(CRIMINAL REVISION)

SUDAN GOVERNMENT v. MOHAMED MAHFOUZ AND ANOTHER

AC-CR-REV-408-1966

 Principles

·  Criminal Law—Smuggling-Customs Ordinance, s. 203 (i) (b)— Lawful excuse means excuse not prohibited by law

According to Customs Ordinance. s. 203 (1) (b), the phrase lawful excuse means an excuse which is not prohibited by law, i.e., legal excuse.

Judgment

Advocate: Abdel Halim El Tahir for accused

Salah E. Hassan I. (By authority of the Chief Justice), February 15, 1967: —The facts as believed by the court below were that accused was permitted to export camels to Libya, which he did. He failed to transfer the price of the camels to the Sudan because the currency exchange agreement has not yet been concluded between Libya and the Sudan. He has either to wait the completion of the agreement or accept the value of his camels in kind. This he had to do and he bought with the permission of the Libyan authorities goods. He hired a big lorry to transport the goods across the desert to the neareast Sudanese town which is Fasher. All the invoices concerning the goods in the lorry were kept by accused.

The first Sudanese police station by which they passed was Millit. They stopped there and declared the lorry and its contents and the purpose of the journey. A policeman accompanied them to Fasher whence this prosecution. The court below is convinced that accused was not intending to evade payment of customs. The Presiding Magistrate said: “The court believed the accused and did not question his honesty. I am also satisfied that this is an established fact.

There is no customs station on the borders between Libya and the Sudan up to Fasher. The customs station is at Gineina, i.e., the borders between Chad and the Sudan.

The court below found accused Mohamed Mahfouz Mohamed guilty under the Customs Ordinance, s. 203 (b) (vii), and also Mohamed Ahmed El Jeiad guilty under section 208 of the same Ordinance. The court based its conviction on the fact that accused was found in possession of goods at Millit which were imported from Libya not through a customs station and that he had no lawful excuse for their possession. The court argued that the Customs Ordinance does not leave much for morals of the people and so people cannot choose their route of export and import. They have to come across the nearest customs station however long the journey may be.

Let us discuss the law the subject of this prosecution. The charge against accused No. 1 was based on section 203 (i) (C) (vii), i.e., any person who without lawful excuse the proof whereof shall lie upon him has in his possession in any of the following circumstances:

Goods imported or exported or attempted to be imported or exported otherwise than through a customs station and after completion of all the requisite formalities there

The second accused was charged under Customs Ordinance, s. 208, as an abettor because he drove the vehicle, which was carrying the goods, in question.

The accused in this case was found in possession of goods, which he is attempting to import into the Sudan. There is no customs station on that border (Sudan, Libya) by which the goods were brought.

The operation of the strict liability embodied in this section shifts the burden from the prosecution to the accused whereupon in order to escape liability he had to prove that he has a lawful excuse for the possession of the goods in the circumstances they were found with him. Herewith springs the question: What is meant by lawful excuse? The word lawful is not defined anywhere in our Sudan laws but in my opinion the word legal is synonymous in any respect to the word lawful and by Sudan Penal Code, s. 30 (a), we have a definition for the word “illegal.” It says

“Everything which is prohibited by law or which is an offence or which furnishes ground for a civil action is said to be illegal.” From this definition I will take it for granted that the words lawful excuse referred to in the section of the Customs Ordinance means “an excuse which is not prohibited by law: and which is neither an offence in itself nor furnishes grounds for a civil action.

What has accused done in this case? Circumstances compelled him to accept goods in lieu of his camels. This is neither an offence nor prohibited by any law in force. This barter was done with the consent of authorities in Libya. These goods, the subject of this case, are not restricted nor prohibited goods. Accused intended to import these goods into the Sudan. He drove from Libya across the desert and reported to the first police station on the way which is Millit police station; some few miles away from Fasher. This is import of goods by land and it is governed by the Customs Ordinance, s. 114 (1) (2), which says:

(i) Goods imported by land shall be brought without delay to the customs station which is nearest to the place of import by the defined route for land carriage from the frontier or if no route is defined by the usual routes without duration.

In our present situation there is no customs station between the Libyan frontier and the Sudan. The only customs station is at Cinema. There is no defined route from Libya to Gineina because there is no traffic of merchandise between Libya and the Sudan and accordingly there is also no usual route. If accused wanted to get to Cinema, first he had to go through Chad and according to the advocate’s submission, Chad was in a state of war at that time and there was no security.

The second part of section i x covers our present case and it specifically refers to situations where goods are being imported otherwise than through a customs station. The only requirement of the law is that a manifest showing the nature and quantity of such goods should be carried by the person in charge of the conveyance. This has been properly done by A2 in our present case. He was carrying proper official documents showing the nature and description of the goods in the lorry.

Accused proved convincingly that he never intended to evade payment of customs, that the goods were properly manifested, that they are not restricted nor prohibited goods. He further explained the circumstances, which compelled him to buy these goods. I believe that accused has discharged the burden of indicating the lawful excuse or excuses for possession of the said goods in the circumstances it was found.

We should not lose sight of the paramount aim of the customs laws which is a protection to the revenue system as well as to honest importers, its provisions have been included in the Customs Ordinance having in view the prevention of an illegal or illicit traffic and intended to prevent fraud, suppress public wrong and promote the public good.

The act of accused in this case does not contravene any of these basic notions.

In the circumstances I have decided to quash the convictions of accused No. 1 and accordingly the sentence and orders of forfeiture are hereby cancelled. Automatically the conviction against A2 is also quashed because he abetted an offence. Fines paid to be refunded.

It is further ordered that the goods are to be retained until the payment of Customs Dues and completion of other formalities.