Jasbhai Umedbhai Patel v The People (Appeal No. 72 of 1970) [1970] ZMCA 12 (17 June 1970)

JASBHAI UMEDBHAI PATEL v THE PEOPLE (No. 2) (1970) ZR 66 (CA) COURT OF APPEAL 40 DOYLE CJ, PICKETT JA AND CHOMBA AGJ 17TH JUNE 1970 Appeal No. 72 of 1970 Flynote Exchange control - Violation of Exchange Control Regulations - Money 45 found with accused retained by authorised officer and produced in court as ordinary exhibit - Whether money had become property of the State - Whether order for forfeiture proper. 1970 ZR p67 DOYLE CJ Headnote The appellant was charged and convicted of violation of the Exchange Control Regulations. The money found in his possession was seized and produced in court as an ordinary exhibit. An order of forfeiture was made. On appeal the appellant was acquitted of the offence and the appellate court considered the issue of whether the order of forfeiture was proper. 5 Held: (i) Regulation 35 of the Exchange Control Regulations requires that if money is found and it is shown that an offence has been committed or reasonably suspected to have been committed, the authorised officer may seize and retain the money and in so 10 doing he must inform the person from whom it is seized of the seizure and retention and that the value of the money will be refunded in Zambian currency on demand. (ii) In the instant case since the authorised officer did not exercise his powers of retention under reg. 35, the money did not become 15 the property of the State. Legislation referred to: Exchange Control Regulations, 1965 (Cap. 593), r. 35 (3) (b). Judgment Doyle CJ: delivered the judgment of the court. The appellant won his appeal and we acquitted him at the last 20 sessions of this court in Lusaka. The only question is what order we should make in relation to the money seized. We quashed the order of forfeiture of the money seized and the whole question was had that money already become the property of the State. Regulation 35 of the Exchange Control Regulations provides that where money is found and the contents 25 show that an offence has been committed or reasonably suspected to have been committed an authorised officer may seize and retain the money. If he does he must forthwith inform the person from whom it was seized of the seizure and retention and that the value of the money will be refunded in Zambian currency on demand. 30 In this case no such information was given and the money was produced in court as an ordinary exhibit. We consider, therefore, that the authorised officer did not exercise his powers of retention under reg 35 and that the money did not therefore become the property of the State. Accordingly we order that the money be repaid to appellant. 35 As it has been argued by the State that the money had been seized and retained despite the non-compliance with the provisions of sub-reg. (3) (b) of reg. 35, we would draw attention to the dangers inherent in such a course. If the money were so seized and retained, the State would incur an obligation to refund its value to the owner. This would be so 40 even if the owner were subsequently convicted of an exchange control offence in relation to that money. The court's powers of forfeiture would therefore be stultified and the offender would avoid an ordinary result of his offence. Order for money to be repaid 45