WITEYEWAEDBNE J.—Velupillai and The Collector of Customs, N. P.
1943Present: Wijeyewardene J.VELUPILLAI, Appellant, and THE COLLECTOB OE CUSTOMS,
570—M. C. Point Pedro, 2,053.
Customs Ordinance (Cap. 185), section 139a—Charge against accused under thesection—Acquittal of accused—Goods found in possession of accused—Forfeiture—Criminal Procedure Code, s. 413.
Where an accused person is acquitted of an offence under section 139aof the Customs Ordinance, goods found in his possession should bereturned to him in the absence of evidence that the goods were forfeitedunder the Customs Ordinance.
PPEAL from an order of the Magistrate of Point Pedro.
H. W. Thambiah, for appellant.
H. T. Gunasekera, G.C., for the Attorney-General.
Cur. adv. vult).
October 5, 1943. Wueyewardunk J.—
This is an appeal by the accused against an order made by theMagistrate regarding the disposal of certain goods produced before himin this case. The accused has also filed papers in revision against thatorder.
The Sub-Collector of Customs, Point Podro, found the accused con-veying the goods in question in a car along Point Pedro-Valvettiturairoad on September 24, 1942. He took the goods and the accused to theCustoms House, Point Pedro. He produced the accused next morningat the Police Station. The Inspector of Police made his report to theMagistrate under sections 22 and 38 of the Criminal Procedure Codeand produced the accused who was admitted to bail by the Magistrate.
On November 25 the Collector of Customs, Northern Provinces filed theplaint alleging that-—
(а)The accused was knowingly concerned in conveying the goods in
(б)All the goods were liable to duty and no duties had been paid;
The accused became liable to forfeit either treble the value of the
goods or the penalty of Rs. 1,000 under section 127 of the
Customs Ordinance (Chapter 185); and
The accused has, thereby, committeed an offence punishable under
section 139a of the Customs Ordinance.
The plaint was accompanied by a written statement of the PrincipalCollector of Customs dated November 23, stating, as required by section139a, that he was of opinion that the penalty imposed by him on theaccused was not likely to be recovered. That statement showed that apenalty of Rs. 250 had been imposed “ under the provisions of sections127 and 155 ” of the Customs Ordinance.
When the ease came up for trial on April 10, 1943, the Sub-Collector ofCustoms, Point Pedro, gave evidence referring to the goods which werethen before the Court, and the hearing was adjourned for May 22. Onthat day the Magistrate intimated to the prosecution that he did not
WIJEYEWARDENE J.—Velupillai and The Collector of Customs, N. P.
‘ * think any useful purpose would be served in proceeding with the caseand acquitted the accused. Thereupon the Counsel for the prosecutionasked the Magistrate to record the following statement: —
“ At the Departmental inquiry held by the Collector of Customsthe accused claimed the goods seized as owner and these goods havebeen forfeited by the Customs authorities.”
On May 24, the Magistrate delivered his judgment giving his reasons.for acquitting the accused. In the course of his judgment he said that■there was “ not even prima facie evidence that the goods in question•were dutiable or whether they were imported or whether duty on themwas paid or not Proceeding to deal with the question of the disposalof the goods he said:
" The Collector of Customs has forfeited these articles by virtue ofhis admitted and undoubted powers under the Customs Ordinance.If the Collector has acted wrongly the accused is not without hisremedy, but as far as I am concerned I am not going in these proceedingsto interfere -with the order made by the Collector of Customs. Underthe circumstances I think that the fair and—to use the words ofsection 413 of the Criminal Procedure Code—the ‘ fit ’ order to makeis to order that articles . . . . be returned to the Customsauthorities from where custody these articles were produced beforeCourt.
The judgment v of the Magistrate shows that in his opinion the goodswere not property regarding which any offence appears to have been/committed or which had been used for the commission of any offence.The Magistrate therefore had no jurisdiction to make an order as he■thought “ fit ” under section 413 of the Criminal Procedure Code. Underthese circumstances the only proper course to adopt is to return the goods■to the person in whose possession it was. The evidence as indicatedby me, shows clearly that the Customs authorities seized the goods in thepossession of the accused. By seizing the goods the. Customs authorities•cannot claim to be regarded as a person from whose possession the goods• were produced before the Court. If such a contention is maintainablethen every Police Constable who arrests a man, say, on a charge ofstealing a watch and produces the accused in Court with the watchcan claim the watch be restored to him even though the accused is•acquitted and the Court finds that no offence has been committed inrespect of that watch. There is some reference in the judgment to an•order of forfeiture by the Customs authorities. It is sufficient to say-that there is no evidence of such an order, as of course, the statement ofCounsel after the acquittal of the accused cannot be considered as•evidence. Moreover neither the plaint nor the written sanction of thePrinciple Collector of Customs refers to a section of the Customs■Ordinance under which these goods could have been forfeited. It is not,therefore, necessary to consider in this case what the effect of such an-order of forfeiture would have been.
I set aside the order of the Magistrate and direct that the goods berestored to the accused appellant.
Order set aside.
VELUPILLAI, Appellant and THE COLLECTOR OF COUSTOMS N. P. Respondent