The court found that failure to comply with statutory seizure procedures rendered the forfeiture notice invalid and ruled the seizure of property unlawful under the Customs Act.

Mohd Sofian Abd Razak J:

[1] The simple and brief facts of this application by way of originating summons (enclosure) by the plaintiff as narrated are that at about 5.30pm on 5 September 2008, the plaintiff and two (2) other persons had been arrested by police officers, together with nine (9) buffaloes which were loaded on a motor-lorry model Mitsubishi Canter with registration number KAS 1565 belonging to the plaintiff (hereinafter called the 'seized goods') The arrest took place about 300 meters from the Malaysian-Thai border.

[2] The nine (9) buffaloes were later handed over to the Kedah State Veterinary Services Department, Alor Setar and thereafter handed over to the defendant. The plaintiff and the two (2) other persons were released on bail of RM2,000 each. The plaintiff averred that the nine (9) buffaloes were not purchased from Thailand but were bought at a price of RM1,600 each from one Maziki bin Ismail through an agent named Mohamad Aminuddin bin Ismail both of whom are Malaysian citizens. The plaintiff further averred that the purchase took place at Padang Sanai, Kuala Nerang, Kedah. The plaintiff was subsequently issued and served with a notice of seizure dated 6 September 2008 (hereinafter called the 'said notice') and he was informed that he was suspected of committing offence(s) under ss. 133(1)(e)/135(1)(e) of the Customs Act 1967 (hereinafter called the 'said Act'). The plaintiff was never charged for any offence(s) up till now. The plaintiff after receiving the said notice, had submitted two Statutory Declarations to the defendant and made claims for the return of the seized goods. This claim of the plaintiff was denied by the defendant but nevertheless he admitted receiving the plaintiff's claim. Having received the plaintiff's claim within the 30 days the defendant never took the step(s) to refer this matter to the court.

The Plaintiff's Application (encl. 1)

[3] Prays for the following reliefs namely:

a) Declaration that the Forfeiture Notice dated 6 September 2008 by the defendant is null and void and of no legal consequences and ought to be set aside;

b) That the said notice was ultra vires the provisions of the Customs Act 1967 ;

c) That the seizure of nine (9) buffaloes and the motor-lorry KAS 1565 was illegal in the given circumstances;

d) costs; and

e) any other order.

Plaintiff's Submission

[4] The learned counsel for the plaintiff submitted that in such a situation as this, the said Act does not apply as the incident took place within the territorial jurisdiction of Malaysia and the defendant had given no proof to rebut the allegations of the plaintiff that the nine (9) buffaloes were bought locally. It was further submitted that if the nine (9) buffaloes were bought in Malaysia from Malaysians, therefore the said Act does not apply and the defendant's issuance of the forfeiture notice is ultra vires the provisions of the said Act and having no legal consequences. Alternatively, even if the said Act does apply, it is the plaintiff's contention that no offences were committed in the face of the two Statutory Declarations by one Maziki bin Ismail and Mohamad Aminuddin bin Ismail respectively submitted by the plaintiff to the defendant (hereinafter called the 'said SD'). In concluding his submission, the learned counsel avers that the fact that there is no prosecution against the plaintiff for any offence under the said Act, is in itself evidence that the seizure was made without reasonable or probable cause and contravenes art. 13(1) of the Federal Constitution that 'No person shall be deprived of property save in accordance with law'.

D