(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. SALIH AHMED KOLEIB AND OTHERS

AC-CP-511-1964

 Principles

·  Criminal Law—Smuggflng——cjstoms Ordinance, 1939, S. 203 (i) (c) (v) (Amendment 1955) —Mere preparation is sufficient to convict under the section

Mere preparation is an offence under the Customs Ordinance. 1939. s. 203 (x) (c) (v) (Amendment 1 because the legislature has intended to exclude the application of attempt at common law to the section.

Judgment

Advocates: M. I. El Nur for the accused

Abdel Halim El Bashir for Attorney General for prosecutor

El Rayah El Amin J. August 9, 1966: —The accused in this case were brought for trial by a major court at Berber on July 8, 1964, presided over by the Resident Magistrate to answer charges under the Customs Ordinance, ss. 203 and 204 for trying to export g’ camels to the United Arab Republic without obtaining the necessary permits.

The facts as found out by the trial court were as follows:

A1, A2 and A3 happened to meet near Malawya of Kassala Province with g camels. They planned to export these camels to the United Arab Republic without obtaining the required permits for so doing. They employed the other six accused to drive the animals across the Northern Province through an obscure desert route. Fifteen days later, i.e., on January 25, 1964, near Been El Nigaim about 70 miles northeast of Abu Hamad, a police force intercepted A3—A9 and the camels and brought them to Berber. A1 and A2 remained at home, and decided to meet the caravan at Daraw in time.

On these facts, the major court found all accused not guilty under the Customs Ordinance, ss. 203 and 204, and ordered that the price of the camels be handed over to accused.

The case was sent for confirmation by the Chief Justice under Code of Criminal Procedure, s. 250. His Honour Imam J. by authority of the Chief Justice refused confirmation of finding of not guilty arrived at by the trial court, returned the case for revision of finding with a direction that a finding of guilty under the Customs Ordinance, s. 203 (i) (c) (v), be entered against all accused and the appropriate sentences be passed against each of them.

In his note, Imam J. pointed out that section 204 is not applicable to the case and that the proper section, which is applicable, is the Customs Ordinance s. 203 (i) (C) (v). He made it clear that the court went off the track by applying the law concerning attempts at common law, as the offence in this case is a statutory offence, and the legislature may decree as complete statutory offence an act which falls short of an attempt and which stops at mere preparation.

On reconsidering the finding, the court in spite of the direction by the appellate authority again found all accused not guilty under serti 203 (1) (c) (v). The court argued that the two elements of possession and intention are not sufficient to meet the requisites of the section, i.e., the section does not condemn an accu person who is merely found in possession of goods with the intention of exporting them unlaw fully; and, hence, the court concluded that section 203 (i) (c) (v) is a reiteration of the common law crime of attempt.

I must first point out that th trial court when passing its decision was not aware of the amendmtht ‘of section 203 (i) (c) (v) which was’ made in 1955, and that I am in complete agreement with the trial court that possession and intention only are not enough to meet the requisites of the section. The question of possession and intention will be discussed later by me in this judgment.

The section after amendment reads as follows:

“Any person who, without lawful excuse the proof whereof shall lie upon him, has in his possession goods in such circumstances as to raise the presumption that they have been or are intended to be imported or exported otherwise than through a Customs Station after completion of all the requisite formalities.”

The court should have complied with the directions of the appellate authority who made it clear that the statute in question punishes a crime at the stage of preparation, and that it puts the onus of proof ntrary to the ordinary rules of criminal law on accused to prove lawful excuse.

The case was, ther tore, remitted to the Court of Criminal Appeal.

Advocate M. I. El Nur appeared as pleader for all accused with the exception of A6 and a representative of the Attorney-General appeared for the prosecution.

I he learned counsel for the defence raised the following points.

The major court believed the urzsworn statements of A54 to A9, which were denied by A1 to A3, came to the conclusion that the camels were intended to be smuggled to the United Arab Republic without obtaining the necessary export licence. The advocate asserted that A1 and A2 were on their way to Khartoum to obtain the licences, when the camels were seized and that little weight should be given to the unsworn state rnents of the co-accused.

The allegation that A1 and A2 were on their way to obtain licences is not acceptable to us, as this was not proved in evidence before the trial court. The facts of the case were proved in evidence before the court below, and there is no justification to admit facts not brought forth before that court. I must not forget that Ar and A2 were giving their statements before the police, and in the trial never mentioned that they were on their way to Khartoum to obtain licences. The unsworn state ments of the co-accused were correctly accepted by the trial court, as there is suitIci# evidence to corroborate these statements, and there is no pokt itt asking that little weight should be put on these statements.

.4i .md P pu.a.once ot the sc:ron 2n (r (c (v’) to /uctice.

The learned councle for the defence mentioned that the 1955 legislation extended the scope of the offence of smuggling even to the simple possession of goods in such circumstances as to raise a presumption that the possession had the lp o smuggling them.

He started by quoting the example, which was given before by the presiding magistrate, i.e.:

“See how ridicfilous it would be to convict somebody lying on his bed in Khartoum simply because he announces his intention to smuggle some restricted goods he happened to have in his hand.”

He also went on to quote another example by stating that the section punishes the mere possession of goods anywhere in the Sudan, where it could be inferred from the circurmistances of that poccession that the possessor had the intention to smuggle them out of the Sudan. Let alone if he actually declared o r admited that intention.

In the first example, it is very clear that the facts given do not come within the ambit of section 203 (1) (C) (v), because in these facts we find the two elements of possession and intention, but there are no such cir cumstances as to raise the presumption that the goods have been or are intended to be imported or exported otherwise than through a customs station after completion of all the requisite formalities. In the example given even though the possessor declared his intention, he is not punish able under this section, because we find only the two elements of possession and intention, and the law never punishes intention and the fact that it was declared by the possessor does not change the situation.

In this section, the legislature meant to punish acts, which stop at mere preparation, and fall short of attempt, and, hence the fallacy of the argument that the section punishes a person lying on his bed at Khartoum becomes so obvious that it does not call for comment.

In the second example, I do not see why a person who is in possession of goods anywhere in the Sudan in such circumstances that he has the intention of smuggling them out of the Sudan should not be caught by this section.

To make myself more clear, let me give an example of a person who was arrested with restricted goods on the road leading to the aerodrorne at Khartoum in circumstances showing that the goods are intended to be smuggled, then the onus of proof lies on him to show lawful excuse; otherwise, he will be punishable under this section.

On the other hand, if a person was found in his house in Khartoum with restricted goods, and he declared his intention that he intended to smu.ggle them, he will not come under this section, and this point has already been elucidated by me before in this judgment and I need not repeat it again.

The I955 amendment was made by the legislature in order to widen the scope of the section, and have a tighter grip on smugglers, by omitting the words the Custom Boundary.

The section has to be interpreted according to its ordinary meaning, and, if we interpret it otherwise, as argued by counsel, then we will be imputing an intention different from the intention of the legislature.

If the legislature is oppressive, the proper course is that it has to be amended by the legislature. It is not for the courts to interpret the legis lation otherwise, as the courts must adhere to it.

The circumstances in which these camels were found near Beer El Nigaim could never raise a reasonable presumption that they were intended to be smuggled without completing the requisite formalities.

I need not embark on a long discussion on this point, as it was already shown in this judgment that A and A2 were not on their way to Khartoum to obtain permits, and that the proved facts of the case show that the camels were found in such circumstances as to raise a presumption that they were intended to be smuggled.

The camels were found on an obscure desert route leading to the United Arab Republic, and most of the accused confessed that the camels were intended to be smuggled to the United Arab Republic.

The section puts the burden of proof on the accused, and it is for them to prove otherwise.

On the proved facts of this case, and taking into consideration the 1955 amendment, I am of the opinion there is suificient evidence to convict accused under the Customs Ordinance. s. 203 (i) (C) (v).

Therefore, I refuse confirmation of finding of not guilty under section 203 (1) (c) (v), return case and order retrial by a newly constituted court presided over by the Province Judge.

Abdel Magid Imam J. August 9,1966: agree. M. E. Mobarak J. August 9, 1966: —I agree.