Manawadu v. OIC. Police Station. Udapussellawa
OFFICER-IN-CHARGE, POLICE STATIONUDAPUSSELLAWA AND ANOTHER
COURT OF APPEAL.
SIVA SELLIAH. J. AND T. D. G DE ALWIS, J.
C A 643/83 – M. C. NUWARA ELIYA No 37665.
JULY 17. 1985.
Transport of timber without a permit – Forest Ordinance s. 25 (1) read with $. 40 asamended by Act No. 13 of 1982 – Confiscation of lorry – Owner not aware and notgiven opportunity to show cause.
Upon a conviction for the offence of transporting timber without a permit under theForest Ordinance amended by Act No. 13 of 1982 the confiscation of the vehicle inwhich the illegal transport was done is automatic. Such vehicle is automatically forfeitedto the State and shall vest absolutely in the State on the expiry of the appealable periodif there is no appeal or upon the affirmation of the conviction in appeal if there is anappeal. The right of showing cause against the confiscation which earlier existed hasbeen withdrawn by the amending Act No. 13 of 1982.
Case referred to :
(1) Garland v. Carlisle (1837) 4 Cl. & F. 693. 705
APPLICATION for revision of the order of the Magistrate of Nuwara Eliya.
V. E Selvarajah with Miss. Asoka Lokugambewa for petitioner.
Nihara Rodrigo. S. C. for Attorney-General.
Cur. adv. vult.
August 9. 1985.
SIVA SELLIAH, J.
This is an application for Revision by the petitioner of the order forconfiscation made by the Magistrate of Nuwara Eliya on 17.5.83 oflorry bearing No. 26 Sri 2518 of which the petitioner was the ownerwithout giving him an opportunity of showing cause against theconfiscation.
Sri Lanka Law Reports
[1985) 2 SnL.R.
The facts necessary for the determination of this application are asfollows :
One Ekmon Wijesuriya. the 2nd respondent to this application,was charged in MC Nuwara Eliya with having on 1 5th May 83 atGordon in Udapussellawa transported rubber timber in lorry No. 26Sri 2518 to the value of Rs. 600 without a permit to do so incontravention of the Regulation described in the charge and withthus having committed an offence punishable under section 25 (1)read with section 40 of the Forest Ordinance. The 2nd respondentpleaded guilty to the said charges and was sentenced to a term of 3months rigorous imprisonment suspended for 5 years and to a fineof Rs. 500 which the 2nd respondent paid. The Magistrate alsoordered confiscation of the lorry No. 26 Sri 2518 in which thetimber was transported. It is the petitioner's complaint that he wasunaware of the transportation of timber by the 2nd respondent inthe said lorry valued at Rs. 350,000 of which he was the owner andthat he was not given the opportunity of showing cause against theconfiscation and that there was thus a violation of the principle ofaudi alteram partem and a consequent denial of justice to him.Although in para 6 B & C of the petition for Revision the petitionerhas urged that the regulations made by the Minister were null andvoid in law and thus the conviction of the 2nd respondent and theorder for confiscation of the lorry were both illegal, these matterswere jettisoned and were not urged before us at the hearing of thisapplication ; the only point urged was that the order for confiscationwas made without giving the petitioner an opportunity of beingheard in violation of the audi alteram partem rule and that thereforethe petitioner was denied natural justice. The learned State Counselhas refuted this and stated that the legislature has seen it fit toframe amending legislation Act No 13 of 1982 by which uponconviction of the accused confiscation was automatic and the rightof showing cause that had earlier existed had been withdrawn.
It is necessary at this stage to set out the provisions of section 40 ofthe Forest Ordinance and succeeding amendments thereto to showthe gravity of the offence and punishment in the eyes of thelegislature, due no doubt to the frequency of illicit felling of timber fromState land.
CA Manawadu v. OIC, Police Station. Udapussellawa (Siva Selliah, J.)263
Section 40 of the Forest Ordinance enacts as follows :
When any person is convicted of a forest offence, all timber orforest produce which is not the property of the Crown in respect of
which such offence has been committed, and all tools, boats, carts,cattle, and motor vehicles used in committing such offence, shall beliable, by order of the convicting Magistrate, to confiscation Suchconfiscation may be in addition to any other punishment prescribedfor such offence.
Section 40 of the principal enactment was amended by section 1 2of Act No 1 3 of 1966 by the substitution, for all the words from "shallbe liable” to the end of that section, of the following
"shall, m addition to any other punishment prescribed for suchoffence, be confiscated by order of the convicting Magistrate
Provided that in any case where the owner of such tools, boats,carts, cattle or motor vehicles is a third party, no order ofconfiscation shall be made if such owner proved to the satisfactionof the court that he had used all precautions to prevent the use ofsuch tools, boats, carts, cattle or motor vehicles, as the case maybe, lor tfic commission of the offence
Section 40 of the Forest Ordinance was further amended by section9 of Act 56 of 79 by the repeal of the proviso to that section.
Section 40 of the Forest Ordinance as last amended by Act 56 of1979 was repealed by Act No. 13 of 1982 which by section 7substituted the following :
"40(1) Upon the conviction of any person for a forest offence –
all timber of forest produce which is not the property ofthe State in respect of which such offence has beencommitted ; and
all tools, boats, carts, cattle and motor vehicles used incommitting such offence (whether such tools, boats,carts, cattle and motor vehicles are owned by suchperson or not), shall by reason of such conviction beforfeited to the State.
264Sri Lanka Law Reports 2 Sri L.R.
Any property forfeited to the State under subsection (1)
if no appeal has been preferred to the Court of Appealagainst the relevant conviction, vest absolutely in theState with effect from the date on which the periodprescribed for preferring an appeal against suchconviction expires ;
(£>) if an appeal has been preferred to the Court of Appealagainst the relevant conviction, vest absolutely in theState with effect from the date on which suchconviction is affirmed on appeal.
In this subsection, relevant conviction' means the conviction inconsequence of which any property is forfeited to the State undersubsection (1)."
Section 25 (1) which provided the punishment upon conviction forbreach of regulations under the Ordinance by a person was alsosimilarly amended to provide for more stringent punishment. Aconsideration of all these enactments and amendments establish theneed found by the legislature to increase the severity of punishment inrespect of vehicles used for transport of timber or other forest producewithout a valid permit to do so and as the last two amendments shownot only was the opportunity given to show cause against confiscationdone away with but also upon conviction of the offender, the vehiclesin which the timber was transported became ipso facto forfeitirrespective of who the owner was and it immediately vested in theState. The legislature could then have not expressed its mind in cleareror more forceful terms. Thus whereas the original section 40 providedthat such timber and vehicles used were liable to confiscation, section12 of Act 13 of 1966 provided for confiscation with the provisohowever that if the owner of the vehicle proved to the satisfaction ofthe Magistrate that he had used all precautions to prevent the use ofthe vehicles for the commission of the offence no confiscation can bemade , by the amending Act of 56 of 1979 the law pertaining toshowing cause was repealed and finally with the object of deterrentlegislation by section 7 of Act 13 of 1982 upon the conviction of anyperson for a forest offence any vehicle used for the commission of aforest offence (whether such vehicle was owned by such person ornot), shall by reason of such conviction be forfeited to the State ; andby sub-section (2) where there had been no appeal against suchconviction to the Court of Appeal, any property so forfeited vestedabsolutely in the State from the expiry date of the appealable period.
Manawadu v. QIC, Police Station, Udapusseltawa (Siva Selliah. J) 265
In this case the 2nd respondent did not appeal against hisconviction The forfeiture thus was automatic and the property (lorry)had vested absolutely tn the State. It is thus quite evident that theLegislature had expressly withdrawn any right to show cause againstforfeiture of the lorry to the State by the owner by the provision ofsection 7 of Act 13 of 1982. The Magistrate's order for confiscationof the lorry was thus a correct order. It is my view that where thelegislature has explicitly withdrawn the right of showing cause thatexisted earlier by legislation to that effect there is no violation of theprinciple of audi alteram partem nor is there a denial of natural justice.Such provision can work hardship in genuine cases but this courtcannot but implement the law as it stands.
Craies on Statute Law 7th Edition p. 87 states –
"But where the words of an Act of Parliament are plain the courtwill not make any alteration in this because injustice may otherwisebe done. "
Where the language of an Act is clear and explicit, we must give effectto it, whatever may be the consequence, for in that case the words ofthe Statute speak the intention of the legislature. Again at p. 90 :
"where the language is explicit, its consequences are forparliament, and not for the courts to consider. In such a case thesuffering citizen must appeal for relief to the law giver and not to thelawyer" – Garland v. Carlisle (1) per Coleridge, J.
I am of the view that the contentions of the learned Counsel forpetitioner must in the light of the amending legislation No. 13 of 1982and the principles enunciated above fail however hard theconsequences may be to the petitioner. The order of confiscation b/the Magistrate is a legal and correct order and must remain Theapplication for Revision is accordingly dismissed.
T.D. G. DE ALWIS, J. – I agree