(COURT OF CRIMINAL APPEAL)·
SUDAN GOVERNMENT vs. MOHAMED DUHA
A.C-C.C.A.-1-58
Principles
· Criminal law-Smuggling of gold-forfeiture of goods-Sections 198 of the Customs Ordinance.
The Accused, Ahmed Mohd. Duha, a lebanese, was on 12th June 1958 found guilty by a Major Court under sections 203 and 207 of the Customs Ordinance for having on 12th February 1958 imported into the Sudan 20 kilos of gold without a licence. The Major Court find the Accused £S.1000 but refused to order forfeiture . the confirming authority, under section 261A C.C.P, confirmed the finding under section 203 but sent the case back for revision of sentence particularly with a view to reconsidering the question of forfeiture claimed by the Attorney-General. On revision the Major Court reduced the fine to £S.100 and refused to order forfieture, on the ground that

1. The Accused in whose possession the gold found was not the owner thereof within the meaning of section 2 of Ordinance and notice to hime can not be a proper notice under section 198 (1); and
2. that forfieture is impossible because.

(a) there was a claimant who notified the Director of Customs on 2nd April 1958 of his claim and the Director failed to comply with subsections (5) and (6) of section 198; and
(b) that the claim in any case was not in time since the notice for the Attorney-General Appealed.
Held by the Court of Criminal Appealed:
1.That the Accused is covered by section 2 of the Ordinance because he was the “person in possession and having control of the goods at the time of seizure.”
2.The words “brought a claim” in subsection (6) of section 198 of the Customs Ordinance cover the person from whom the goods were seized, and are not confined to the claimant in subsection (2)-interpretation of “brought a claim” by Watson J. in PS/CS/434/49 not approved; and
3.that the period for a claim of forfeiture as fixed by subsection (6) is three months from the date of receiving notice of claim and not from the date of seizure or notice of seizure.
The gold was therefore forfeited to the Government.

Advocates: Salih Farah…………..For the Attorney-General
Abdin Ismail…………For the Accused.

Judgment:
This case was remitted to the Court of Criminal Appeal under section 261A of the C.C.P for a decision on the correctness or otherwise of the refusal by the Major Court (sitting at Khartoum Ist June 1958) to pass and order for forfeiture of goods under section 195 of the Custuoms Ordinance 1939.
The Accused-Ahmed Mohammed Duha- a Lebanese was on 12th June 19589 found guilty by the said Major Court under sections 203 and 204 of the Customs Ordinance for having on the 12th February 1958 imported into the Sudan twenty kilos of unworked gold without a licence from the Director of the Ministry of Commerce as is required by the Supply (Import Licences) Order 1947. The Court passed a sentence of £S.1000 fine but refused to impose forfeiture as claimed by the Chief Customs Officer under the section above referred to.
The Chief Justice confirmed the finding under section 203 but refused confirmation of the finding under section 204. in the meantime he returned the case for revision of sentence, and is particular with a view to reconsideration of the question of forfeiture claimed by the Attorney-General on behalf of the Chief Customs Officer.
On revsion, the Court reduced the fine to a sum of £S.100 being the maximum awardable under sectoin 203 of the Customs Ordinance and
maintained that as the provisions of section 198 of the Customs Ordinance were either inapplicable altogether or, where applicable, were nor complied with by the Customs Authorities, then forfeiture is impossible.

The Court maintained:
First, that as the Accused in this case had no power of disposition over the gold, he can hardly be designated as owner within the meaning of section 2 of the Ordinance, and so notice to him can not be a proper notice under section 198 (1) of the Customs Ordinance;
Secondly, that as in this case there was a claimant of the gold, viz. Abdel Gadir Bagdash (also lebanese) who notified the Director on 2nd April 1958 of his claim to the gold seized and received no reply satisfying the requirements of section198 subsection (5) of the Customs Ordinance within the three months, limit prescribed by subsection (6) then forfeiture is impossible. This is because- in the opinion of the Court – the words “brought a claim” within the meaning of the subsection last referred to mean brought a claim against the claimant referred in section (2) and not against anyone else. On this point, the Court was relying on an interpretation of Watson J.’s in PS/CS/434/49;

Thirdly, that even assuming a claim for forfeiture was duly made by the Attorney-General on behalf of the Customs Authorities in the proceeding under consideration, then such a claim would also be barred in as much as it as it was not made within three months from the date of notice of seizure viz. 16th February 1958.
From its decision of the Major Court, the Attoney-General Appealed before us here, the Attorney-General was represented by Sayed Salih Farah , Abdel Rahman and the Accused by Advocate Abdin Ismail.
Sayed Salih stated that he relied on the reasons given in the memorandum of Appeal. We are giving raised in the Judgement of the Court. These are:
(a) that Accused is an owner within the definiton of section 2 of the Ordinance because he is either an importer, agent or perston in possession of or having control over the gold at the time of seizure.
(b) That if PS/CS/434/49 meant to lay down a rule that once notice of claim is received from someone purporting to be the beneficial owoner, then the Chief Customs Officer has to disregard altogether the person in possession (on whom a notice of seizure under subsection(1) was served) and deal with such claimant alone then the decision is wrong and not binding upon this Court’
(c) That the claim for forfeiture made by the Attorney-General in the proceedings under consideration was not out of time because it
Was made within three months from the date of reciept of the notice of claim from Bagdash and was therefore within the prescribed time.

Advocate Abdin, while that Major Court’s limited interpretation of the word “owner” is not acceptable, attempted to stress two points viz:-
(i) that once there is a claim to the goods seized by someone who is not being prosecuted, then the Chief Customs Officer has one of two courses open to him viz. either to ask such claimant to institute civil proceedings for recovery of the goods or himself to raise a civil suit for enforcing forfeiture. In other words- in the learned counsel’s contention- the way to make a claim in a presecution as provided for in the second leg of subsection (8) is closed to the Chief Customs Officer.
(ii) That the claim (for forfeiture) having been made in this case for the first forme after these proceedings were returned for revision of sentences, then that claim is barred by subsection (6) of the Ordinance which says:-
“ If within three months after receiving the notice of claim, the Chief Customs Officer has neither required the claimant to institute a civil suit nor himself brought a claim for the forfeiture thereof, the goods so seized or any security given to the Director in accordance with the provisions of subsection (7) of this section shall be handed over to the claimant.”

In the learned Advocate’s submission, the words “brought a claim” in this subsection had already been interpreted by Watson J. in the civil suit referred to in the judgment of the Major Court.
It can easily be noticed from the above- as well as from a persual of the proceedings under consideration-that there is much in common between the grounds of the judgment and the submission of the learned Counsel for Accused. This is because the judgment itself was simply a reiteration of the learned Counsel’s submissions in the Court below. It will be evident from a close consideration of the two points contained in the learned Counsels’s submissions that they are basically inter-related or rather that one of them is nothing but a consequence of the other; for if it is submitted that once there is a claim by someone not amenable to prosecution then the only course open to the Chief Customs Officer is to institute a civil suit, then it would follow as a matter of course that to disgregard such claimant altogether for a period of three months would render forfeiture impossible because out of time.
We think that a proper understanding of section 198 of the Customs Ordinance does not call for too much acuem because the points invovled
There in are far easier and more comprehensive than what the Court or the learned Counsel for Accused are trying to make them.
The requirments of the said section are:-
(a) A notice of seizure by the Chief Officer under subsection (1);
(b) A notice of claim by any owner under subsection (2);
(c) Either;
(i) A reply by the Chief Customs Officer to the claimant calling upon him to institute civil proceedings;
(ii) A claim for forfeiture by the Chief Customs Officer, A claim for forfeiture can be made either by instituting A civil suit or in a prosecution.
There are important limitations of time to be observed, for a notice of claim under subsection (2) must be made within three months from the date of the notice of seizure under subsection (2). Once a notice of seizure is made by the Chief Customs Officer and a claim is made in respect of the goods (whether by the true owner or by the person in possession at the time of seizure), the Chief Customs Officer is not at all bound to adopt any defined course at action, for the Ordinance gives him a discretion. He can write back to him who tendered the claim, or-if that course seems to him unnecessary- he can proceed straightway with a claim for forfeiture under clause (b) of subsection (5). The period for such a cliam as fixed by subsection (6) is three months from the date of “receiving notice of claim” and not, as the Court wrongly assumed, from the date of seizure or notice of seizure. In the case under consideration the three months should therefore count from 2nd April 1958 i.e. the date of the notice by Bagadash. But the learned Counsel for Accused denies the making of any claim for forfeiture by the Chief Customs Offier within three months from 2nd April1958. He contends that the words of the learned representative of the Attorney-General at p.24 of the proceedings drawing the attention of the Court to the forfeiture provision of the Ordinance can not be taken to mean that the Attorney-General was making a claim for forfeiture within the meaning of the Ordinance. As we understand him the learned Counsel seems to contend that unless the specific words “ I claim forfeiture” were used by the Attorney-General then the Court ought to disregard his cliam.
We sincerely hope that the learned Counsel for the Accused is not seriously pressing an argument which would take use back to the days of the legis actions of the Romans. It would be enough to grant a remedy in any Court in the Sudan if the claimant uses any words from which his intention could unequivocally be inferred, and that is exactly what happened in this case. The Court understood by the reference of the Attorney-General to section 195 of the Ordinance that he was claiming forfeiture under that section, for it said at p.35 “The Courst finds that the application for forfeiture made by the prosecution can hardly be granted.
We now come to the judment of Watson J., of which a copy was made available before us. With great respect to him, we consider that Watson J.’s interpretation of the words “brought a cliam” appearing in subsection (6) can not be accepted by this Court, for it simply imports a restriction on the discrection of the Chief Customs Officer which is not warranted by the wording of the section. The words “brought a claim” have to be read in the light of subsection (8) of section 198 which says “ a claim for the forfeitur of… goods may be brought either by a civil suit in accordance with the provisions of the Civil Jusitice Ordinance or in any customs prosecution for any offence which also constitutes the ground upon which such forfeiture is claimed.”
If we are to say that in case a claim is made by any person other than him who is prosecuted, then only way open to the Chief Customs Officer-if he wants to claim forfeiture- is to bring a civil suit then we would be restricting the discretion of the Chief Customs Officer not only to illogical but to unworkable limitsl. For the Chief Customs Officer will find himself in a great percentage of the cases complled to prosecue the person accused of the contravention and at the same time sue the claimant in the Civil Courts. Furthermore, he may even find himself in the situation that he has to bring as many civil suits as there are claimants, for there may be different persons claiming to have varying interests in the goods seized. If the Chief Customs Officer in such a case fails sue of those contesting cliamants, he may find that he is unable to secure forfeiture and an important object of the Ordinance would have been defeated. That a claim for forfeiture can be made in criminal proceedings at all times and irrepectives of whether or not the Accused is the beneficial or real owner, is indubitably the meaning of subsection (8) which has already been quoted in the earlier parts of this judgment. We would only like at this juncture to stress the words “in any customs prosecution for any offence which also constitutes the ground upon which such forfeiture is cliamed.” If the legislature intended the meaning ascribed to the section by the learned Counsel for the Accused, then we can see no reason for the use of so many words to convey a meaning which could have been shortly and more neatly conveyed by the words “ in criminal proceedings” or any similar words. The words used by the Legislature convey the idea that the person who would ultimately suffer financially may not be the person proseuted but may be another person altogether, having no relation whatsoever with the offence committed.
We are therefore of the opinion that the refusal by the Court below of the claim for forfeiture is wrong. We hereby confirm the senctenc of £100 fine and order that the gold seized be forfeited.
(Order accordingly)