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182. Detention, seizure and condemnation of goods

(1) Any goods liable to forfeiture under a customs enactment may be seized or detained by a proper officer or police officer.

(2) Anything liable to forfeiture under a customs act —

(a) may be seized or detained in any place; and

(b) if seized or detained, shall be delivered to the Comptroller immediately unless the article is or may be required for use in connection with proceedings to be brought under a law other than a customs enactment.

(3) Where —

(a) the person seizing or detaining anything liable to forfeiture under a customs enactment is a police officer; and

(b) that article is required for use in connection with proceedings that may be brought under a law other than a customs enactment, the article may be retained in the custody of the police until either those proceedings are completed or it is decided that no such proceedings will be brought.

(4) Where the article may be required for use in connection with proceedings that may be brought under a law other than a customs enactment, notice in writing of the seizure or detention, with full particulars of the articles seized or detained, shall be given to the Comptroller immediately.

(5) Where an article is retained in the custody of the police under sub-section (3), a customs officer is authorised to examine it and take account of it while it remains in such custody.

183. Forfeiture of conveyances used in connection with goods liable to forfeiture

(1) Where an article has become liable to forfeiture under any customs enactment —

(a) any conveyance, animal, container (including any article of passenger’s baggage) or any other article that has been used for the carriage, handling, deposit or concealment of the article liable to forfeiture, either at the time when the article was in the commission of the offence for which it later became liable to forfeiture or after it became liable to forfeiture; and

(b) any other article mixed, packaged or found with the article liable to forfeiture, is also liable to forfeiture.

(2) Where a conveyance is or has been within the territorial waters of Antigua and Barbuda or within the borders of Antigua and Barbuda while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods, that conveyance is liable to forfeiture.

(3) If, at any time while a vessel is within the territorial waters of Antigua and Barbuda, any part of its cargo or any article carried on board is thrown overboard or is staved or destroyed to prevent seizure, that vessel is liable to forfeiture.

(4) Where any conveyance has imported cargo into Antigua and Barbuda and a substantial part of that cargo is afterwards found to be missing then, if the master, commander or his agent is unable to account for that missing cargo to the satisfaction of the Comptroller, that conveyance is liable to forfeiture.

(5) Where any conveyance has become liable to forfeiture, all tackle, apparel or furniture belonging to it is also liable to forfeiture.

184. Special provisions as to forfeiture of large vessels

(1) Notwithstanding any other customs enactment, a vessel of two hundred and fifty or more tons burden shall not be liable to forfeiture unless the offence in respect of or in connection with which the forfeiture is sought —

(a) was the primary purpose of the voyage during which the offence was committed; or

(b) was committed while the vessel was under chase after refusing to stop when required to do so.

(2) Where —

(a) any vessel of two hundred and fifty or more tons burden would, but for sub-section (1), be liable to forfeiture for or in connection with an offence under any customs enactment; and

(b) in the opinion of the Comptroller, a responsible officer, including the master, mate or engineer of the vessel or, in the case of a vessel carrying a passenger certificate, the purser or chief steward, is implicated by his own act or by neglect in that offence, the Comptroller may impose a fine on that vessel in any sum not exceeding $25,000, and until that fine is paid, may withhold clearance of that vessel.

(3) No claim shall be brought against the Comptroller for damages in respect of the payment of any deposit or the detention of any vessel under this section.

(4) The exemption from forfeiture of any vessel under this section shall not affect the liability to forfeiture of any goods carried on board.

185. Sale of certain seized goods

(1) Where —

(a) a living creature;

(b) any goods that are of a perishable nature;

(c) any goods that, in the opinion of the Comptroller, are likely to deteriorate or diminish in value during storage;

(d) any goods that, in the opinion of the Comptroller, it is desirable to sell immediately; or

(e) any goods that, in the opinion of the Comptroller, are likely to create a health or safety risk if stored in the premises by Customs, has or have been seized as being liable to forfeiture, the Comptroller may sell or destroy the article seized before its condemnation.

(2) The net proceeds of sale are deemed substituted for the article sold, and all the provisions of this Part, so far as they are applicable, extend and apply to those proceeds.

186. Sale of goods condemned as forfeited

(1) Any goods condemned as forfeited by virtue of the Fourth Schedule, or deemed to have been condemned as forfeited by that Schedule, shall, unless it is a prohibited or restricted article, be sold by public auction.

(2) Any auction under this section shall be advertised in the public media and the Gazette.

(3) The Comptroller shall authorise a person to act as auctioneer at an auction under this section.

(4) None of the following persons shall be permitted to bid for anything at an auction under this section —

(a) a customs officer; or

(b) any person who has or had an interest in the article being auctioned, and a person who makes a bid in contravention of this sub-section commits an offence and is liable on conviction to a fine of $10,000.

(5) All moneys arising from the sale of anything at auction under this section shall be used to pay —

(a) firstly, fees for the auctioneer;

(b) secondly, any duty payable on that article;

(c) thirdly, all the charges incidental to the sale, warehousing and carriage of that article; and

(d) lastly, all the charges incidental to the seizure of that article or to any condemnation proceedings for the article,

and any excess shall be paid by the Comptroller into the consolidated fund.

(6) The value for duty of anything sold at auction under this section shall be the price realised less the included duty.

(7) Any goods not sold at an auction under this section, and all prohibited or restricted goods condemned or deemed to be condemned as forfeited, may be destroyed or otherwise disposed of as the Comptroller may direct.

(8) Nothing in this section prevents the Comptroller from authorising the withholding from sale of anything condemned or deemed to be condemned as forfeited, and its use by the Department.

187. Sale of goods not condemned

(1) Where anything that is not condemned or deemed to be condemned as forfeited, is, by virtue of any customs enactment sold, it shall, unless it is of a perishable nature, be sold at a public auction.

(2) An auction under this section shall be advertised in the public media and the Gazette.

(3) The Comptroller shall appoint a person, who may be a customs officer, to act as auctioneer at any auction under this section.

(4) All moneys arising from the sale of anything at an auction under this section shall be used to pay

(a) firstly, fees for the auctioneer;

(b) secondly, any duty payable on the article; and

(c) lastly, all the charges incidental to the sale, warehousing and carriage of the article,

(d) And any excess shall, if application is made within 6 months of the sale, be paid over to any person who satisfied the Comptroller that he was the owner of the article at the time of its sale.

(5) The value for duty of anything sold under this section shall be the price realised less the included duty.

(6) The Comptroller shall sell any goods that are of a perishable nature in the manner that appears to him most likely to realise the largest sum.

(7) Any goods that cannot be sold at an auction under this section or by the Comptroller under sub-section (6) may be destroyed or otherwise disposed of as the Comptroller may direct.

188. Notice of seizure

(1) Where any goods have been seized, the proper officer shall, as soon thereafter as is reasonably practicable in the circumstances, give notice in writing of the seizure and the reasons for the seizure, in the prescribed form, to any person known or believed to have an interest in the goods, or where that person is overseas, to his agent in Antigua and Barbuda.

(2) Notwithstanding sub-section (1), a seizure is not invalidated or rendered illegal by reason of any failure to give such notice if reasonable steps were taken to give the notice.

189. Delivery of goods seized on deposit of value

(1) Where any goods have been seized as being liable to forfeiture, unless the goods are prohibited goods, the Comptroller may, at any time before their condemnation, deliver the goods to the owner or other person from whom they were seized, on the deposit with the Comptroller of a cash sum equal to the value of the goods, together with any duty to which the goods may be liable as determined by the Comptroller.

(2) The money deposited shall be deemed substituted for the goods seized, and all the provisions of this Part so far as they are applicable, apply to the money accordingly.

190. Protection of officers seizing or detaining goods

(1) Where, in any proceedings against the State or the Comptroller for the condemnation of anything seized as liable to forfeiture under any customs enactment, judgment is given for the claimant, the court may, if it sees fit, certify that there were reasonable grounds for the seizure.

(2) Where proceedings described in sub-section (1) are brought and judgment is given for the plaintiff or prosecutor, then if either —

(a) a certificate relating to the seizure has been granted under sub-section (1); or

(b) the Court is satisfied that there were reasonable grounds for seizing or detaining the article, the plaintiff or prosecutor shall not be entitled to recover any damages or costs and the defendant shall not be liable to any punishment.

(3) Nothing in sub-section (2) affects the right of any person to the return of the article seized or detained or to compensation for any damage to the article during the detention or destruction of it.

(4) A certificate under sub-section (1) may be proved by the production of either the original certificate or a certified copy of it, purporting to be signed by an officer of the court by which it was granted.

Appeals Against Seizure

191. Application for order disallowing seizure

A person claiming an interest in goods seized as being liable to forfeiture, may, within 20 working days after the date on which a notice is given to that person under section 189 or within such further time as the Court may allow, apply to the Court for an order —

(1) that the seizure is to be disallowed on the grounds that no reasonable cause for the seizure, or the continued detention, exists under this Act and that the goods are to be returned or otherwise made available to the applicant; and

(2) that the State must pay to the applicant a sum as compensation for any depreciation in the value of the goods resulting from the seizure or detention, and for any transport and storage costs, as the court thinks fit.

192. Court may disallow seizure

(1) Where an application is made under section 192, the Court may either dismiss the application or issue an order —

(a) that the seizure is to be disallowed in whole or in part and the goods are to be returned; and

(b) that the State is to pay to the applicant a sum as compensation for any depreciation in the value of the goods resulting from the seizure or detention, and for any transport and storage costs, as the Court thinks fit and any such order may be issued upon and subject to such terms and conditions as the Court thinks fit.

(2) Where the Court issues an order dismissing the application, that order is deemed to be an order for condemnation of the goods to the State.

(3) No order that the seizure of the goods is to be disallowed shall be issued if the Court is of the opinion that the goods or any of them are required to be produced in evidence in any proceedings pending under this Act or where there are proceedings pending that may result in condemnation of the goods.

(4) No order for the payment of compensation shall be made except in respect of goods that, in the opinion of the Court, were seized or detained without reasonable cause, and except to the extent that the Court disallows the seizure.

(5) Where the Court issues an order for the payment of any sum as compensation to any person under this section, the sum so awarded is recoverable by that person as a debt due from the State.

193. Application for order disallowing seizure where notice not received

(1) Except where the goods have already been condemned to the State, any person claiming an interest in goods seized as being liable to forfeiture under this Act who did not receive notice under section 189, may, within one month after the date on which the goods were seized, apply to the High Court for an Order —

(a) of a kind specified in section 193 where the goods seized have not been sold, destroyed or otherwise disposed of; or

(b) that compensation be paid by the State for the whole or part of any loss suffered by the applicant where the goods seized have been sold, destroyed or otherwise disposed of.

(2) The Court may dismiss the application under sub-section (1) or issue an order —

(a) of the kind specified in section 193 where the goods seized have not been sold, destroyed, or otherwise disposed of; or

(b) that compensation of such amount as the Court thinks fit be paid by the State to the applicant for the whole or any part of any loss suffered by the applicant where the goods seized have been sold, destroyed, or otherwise disposed of.

(3) No order for the payment of compensation shall be issued except in respect of goods that, in the opinion of the Court, were seized or detained without reasonable cause, and except to the extent that the Court disallows the seizure.

(4) Where the Court issues an order dismissing the application, that order is deemed to be an order for condemnation of the goods to the State unless the goods have already been condemned under section 195.

(5) Without limiting sub-section (2), the Court may dismiss an application under sub-section (1) that is not made as soon as reasonably practicable after the applicant became aware of the seizure of the goods.

194. Condemnation if no appeal against seizure

Where no application is made under section 192 within the time specified in that section, the goods shall be deemed condemned to the State as if such an application had been made and dismissed.

195. Condemnation if application discontinued

Where an application under section 192 or 194 is not completed, the goods are condemned to the State as if that application had been dismissed.

General Provisions as to Forfeiture

196. Condemnation of seized goods on conviction

(1) Subject to sub-section (2), where this Act provides that on the commission of any offence any goods are liable to forfeiture, the conviction of any person for that offence has effect as a condemnation, without suit or judgment, of any goods that have been seized in accordance with this Act and —

(a) in respect of which the offence was committed; or

(b) that were otherwise liable to forfeiture under this Act.

(2) Where the Court imposes a sentence on any person on the conviction of that person for an offence to which sub-section (1) applies, the Court may, if it thinks fit, order the restoration of the goods forfeited to the person from whom the goods were seized and, where such an order is issued the conviction does not have effect as a condemnation of those goods.

(3) In issuing an order pursuant to sub-section (2) the Court may impose such conditions as it thinks fit.

(4) Sub-section (2) does not apply where the goods have, before the conviction, been sold by public auction, or restored to the person from whom they were seized, or otherwise disposed of by the Comptroller under any other provision of this Act.

197. Disposal of forfeited goods

(1) The State has the property right to forfeited goods or to the proceeds of sale under section 186.

(2) Condemned goods may be sold by public auction, used, destroyed, or otherwise disposed of after their condemnation as the Comptroller may direct.

198. Application of forfeiture provisions

The provisions of this Act with respect to the forfeiture of goods extend and apply to any conveyance or other article forfeited under this Act, except where this Act expressly provides otherwise.