090-NLR-NLR-V-77-MAGILIN-WICKREMASEKERA-Applicant-and-K.-ARIYATILLLEKE-Inspector-of-Police-Res.pdf
WIJESUNDERA, J—Wickremasekera v. AriyatiUeke {Inspector of Police) 631
-1975 Present: Wijesundera, J. and Ratwatte, J.
MAGILIN WICKREMASEKERA, Applicant and K. ARIYA-TILLLEKE, Inspector of Police, Respondent.
S. C. Application 24/75 M. C. Galle No. 2185
Statutory Offence, Emergency (Paddy Marketing) Regulations, No. 12 of1974—1st accused convicted—Forfeiture of security furnished bythe 3rd accused who had been discharged at the end of the trial—Interpretation of Regulations 16 and 17.
The 1st Accused, the driver of a lorry used in transporting paddyin contravention of Emergency Regulations, pleaded guilty to thecharge and was convicted. The charge against the third accusedand two others was withdrawn and they were discharged. TheMagistrate thereupon ordered the forfeiture of the securitydeposited by the third accused.
Where the applicant, i.e. the third accused, who had been dis-charged by the Magistrate, made the present application to setaside the order made by the Magistrate confiscating the securitydeposited,
Held :
That while Regulation 16 requires that the Magistrate shallorder the forfeiture of the vehicle seized and the security furnishedupon the conviction of any person, Regulation 17 does not empowerthe Magistrate to release the vehicle or the security, where onlyone of several accused was convicted and the other acquitted. Thisnecessarily means that where more than one accused have beencharged, all should be acquitted for the vehicle or the security tobe released. When even one out of several accused has beenconvicted, regulation 17 has no application.
Application in Revision.
G. C. Mendis, for the Applicant.
G. L. M. de Silva, State Counsel, for the Respondent.
March 17, 1975. Wijesundera, J.—
This is an application to have the order made by theMagistrate, Galle, confiscating security in a sum of Rs. 40,000set aside. It arises out of the conviction of one UdugamaGamage Ariyapala for transporting 360 lbs. of rice in contraven-tion of the Emergency (Paddy Marketing) Regulations No. 12of 1974 published in Government Gazette No. 135/35 ofNovember 1st, 1974.
On the 14th of November, 1974, the Galle Police producedfour accused, one of whom is the present applicant, before theMagistrate on a charge of transporting on the 11th November1974 360 lbs. of rice in lorry No. 24 Sri 6840, without therequisite permit, in breach of regulation 4 (1) of the
532 WIJESUNDERA, J.— Wickremaaekera v. Ariyatilleke (Inspector of Police)
aforementioned regulations. The contravention of any regula-tion is an offence and punishable under regulation 14 of thesame regulations. The lorry and the rice were produced beforethe Magistrate as required under regulation 15. On the 14th ofNovember 1974 the Magistrate made order releasing the lorry,as he was empowered to do, on security being furnished in asum of Rs. 40,000. The 3rd accused in that case, who is the presentapplicant, executed a bond for securing 1he payment of the saidsum on the day after and the lorry was released. On the 9 h ofDecember 1974 the 1st accused, who was the driver of the lorry,withdrew his earlier plea and pleaded guilty to the charge. Hewas fined Rs. 500. The charge against the others was withdrawnand they were discharged. The Magistrate thereupon orderedthe forfeiture of the security deposited. The present applicationis to have that order set aside.
It was argued that regulation 17, in as much as three personscharged had been discharged, requires that the securityfurnished should be released. Regulation 17 reads: —
“ Where no legal proceedings have been instituted againstany person in respect of an offence under these regulationswithin three months of the detection of such offence orwhere any person charged in respect of such offence hasbeen acquitted or discharged, any vehicle or vessel seized andproduced before the Magistrate under regulation 15 shallbe returned to such person or where security has beendeposited in lieu thereof such security shall be released
The charge to which the 1st accused pleaded guilty was trans-porting rice in this lorry. The 1st accused, who was the driverof the lorry, pleaded guilty on the basis that this lorry wasused in the commission of that offence. Regulation 16 savs : —
“ Upon the conviction of any person of an offence underthese regulations tte Magistrate shall, in addition to anypunishment imposed under regulation 14 order theforfeiture of any vehicle or vessel seized or the securitydeposited in lieu thereof under regulation 15 ”.
Ounasena v. The Attorney-General
533
This requires that the Magistrate shall order the forfeiture ofthe vehicle seized or of the security furnished upon ihe convic-tion of any person. Regulation 17, reproduced, above, does notempower the Magistrate to release the vehicle or the securitywhere only one of several accused was convicted and the othersacquitted. That regulation contemplates the case where anaccused charged has been acquitted. This necessarily means thatwhere more than one accused have been charged all should beacquitted for the vehicle or the security to be released. Whereeven one out of several accused has been convicted, regulation17 has no application. A reference to the Sinhala regulation 17reproduced above confirms this view. Where one out of severalpersons has been convicted, as in this case, it has been affirma-tively preved that the vehicle was used in the commission of theoffence. Hence the release of the vehicle or the security willbe in contravention of regulation 16. It was also argued that thelorry was registered in the name of the 11 year old son of the3rd accused and therefore as the 3rd accused was acquitted thelorry should have been released. What has to be remembered inmaking an order of confiscation is whether it was used in thecommission of the offence and not whether the owner was con-victed of the offence. Therefore the order made by the Magis-trate is correct. Hence the application is refused.
RatwatTe, J.—-I agree.
Application refused.