Mohideen Et Al. V. The Attorney Geneal

1948     Present : Howard C.J. and Canekeratne J.

MOHIDEEN et al., Appellants, and THE ATTORNEY-GENERAL, Respondent.

S. C. 484-D. C. Colombo, 17,059.

Customs Ordinance-Forfeiture of goods-Deposit of security-Action for refund of money-Is it available?-Section 146.

The action available under section 146 of the Customs Ordinance to a person whose goods have been seized as forfeited and who has given security is not limited to an action for declaration of title to the goods and the discharge of the bond. He can sue for the return of the money deposited as security.

APPEAL from a judgment of the District Judge, Colombo.

H. V. Perera, K.C., with H. W. Jayewardene, for plaintiffs appellants.

H. W. R. Weerasooriya, Crown Counsel, for the defendant respondent.

Cur. adv. vult.

December 10, 1948. HOWARD C.J.-

This is an appeal from a decision on two preliminary issues in an action instituted by the appellants, the plaintiffs, against the Attorney-General, for the recovery of a sum of Rs. 30,000. The plaint alleged that the plaintiffs had consigned to them thirteen bundles of cow leather from South India to Colombo and by letter dated May 28, 1946, the Principal Collector of Customs informed the plaintiffs that the thirteen bundles were forfeited under section 49 of the Customs Ordinance. Maintaining that the forfeiture of the bundles was unlawful the appellants on May 29, 1946, gave to the Principal Collector of Customs notice in writing that they intend to enter a claim to the thirteen bundles declared forfeit and paid a deposit of a sum of Rs. 30,000 and executed a bond in terms of section 146 of the Customs Ordinance. The appellants contended that a cause of action had, therefore, accrued to them to prosecute their claim as provided in the said bond and to sue the defendants for the recovery of the said sum of Rs. 30,000. On behalf of the respondent it was submitted that the action could not be maintained under section 146 of the Customs Ordinance. Issues 12 and 13 were worded as follows :-

"12. Have the plaintiffs in terms of the conditions in the bond dated May 29, 1946, given under the provisions of section 146 of the Customs Ordinance instituted in the proper Court within 30 days of the said bond, proceedings for the recovery of the 13 bundles of leather seized as forfeited under the provisions of the Customs Ordinance.

13. If issue 12 is answered in the negative can plaintiffs maintain the present action? "

Section 146 is worded as follows :-

" All ships, boats, goods and other things which shall have been or shall hereafter be seized as forfeited under this Ordinance, shall be deemed and taken to be condemned, and may be dealt with in the manner directed by law in respect to ships, boats, goods, and other things seized and condemned for breach of such Ordinance, unless the person from whom such ships, boats, goods, and other things

shall have been seized, or the owner of them, or some person authorised by him, shall, within one month from the date of seizure of the same, give notice in writing to the Collector or other chief officer of cust

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