BEFORE A.H.M.D. Nawaz,J.
Basheer Ahamed with A.A.M.Illiyas, Sanjaya Wilson Jayasekera, Tharindu Sampath Rathnayaka and Suhadini S. Punchihewa for the Plaintiff-Appellant
Vikum de Abrew SDSG with Yuresha Fernando SSC for the Defendant-Respondent
Decided on 20.12.2019
"Any person in Sri Lanka or resident in Sr Lanka must be interpreted holistically and harmoniously and it cannot certainly embrace a foreign passport holder waiting or proceeding to the transit lounge to board a connecting flight. Even if it is interpreted that a foreign national is in Sri Lanka the moment he has set foot in Sri Lanka, has he imported into Sri Lanka the prohibited item? That is the relevant question that is before this Court. Even if these words (in Sri Lanka) in Section 51 (1) are interpreted to embrace a foreign national who has landed in Sri Lanka with gold but has not crossed the passport control with the prohibited goods, would he have committed the offence?
Kumarsinghe's case is no authority for that proposition because those were not facts in that case as they are in the instant case before me.
Can a foreign national transient as he is as he is transiting in Sri Lanka be categorized as a person who contravenes Section 21 (1) of the Exchange Control Act? Are these persons in transit required to seek and obtain a prior permit from the Central Bank? No doubt they need the authorization if it is an import.
Why was not the mere carrying of gold in transit by a foreign passport holder without a permit specifically provided for in the legislation? Is mere carrying without more prohibited? If it is an import into Sri Lanka that is crirninalized, is that foreign passport holder importing into Sri Lanka when he is en route to a different country with gold?
The principal question before this Court is whether the Plaintiff imported into this country the 50 slabs of gold. Undoubtedly D.P.S.Gunasekera, J in the Kumarasinghe case declared that the term "importation" is not defined in the Exchange Control Act. While holding that on the admitted facts Section 21 (2) had not application in the case, the learned judge posed the question whether Kumarasinghe who had removed the gold from the aircraft and brought it to the transit lounge can be said to have imported the gold. Since the Exchange Control Act had not defined the term "importation", Justice Gunasekera had recourse to Section 22 of the Imports and Exports Control Act No 1 of 1969 which lays down that "import" with its grammatical variations and cognate expressions when used in relation to any goods means all importing or bringing into Sri Lanka or causing it to be brought into Sri Lanka whether by sea or by air of such goods. With due respect, I must observe that without analysing the collocation of words inherent in Section 22 of the Imports and Exports Control Act No 1 of 1969, the Court of Appeal arrived at the conclusion:
"Going by this definition we are of the view that the moment the accused-respondent landed on Sri Lankan soil with the brief case containing gold the act of importation was complete and that ifhe failed to produce the requisite permit for possession of that gold he has contravened the provisions of Section 21 (1)."
Apart from the fact that Kumrasinghe case does not deal with a foreign passport holder who is only transiting, with due respect I must observe that there is a paucity of discussion on the collation of words "all importing or bringing into Sri Lanka or causing it to be brought into Sri Lanka whether by sea or by air of such goods" found in Section 22 of the Imports and Exports Control Act No 1 of 1969 to which the case alluded. The words "importing into Sri Lanka" received scant attention in that case.
Interpretation on the word Import:
"Import' is derived from the Latin word importare which means' to bring in' and 'export' from the Latin word export are which means to carry out but these words are not to be interpreted only according to their literal derivations. Lexico logically they do not have any reference to goods in - 'transit'- a word derived from 'transire' bearing a meaning similar to transport, i.e., to go across. The dictionary meaning of the words 'import' and 'export' is not restricted to their derivative meaning but bear other connotations also." See- The Central India Spinning and Weaving and Manufacturing Co. Ltd vs. The Municipal Committee (Wardha) 1958 SCR 1102: 1958 SCJ 604: AIR 1958 SC 341: 1958 Nag LJ 595. So this case clearly put transit goods beyond the pale of imported goods. "Import":
Context: Customs Act, 1962 Sec. 29 to 35, 45 to 47, 14(1), 2(23), 2(27) 'The 'import' of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of mass of goods within the country the taxable event being reached at the time when the goods reached the custom barriers and the bill of entry for whole consumption is filed."
See Garden Silk Mills Ltd vs. Union of India 113(1999) ELT 358: 1998 (8) SCC 744: AIR 2000 SC 33: 1999(8) Supreme 476: AIR 1999 SCW 4150:JT 1999(7) SC 522: 1999(6) SCALE 285.
See also: Udayani Ship Breakers Ltd vs. Commissioner of Customs and Central Excise (Act of 'import' is over when the importer opened the letter of credit in favour of foreign seller and remitted the amount to seller) 195(2006) ELT 3: 2006(3) SCC 345 : 2006(2) SCALE 277 : JT 2006(2) SC 336 : 2006(2) Supreme 215 : 2006(2) SLT 170.
All these cases quite conclusively establish that import connotes the passing of goods beyond passport control and this never takes place when a transit passenger carries goods to another country as a transit passenger. Kumarasinghe case never went into this and therefore it is distinguishable in this respect.
So the finding of the District Judge that the Plaintiff-Appellant had imported into Sri Lanka the gold is erroneous and I therefore proceed to reverse that finding and hold that the Plaintiff did not import into this country the 50 slabs of gold. In the circumstances the decision to forfeit the goods was erroneous and unlawful."
