1963    Present : T. S. Fernando, J.

N. M. S. OMER, Applicant, and M. L. D. CASPERSZ and another,
Respondents

S. C. 89 of 1963-In the matter of an Application for a Mandate in the
nature of a Writ of Mandamus and of a Writ of Certiorari directed to the
Principal Collector of Customs

    Customs Ordinance (Cap. 235)-Sections 8(2), 43, 129, 144, 165-Wrongful refusal to pass goods imported-Mandamus-Order of forfeiture-Duty of customs officer to act judicially-Certiorari.

Where a customs officer, purporting to act under section 144 of the Customs Ordinance, wrongly refuses to pass any goods which a person imports, manda­mus lies to compel him to pass the goods. In such a case, the validity of an order of forfeiture under section 129 of the Customs Ordinance can be challenged by including a prayer for intervention by way of certiorari on the ground that, before ordering the forfeiture, the customs officer in question failed to act judicially. The liability of a person to a penalty or forfeiture has to be objec­tively assessed after an inquiry at which he is given an opportunity to show that by importing the goods in question he did not act in contravention of law.

An order of a customs officer refusing to pass goods until a sum of money declared forfeited or imposed as a penalty is first paid ;s not an order reviewable by the Minister under section 165 of the Customs Ordinance.

APPLICATION for writs of mandamus and certiorari against the Principal Collector of Customs.

H. W. Jayewardene, Q. C., with L. Bartlett, for the applicant.

H. L. de Silva, Crown Counsel, for the respondents.

Cur. adv. vult.

June 28, 1963. T. S. FERNANDO, J.-

The papers filed on this application reveal the facts which are set out hereunder :-

The petitioner on or about March 2, 1962 applied to the Controller of Imports for a licence to import certain watch spare parts from Switzerland described in an indent (marked X. 1) and was granted a licence therefor. The petitioner claims that he imported into Ceylon on or about March 19, 1962 in four parcels the goods described in indent X. 1 which are covered by the import licence. He was not permitted to pass a bill of entry in respect of the goods so imported, but was served with a summons dated April 11, 1962 purporting to be issued under section 8 (2) of the Customs Ordinance (Cap. 235) requiring him to appear before the Collector on April 18, 1962 " as your evidence is necessary for the purpose of an inquiry to be held into the seizure of parcels Nos. Chiasso Air 42/1, 42/2, 42/3 and 42/4 by my officer at parcel post ".

The petitioner states that he attended as required by the summons aforesaid and an officer of the Customs Department questioned him as to whether the four parcels were consigned to him. He alleges that apart from calling upon him to identify the goods, by which I understand that he was only asked whether he was the importer of the goods, no other inquiry was held by any officer of Customs on that day. This allegation stands uncontradicted in the affidavits filed on behalf of the respondents on this present application.

Thereafter, in August 1962, the petitioner applied for and obtained another licence to import certain watch spare parts, this time from Hong Kong, described in indent (marked B) and goods on this indent appear to have reached Ceylon in September 1962. The petitioner alleges that he has not been permitted to pass bills of entries in respect of goods imported on indent B although certain customs duties aggre­gating to a sum of Rs. 24,675/57 have been collected from him by the respondents.

The respondents claim that the goods imported in March 1962 are forfeit in terms of section 43 of the Customs Ordinance by reason of the importation being contrary to the table of prohibitions and restrictions inwards. The decision of this Court in Palasamy Nadar v. Lanktre[(1949) 51 N. L. R. 520.] emphasizes that wher