THAMOTHERASr, J.—das tin v. Bandctra
1970Present: Thamotheram, J.
K. JOSLIN, Appellant, and S. BANDARA (Range Forest Officer),
S. C. COO l GO—31. C. 31 alar a, 46922
Fore3t Ordinance (Cap. 451)—Section 40—Power oj Court to confiscate a motor vehiclethereunder—Scope.
Whore tho drivorof a lorry usos the lorry to commit an offence in contravention• of tho Forest Ordinance, an order of confiscation of tho lorry cannot bo matlonndor section 40 against tho o«nor if ho was not in any way privy totho commission of tho offonco or had no reason to anticipato tho commission oftiro offonco.
Appeal from an order of the Magistrate’s Court, Matara.
0. de Zoysa, with Justin Perera, 3[. 31. Deen and Amara Wellapili,for the claimant-appellant.
C. Dahanayake, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
October 2, 1970. TirAMOTHERa-sr, J.—
This is an appeal from the order of the learned Magistrate confiscatinglorry No. CN 139G belonging to the appellant, under Section 40 of thoForest Ordinance.
The driver of the lorry pleaded guilty to a charge under the ForestOrdinance and the lorry was liable to forfeiture provided that where thoowner proved to the satisfaction of the Court that he had used allprecautions to prevent the use of the motor vehicle for tho commissionof tho offence, no such order shall be made.
The precautions taken or the absence of any such precautions must bedetermined in relation to the actual offence committed and the circum-stances under which it was committed. On the day that the offencewas committed in the morning the lorry was used to transport goods forthe Co-operative Society. In the evening the lorry was sent to transportsome household goods to Kamburupitiya. Thereafter the driver withoutreference to the owner or to her husband who was managingthe business of hiring the lorry, transported timber, without a permit, incontravention of the Forest Ordinance. In such a case I cannot seewhat effective precautions could have been taken by the owner. Ithas not been suggested that the owner or her husband were in any wayprivy to the commission of the offence or had any reason to anticipatethe commission of the offence. In the.-.c circumstances I am of the viewthat the owner had led sufficient ev idence to show that all precautionswhich could have been taken, had been taken.
. I set aside the order of confiscation and direct that tho lorry be returnedto the owner.-
Order set aside,
K. JOSLIN, Appellant, and S. BANDARA (Range Forest Officer), Respondent