Sri Lanka Law Reports
[2010)2 SRI LR.
Considering the provisions laid down in section 40(a)read with section 25(2) of the Forest Ordinance, would it besufficient to merely state that the vehicle in question was notunder the control of the representative of the appellant? Theanswer to this question is purely in the negative for severalreasons.
As has been clearly illustrated by several decisionsreferred to above, it would be necessary for the ownerof the vehicle to establish that the vehicle that had beenused for the commission of the offence had been so usedwithout his knowledge and that the owner had takenall precautions available to prevent the use of thevehicle for the commission of such an offence.
Several measures could have been taken in this regard.For instance, there could have been a clause to that effect inthe agreement between the appellant and the 1st respondent.Similarly if the 1st respondent had authorised others to usethe said vehicle, he too could have had a written agreementinclusive of specified conditions. It is therefore quite clear thatit would be necessary for the owner to show that he has takenall possible precautions to prevent the use of the vehicle forthe commission of the offence.
Learned Counsel for the appellant submitted that theburden is only on the registered owner to satisfy Courtthat the accused has committed the offence without hisknowledge or participation and this will not be applicable toan absolute owner.
As stated earlier, in Mercantile Investments Ltd. v.Mohamed Mauloom and others (supra), consideration wasgiven to the rights of the absolute owner as well as theregistered owner. In that matter the learned Magistrate had
The Finance Company PLC v. Priyantha Chandana and 5 others
(Dr. Shirani A. Bandaranayake, J.)
not given an opportunity to the absolute owner to show causebefore he made the order to confiscate the vehicle. On aconsideration of the said question, the Court of Appeal hadheld that it is not only the registered owner, but the absoluteowner also should be given notice on the inquiry in relationto the confiscation of the vehicle.
It is therefore apparent that both the absolute owner andthe registered owner should be treated equally and there can-not be any type of privileges offered to an absolute owner,such as a Finance Company in terms of the applicable lawin the country. Accordingly, it would be necessary for theabsolute owner to show the steps he had taken to prevent theuse of the vehicle for the commission of the offence and thatthe said offence had been committed without his knowledge
On a consideration of the aforementioned it is evidentthat the learned Magistrate had not erred when he held thatthe appellant had not satisfied Court that he had taken everypossible step to prevent the commission of the offence. Asstated earlier, the High Court had affirmed the order made bythe learned Magistrate.
For the reasons aforesaid the question on which specialleave to appeal was granted is answered in the negative.
The judgement of the High Court dated 30.06.2008 istherefore affirmed. This appeal is accordingly dismissed.
I make no order as to costs.
AMARATUNGA, J. -1 agreeEKANAYAKE, J. – I agree.appeal dismised.