v.THE OFFICER-IN-CHARGE, POLICE STATION,GALENBINDUNUWEWA AND ANOTHER
COURT OF APPEALS. N. SILVA, J.
APPLICATION NO. 156/90
M.C. ANURADHAPURA NO. 5310416 JULY, 1990
Animals Act, Section 3A proviso – Transport of cattle – Confiscation of lorry -Standard of proof of defence.
In terms of the proviso to section 3A of the Animals Act, an order for confiscationcannot be made if the owner establishes one of two matters. They are:
that he has taken all precautions to prevent the use of the vehicle for thecommission of the offence;
that the vehicle has been used for the commission of the offence without hisknowledge.
In terms of the proviso, if the owner establishes any one of these matters on abalance of probability, an order for confiscation should not be made.
An order for confiscation could be made only if the owner was present at the timeof the detection or there was some evidence suggesting that the owner was privyto the offence.
Case referred to:
1. Nizar v. Inspector of Police, Wattegama (1978-79) 2 Sri LR 204.
APPLICATION to revise order of confiscation of lorry by Magistrate,Anuradhapura.
Faisz Mustapha, P.C. with Jayampathy Wickramaratne and T. S. Medahinna forpetitioner.
Nalinda Indatissa, S.C. for Attorney-General.
Cur adv vult.
16th July, 1990.
S.N. SILVA, J.
The Petitioner has filed this application in revision against the orderdated 21.1.90, made by the Learned Magistrate of Anuradhapuraconfiscating the lorry bearing No. 41 Sri 6544. The said order ofconfiscation was made in terms of Section 3A of the Animals ActNo. 29 of 1958 as amended by Act No. 10 of 1968.
The Petitioner is the owner of the said lorry which is subject to ahire purchase agreement. The lorry was detected by theGalenbindunuwewa Police on 31.12.89 in the course of a journey.There were several heads of cattle in the lorry and the driver Anwar,the cleaner Farook and one Kaffar who were in the lorry at the time ofthe detection were charged with the offence of transporting cattlefrom one administrative District to another without a permit. This is anoffence under the Regulation made in terms of Section 3 of theAnimals Act. The accused pleaded guilty and they were finedRs. 100/- each. Therefore the Learned Magistrate took steps in termsof Section 3A of the Animals Act for the confiscation of the lorry.
Faris v. The Officer-in-Charge, Police Station,Galenbindunuwewa and Another (S. N. Silva, J.)
The Petitioner sought to show cause against the confiscation, and aninquiry was held at which the Petitioner gave evidence. The PoliceOfficer who was engaged in the detection also gave evidence. ThePetitioner stated in his evidence, that he purchased the lorry about1 1/2 years prior to the incident and gave it out to a driver on acommission basis. The arrangement being that the petitioner got90% of the hire and the driver got 10%. The accounts were settled atthe end of every week. Anwar who was driving the lorry at the time ofthe detection was the third driver to whom the lorry was given on thisbasis. The Petitioner stated that he was a textile trader in Matale andthat he had no knowledge whatsoever of the commission of theoffence. He also stated that the lorry was normally used for thetransporting of timber and that he had warned his driver not totransport any goods where a permit is required without obtainingsuch a permit. The prosecution relied on the following items ofevidence to negative the defence of the Petitioner. They are, (I) thatthere were certain holes on the hood of the lorry, each being about 2feet in diameter and that there were iron rods fixed to the body of thelorry and the sides. This evidence shows that the vehicle had somespecial facility for transporting of animals, (ii) that on two previousinstances detections were made where the same lorry was used forthe transporting of animals contrary to the Prevention of Cruelty toAnimals Ordinance.
As regards to item (i), the petitioner stated that the lorry was in thatcondition when he purchased it. As regards to item (ii), the petitionerstated that he was unaware of those two previous instances. He alsostated that those drivers and the driver Anwar involved in the presentdetection were discontinued from service.
In terms of the proviso to Section 3A of the Animals Act, an orderfor confiscation cannot be made if the owner establishes one of twomatters. They are, (i) that he has taken all precautions to prevent theuse of the vehicle for the commission of the offence. (2) That thevehicle has been used for the commission of the offence without hisknowledge.
In terms of the proviso, if the owner establishes any one of thesematters on a balance of probability, an order for confiscation shouldnot be made.
This section has been considered in the case of Nizar v. Inspectorof Police, Wattegama.m In that case Vythyalingam, J. considered theimplications of the proviso to Section 3A. It is observed that in view ofthis proviso, an order for confiscation could be made only if theowner was present at the time of the detection or there was someevidence suggesting that the owner was privy to the offence.
In the facts of this case it is clear that the owner was far away fromthe place where the offence was detected. There is no evidence thatthe owner knew in any way that the lorry was being used on this dayfor the particular purpose of transporting the animals contrary to theRegulations made under Section 3. Furthermore, there is theevidence of the Petitioner that he had warned the driver not totransport anything that requires a permit without such a permit. In thelight of these contradicted items of evidence it would be not possibleto infer that the petitioner had knowledge of the commission of thisparticular offence. The presence of some special facility in the lorryfor the transporting of animals does not per se establish that theowner had knowledge of the commission of the particular offence.This however, could be a highly relevant fact, which may be usedtogether with some other evidence, to negative the claim of the ownerthat he had no knowledge of the commission of the particularoffence. In this case, I am of the view that there is no material tonegative the claim of the owner that he had no knowledge of thecommission of the particular offence.
I accordingly act in revision and set aside the order of the LearnedMagistrate of Anuradhapura dated 29.1.90 confiscating the lorrybearing No. 41 Sri 6544.
The application is allowed.
PARIS v. THE OFFICER-IN-CHARGE POLICE STATION GALENBINDUNUWEWA AND ANO