MUHAMAD KAMIL, J

1. At the conclusion of the trial under Section 135(1)(e) of the Customs Act 1967, the learned Magistrate made an order that the applicants be acquitted and discharged, and the order was subsequently affirmed by the High Court. The learned Magistrate also made a further order that the security deposit of RM25,000 made for the release of vehicle no. ME 1445 Q pending trial of the case be forfeited under Section 127(1A) of the Act. In the judgment, the Magistrate said that: -

"I shall also in view of Section 127(1A) of the Customs Act order the cash amounting to RM 25,000.00 secured for the release of one lorry ME 1445Q made under Section 115(1)(b) of the same act be forfeited to government revenue." [2]

It is obvious that before this order was made, the learned Magistrate did not hold an inquiry to determine who was the true owner of the vehicle.

2. The applicants contended that the order of forfeiture of the deposit was wrong in law, firstly there was no offence committed under Section 135(1)(e) of the Act, and secondly, there had been no inquiry held by the court to determine the true owner of the said vehicle. The applicants had not cross-appealed against this order of forfeiture because the counsel who stood in for Mr. Orlando Chua (of counsel for the applicants) who was indisposed at the date of the ruling, had failed to inform them that such an order had been made. After the High Court had confirmed the order of acquittal only then that they were informed that order of the forfeiture of the deposit had not been discussed.

3. Section 127(1) and (1A) of the Act provides: -

"127.(1) An order for the forfeiture or for the release of anything liable to forfeiture under this Act shall be made by the court before which the prosecution with regard thereto has been held, and an order for forfeiture of goods shall be made if it is proved to the satisfaction of the court that an offence against this Act or any regulation made thereunder has been committed and that the goods were the subject matter of or were used in the commission of the offence notwithstanding that no person may have been convicted of such offence.

(1A) The amount secured under paragraph (a) or (b) of subsection (1) of section 115 or the amount realized by sale under paragraph (c) of the said subsection (1) shall be forfeited by the court if it is proved to the satisfaction of the court that an offence against this Act or any regulation made thereunder has been committed and that the movable property in respect of which the amount was secured or realized by sale, as the case may be, was the subject matter of or was used in the commision of the offence notwithstanding that no person may have been convicted of such offence." [3]

4. It is clear that under Section 127(1) and (1A) of the Act forfeiture is mandatory if two conditions have been proved to the satisfaction of the court; they are: -

(i) ;that an offence against the Act has been committed, and

(ii) ;that the goods are the subject matter of or were used in the commission of the offence.

See Keng Soon Finance Bhd. v. Pegawai Kanan Kastam Johor Bharu (1981) 2 MLJ 249 , and Public Prosecutor v. Lau Siew Nguong & Anor (1994) 2 MLJ 91 .

5. In the instant case, there was no offence against the Act committed by the applicants, and there was no inquiry held by the court as to determine who was the true owner of the vehicle no. ME 1445 Q. Assuming that the vehicle had been used in the commission of an offence, then there must be nexus between the vehicle and the offence committed, and as elucidated by the words of Good J. in Reg. v Ng Hee Weng & Anor (1956) 22 MLJ 85 , "that the goods in category (b) are the receptacles, packages, conveyances, vessels and aircraft mentioned in the second part of S110(1), i.e. in which the goods first mentioned may have been found, or which have been used in connection with such offences or breach." See also Public Prosecutor v Mat Nawi bin Ismail (1987) 2 CLJ 83. In o