Back
THE ATTORNEY GENERAL v. NAGAMANY
NLR51V149
1949 Present : Canekeratne and
Gratiaen JJ.
THE ATTORNEY-GENERAL, Appellant, and NAGAMANY,
Respondent
S. C. 8-D. C. Trincomalee, 3,047
Customs Ordinance (Cap.
185)-Sailing vessel-" Knowingly used " for export of restricted goods-Forfeiture
of vessel-Guilty knowledge of owner not necessary-Meaning of expression " goods
prohibited of export "-Meaning of word " export "-Sections 128, 128A (1).
In order to justify the forfeiture of a sailing vessel under section-128A (1) of
the Customs. Ordinance it is not essential to prove guilty knowledge on the part
of the owner of the vessel.
Arumugaperumal v. The Attorney-General (1947) 48 N. L. R. 510 followed.
Goods " prohibited for export " contemplated by section 128A include restricted
goods which are exported in violation of certain conditions-which must first be
satisfied.
Goods are " exported ", in the context of the Customs Ordinance., as soon as
they are taken in a vessel outside the limits of a port.
APPEAL
from a judgment of the District Judge, Trincomalee.
H. W. R. Weerasooriya, Grown Counsel, with Glanville Perera, Crown Counsel,
for defendant appellant.
C. Thiagalingam, with S. Mahadevan, for plaintiff respondent.
Cur. adv. vult.
September 26, 1949. GRATIAEN
J.-
The plaintiff in this case was the owner of a sailing vessel Mathurai Ammal
whose tonnage did not exceed 250 tons. In December, 1947, he had hired the
vessel to Supramaniam Nadarajah on the terms of a contract which provided that
the owner, to use his own words, was "to be in no way concerned with the use to
which the hirer put the vessel ". Supramaniam Nadarajah obtained an " outward
coastwise clearance " under Section 64 of the Customs Ordinance (Chapter 185)
entitling the vessel to proceed in ballast to Trincomalee from the harbour of
Valvettithurai. The master of the vessel for this voyage was K.. Kandasamy.
On 20th December the Mathurai Animal arrived alongside Muthur Jetty in a small
harbour on the east cost of the Island not far from Trincomalee. On 21st
December she was again observed at Muthur. Two days later, without having
obtained a certificate of clearance to leave Muthur, she was sighted by the crew
of a Customs
patrol-launch sailing in a
northerly direction off Pigeon Island twenty miles from Muthur. On the approach
of the launch there was much agitation on both the Mathurai Ammal, and several
gunny bags were hastily thrown over the side of the vessel- This naturally
aroused suspicion, and in consequence a customs officer boarded the vessel and
discovered in the hold a cargo of sixty-six bags of paddy for the export or
transportation of which no official permit could be produced. The inference to
be drawn from these facts is irresistible in the absence of any explanation
which would justify a more charitable view of the transaction. Kandasamy, in
breach of Section 128 of the Customs Ordinance and of the Defence (Control of
Export) Regulations in force at the time had used the vessel under his charge to
smuggle paddy out of Muthur Harbour. Whether the ultimate destination of this
unauthorised cargo was Valvettithurai or a foreign port is a secret which he has
not chosen to divulge.
Kandasamy was in due course convicted in the. Magistrate's Court of Trincomalee
on a charge under Section 128 of the Customs Ordinance of having been "
concerned in exporting or taking out of the Island sixty-six bags of paddy the
exportation of which was restricted under the provisions of the Ordinance ". At
the same time the vessel Mathurai Ammal was declared by the Assistant Collector
of Customs to be forfeited under section 128A (1) of the Ordinance on the ground
that (to quote only the relevant words of the Section) she had been "knowingly
used in the exportation of goods prohibited of export ". On receiving
information of this order of forfeiture, the plaintiff, after due compliance
with the requirements of Section 146 of
