The Attorney-General V. Lebbe Thamby

1958 Present: Basnayake, C.I., and Sansoni, J

THE ATTORNEY -GENERAL, Appellant, and LEBBE THAMBY others, Respondents

S. C . 79-D. O. Colombo, 35484/M

    Customs Ordinance-Seizure of prohibited goods-Section 144-" Lawfully imported"-Burden of proof-Exchange Control Act, No. 24 of 1953,s. 21 (1)

The question for decision was whether certain gold bars found on 24th February 1955 in the possession of an employee of the respondents unlawfully imported and therefore liable to be seized &S forfeited un Customs Ordinance. The respondents conceded that after the Exchange Act came into operation on 15th August 1953 the importation of gold, with the permission of the Central Bank of Ceylon, was prohibited. Attorney-General (appellant) conceded that the burden of proving importation would not lie on the respondents under section 144 of the Ordinance unless the Crown proved that the gold bars were import

Held, that, as the onus of proving that the gold bars were import on the Crown, the Crown should have established that fact beyond reasonable doubt as in a criminal prosecution.

APPEAL from a judgment of the District Court, Colombo.

A.C. Alles, Acting Solicitor-General, with Mervyn Fernando Crown Counsel, for Defendant-Appellant. "

H. V. Perera, Q.C., with S. J. V. Chelvanayakam, Q. C. Barr. Kumarakulasinghe, for Plaintiffs-Respondents.

Cur. adv. vult.

August 6, 1958. BASNAYAKE, C.J.

This is an appeal by the Attorney-General the 1st defendant action (hereinafter referred to as the appellant) which the plaintiffs nine in number (hereinafter referred to as the respondents) ins against him and the Principal Collector of Customs in pursuance section 146 of the Customs Ordinance for the recovery of four go valued at Rs. 4,250 of which the respondents claim to be owners Principal Collector of Customs who was the 2nd defendant was disc from the action by the trial Judge.

The only question that arises for decision is whether the Crown is titled in law to seize the four gold bars as forfeited under the Customs Ordinance. The facts of the case which are few and simple are not disputed except in regard to the question of importation. They are as follows: The respondents are partners of a business carried on under the name and style of " L. K. S. Lebbe Bros. " at Pettah in Colombo. They were at the material date, 24th February 1955, carrying on business as jewelers at 137, 2nd Cross Street in Pettah in Colombo. They also had a place of business at Kannatody in Jaffna, where they manufactured jewellery for sale mainly in Colombo. They were also buyers of old

jewellery the gold of which they melted down both for the purpose of sale as gold and for the purpose of being utilized in the manufacture of jewellery. On the day in question S. A. Meera Saibo the 8th plaintiff prepared a parcel of jewellery and the four gold bars in question to be sent to Jaffna by insured post. It was sent to the General Post Office through an employee of the firm Carim by name. When he was at the parcels counter of that office he was arrested with the parcel by Inspector Grenier and taken to the office of the Criminal Investigation Department where he opened the parcel in the presence of Carim, the driver of his car, and another who had come with him. The parcel contained the 4 gold bars (one larger than the other three) and the following items of jewellery :24 gold bangles, 11 gold rings, 1 gold bracelet, 7 pieces of gold chains, 4 pieces of gold necklaces, 2 gold amulets, 3 gold hooks, 4 gold chains, 1 gold pendant, and 8 miscellaneous pieces of gold. The jewellery was used jewellery and was returned to the owners after a few days. The larger of the gold bars weighed 16 totals and the other three together- 20.90 totals. The plaintiffs value the jewellery at Rs. 5,192'50 and the gold bars at Rs. 4,250. The gold bars bear microscopic Chinese and English characters which with

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