparent legality. The addition of a special mark (218X)to the 30 bags would enable samples to be taken from these bags and so
174WEERAMANTRY, J.—Fernando v. Fernando
avoid detection of the illegal contents of the remaining 20 bags. If thenthe question is posed whether the 30 bags and their contents were “ madeuse of in any way in the concealment " of poppy seeds liable to forfeituretheir Lordships consider that the answer must be in the affirmative. Forthese reasons their Lordships will humbly advise Her Majestj* that thea|>pcal should be dismissed. The appellants must pay the costs of therespondent.
V. MANDIRAMPILLAI and another, Appellants, and THE ATTORNEY-GENERAL, Respondent