Case No.:

AC-CR-REV-28-1962

Court:

The High Court of Justice

Issue No.:

1962

Principles

·  Criminal Law—Forfeiture—Means of conveyance of smuggled goods—Customs Ordinance 1939. S. 194 (a}—Owner or his agent must have authorised illegal use

Four men were convicted of smuggling sugar from Ethiopia in applicant’s lorry. Sugar and lorry were ordered forfeited. Applicant, owner of the lorry, applied for revision of the order of forfeiture on the grounds that neither he nor his agent authorised or knew of the illegal use to which accused put the lorry.
Held: the lorry used to transport smuggled goods should not be forfeited under Customs Ordinance 5939, S. 194 (a), since neither the owner nor ‘his agent authorised or knew of the illegal use.

Judgment

(CRIMINAL REVISION)

SUDAN GOVERNMENT v; GASM EL SID IBRAHIM

AC-CR-REV-28-1962

Advocate: El Sayem Mohamed Ibrahim ... for the accused

M. A. Abu Rannat C.J. May i8, 1962: —This is an application foe revision by advocate El Sayem Mohamed Ibrahim on behalf of Gasm El Sid Ibrahim, the owner of lorry No. A.4884, against the order of forfeiture of the said lorry.

The undisputed facts are these. On May 20, 1961, at about ii p.m. the police found a lorry carrying 6o sacks of sugar which proved to be smuggled from Ethiopia. Four persons were ‘tried and convicted under the Customs Ordinance. The first accused admitted ownership of the sugar. The second accused was the driver of the lorry. The third and fourth accused was assistant drivers who helped in loading the sugar on the lorry. First accused was convicted under Customs Ordinance, s. 203, and the three other accused were convicted for abetment of the above offence under Penal Code, s. 84, and Customs Ordinance, s. 203. The sugar and lorry were forfeited.

This application is concerned with the forfeiture of the lorry only.

It has been proved that the owner of the lorry, Gasrn El Sid Ibrahim, was at the time of the commission of the offence at Hedjaz outside the Sudan and that he had no knowledge of the offence. Therefore the for feiture of the lorry depends on the meaning of the word “owner” as defined in the Customs Ordinance and in Customs Ordinance, s. 203 (i).

The definition section of the Customs Ordinance reads:

“‘Owner’ in respect of any means of conveyance, includes every person acting as agent for the owner or authorised by the owner to receive freight or other charges payable in respect thereof.”

The agent for the owner has been proved to be his brother, Abdel Gaul Ibrahim, who was not accused in this case, nor was it proved that he knew the lorry was used for the carriage of the sugar.

It remains for me to decide whether the second accused, the driver, “was authorised by the owner to receive freight or other charges payable ‘in respect thereof.”

The learned magistrate in his note for sentence stated that the word “knowingly” used in the Customs Ordinance, S. 194 (a), does not mean knowledge by the owner, but it means knowledge by the person using the lorry, who, in his opinion, was the driver. With respect to the learned magistrate, Customs Ordinance, S. 194 (a), is limited by the words subject to the same being duly or deemed to be condemned under the provisions of this Ordinance.” There are other sections of the Ordinance, which deal with the liability for forfeiture of the means of conveyance. If we follow the reasoning of the learned magistrate, the result would be awkward. Suppose the driver, the second accused in this case, stole the lorry from its owner and used it in carrying the smuggled goods. Would the lorry in that case be liable for forfeiture’

This leads me, to the Customs Ordinance, s. 203 (2), which reads:

Any master or owner of a means of conveyance who uses it or knowingly suffers it to be used in smuggling shall be liable to the same penalties.”

Again this depends on the fact whether the owner or his agent authorised the driver to receive the freight or other charges payable in respect thereof, in other words whether the owner or his agent authorised the driver to carry the smuggled goods or receive the charges for carrying them.

The lorry driver told the magistrate on May 21, 1961, that he left Gedaref carrying 15 barrels of water which he delivered at the agricultural scheme of the lorry owner, and that after the delivery of water at the scheme the first accused told him of his intention to buy or bring the smuggled goods.

Abdel Galil Ibrahim, the agent of the owner, stated that he authorised the driver to send water to the labourers at the owner’s scheme and that he never authorised him to carry smuggled goods.

The prosecution did not produce evidence to rebut the explanation given by the owner’s agent, and in the absence of such evidence I see no reason why the court did not believe him.

In the circumstances I am of the opinion that neither the owner nor his agent authorised the driver to carry the smuggled goods, and consequently the lorry should not be forfeited. An order to this effect is made on the sentence sheet.

[Editor Note. —ln Sudan Government v. Abdel Rahim Ali Sherif, AC CR-REV-86-J 962, Babiker Awadalla J. stated: “in my view, confiscation of this lorry would not have been possible on the ‘evidence now available. in order for such confiscation to be proper, the prosecution ought to have proved that accused 3 was an ‘owner’ of the lorry under Customs Ordinance. 5. 203 (2). ‘Owner’ in the context referred to means ‘every person acting as agent for the owner or authorised by the owner to receive freight or other charges payable in respect thereof’ (cf. the definition in Customs Ordinance. s. 2).

No evidence whatsoever was brought forward by the prosecution that accused 3 was acting as an ‘agent’ of the owner or in any way ‘authorised’ by him to receive charges payable in respect thereof. These facts cannot be assumed in favour of the prosecution by the mere proof of the fact that accused was the driver of the lorry, or that, he was handling goods or loads in his capacity as such driver.”]