Abdul Hamid FJ

(delivering the judgment of the Court): This reference to the Federal Court under section 66(1) of the Courts of Judicature Act, 1964 is for the determination of the following questions of law:—

(1) whether the court, when hearing a summons issued pursuant to section 128(4) of the Customs Act, 1967 can rely on the presumption under section 135(2) of the same Act to determine whether an offence in relation to the conveyance is committed when no prosecution was preferred against any person for any offence under the same Act and when the conveyance could not have been the subject matter of the said summons.

(2) whether the court could, pursuant to section 128(5) of the Customs Act, 1967, invoke the provisions of section 119 of the same Act and shift the burden of proof on to the defendants as owners of the conveyance to show that customs duties on the goods found in the conveyance but belonging to unknown persons had been paid when the subject matter for inquiry under the said summons should only have been goods found in the conveyance.

The facts in so far as they are relevant for the determination of these questions are that on April 11, 1973 three customs officers, acting on information, laid an ambush for motor car No. BAE 1024 at 12th mile Jalan Masai, Johore. On seeing the motor car approaching the road was blocked by placing a landrover across the road, however the motor car drove past, lost control, landed in a ditch and was abandoned. It was found loaded with the following goods (hereafter called 'the goods')—

(1) 7 cartons x 80 packets 'Pak Cheong Tong Hou' Chinese Patent Medicine.

(2) 8 boxes x 1 kati Korean Ginseng.

(3) 8 packages x 5 katies Ginseng.

(4) 41 packages x 1 kati Ginseng.

(5) 16 bolts of textiles measuring 1,002 yards.

No one came forward to claim the goods. Ownership to the motor car was claimed by Messrs. Keng Soon Finance Bhd. Kuala Lumpur.

Pursuant to section 128(4) of the Customs Act, 1967 (Act 235) (hereafter called 'the Act'), summons was issued by the Sessions Court Johore Bahru requiring Messrs. Keng Soon Finance Bhd. to appear before an enquiry to determine the claim. Either inadvertently or acting upon a supposition that it was necessary to state in the summons all the goods seized, the claimant was also notified of the goods found in the motor car where no claim was made within one calendar month from the date of the seizure and were therefore deemed to be forfeited under section 128(1) of the Act.

At the inquiry the President of the Sessions Court found that the goods were dutiable goods and an offence of being concerned in conveying dutiable goods under section 135(1)(e) was committed. As the motor car was evidently used in the commission of the offence it was therefore ordered to be forfeited. Keng Soon Finance Bhd. appealed to the High Court against the order. It was dismissed.

Two grounds were raised on appeal before Syed Othman J. (as he then was) as follows:—

(1) The learned President erred in law when he found that an offence under section 135(1)(e) of the Customs Act, 1967 had been committed when in fact the summons alleged that an offence under section 135(1)(g) of the Customs Act, 1967 was committed.

(2) In any event the learned President erred in finding that an offence under section 135(1)(e) of the Customs Act, 1967 had been proved when in fact there was no evidence on record of "knowledge" and "intention to defraud the Government".

On the first ground the learned judge had this to say—

"From the provision the presiding officer need only concern himself whether an offence under the Act has been committed and not any particular offence."

At the hearing before us, Mr. P. Cumaraswamy counsel for the applicants submitted that as there was no prosecution under section 135(1)(g) of the Act the presumption under section 135(2) cannot therefore be invoked and as such there is absence of proof of that essential element of knowledge to warrant a finding that there was a c