OFFICER-lN CHARGf, HARBOUR POLICE, COLOMBOAND ANOTHER
COURT OF'APPEALGRERO, J.
HARBOUR COURT (MAG.I3WRATE) H/638525 NOVEMBER 1991 £r
Criminal Procedure – Disposal of productions- Cod§ at Criminal Procedure Act,No. 15 of 1979, s .425 -Acquittal of accused – Ciaimto productions..
An acquittal from a charge of possession of 25 radio cassettes, does not entitlethe accused to receive the productions as the Police took them from him. Unders.425(1) of the Code of Crirntrial Procedure Act the Court after inquiry must makesuch order as it thinks fit in regard to the disposal of the productions. Theclaimant should have satisfied Court that he was the real, owner of theproductions in Court. Instead: by relying on his acquittal and not adducingevidence after raising a preliminary objection, he left the Magistrate with noalternative but to confiscate the productions.
Case referred to:
(1) Thirunayagam v. I.P. Jaffna 74 NLR 163.
APPLICATION to revise the order of the Magistrate confiscating the productions.S. R. Crossette Tambiah for petitioner.
A. H. M. D. Nawaz, S.C. for the Attorney-General.
14th January, 1992.
The petitioner in this case had come tovthis Court by way ofRevision, to set aside the order made by the learned Magistrate toconfiscate the productions (25 cassette radio sets) of this case andthe same be sold by public auction, and the proceeds, of the sale tobe credited to the revenue.
In this cases the claimant was the 5th accused .and he along withfour others were charged before the Harbour Court Magistrate on fivecounts under the Penal Code. All the accused pleaded not guilty tothe charges, and the trial proceeded against-thepi. At the end of theprosecution case, the learned Magistrate acquitted and dischargedall the accused.
Regarding the productions, the leUrned Magistrate had postponedher order and her order dated 474.9'lreveals that she wished to makea proper order after holding aciue inquiry. But on the date of inquiry,the learned Counsel for the accused-petitioner had raised apreliminary objection against the leafned. Magistrate holding suchinquiry. His contention was that no inqufry. was -necessary becausethere had been no counter claimants'and the only'claimant was the5th accused-petitioner and therefore ,.th& production should behanded over to him as the police had recovered the production fromhim. He had further submitted to the' l&a'med Magistrate as theprosecution failed to prove the chargea.a.nd there had been noevidence that these articles (radio sets) were: missing from the ship inquestion, they should be handed over to his client without any inquiry.
The learned Magistrate overruled his objection and thereaftermade order confiscating the productions. In her order, she had statedthat the learned Counsel had informed' Court that he was not callingthe claimant (accused-petitioner) to give evidence regarding theproductions.
When this matter came up before this Court, the learned Counselfor the accused-petitioner submitted to Court as follows:-
Proceedings do not reveal that the productions were the■ subject-matter of an offence.
If the Reductions are part of the subject-matter of anoffence drily the accused-petitioner must give evidence.
There is no burden on him (the petitioner) to show that theseproductions are his, in the absence of evidence that theseproductions are the subject-matter of an offence.
Therefore, his contention was, that the learned Magistrate shouldwithout bolding any inquiry hand over the productions to theaccused-petitioner, from whom the police recovered them.
The learned State Counsel submitted to Court that an acquittalfrom the charges could not be relied upon by the accused-petitionerin view of the construction of Section 425(1) of the Code of CriminalProcedure Act. He also submitted to Court that according to theevidence that had been led at the trial there was sufficient evidencebefore the Magistrate to show that any offence appears to have beencommitted. His position was that there was a duty cast on theaccused-petitioner to justify his claim,
Both Counsel cited.certain'decided cases to support theircontentions.
The learned Magistrate had made the order regarding theproduction after trial at that stage; section 425 of the Code of CriminalProcedure Act applied.
Section 425(1) states thus:-
“Where an inquiry or trial in any Criminal Court is concluded, theCourt may make such order as it thinks fit for the disposal ofany .. . property produced before it regarding which anyoffence appears to have been committed or which has beenused for the commission of any offence.
Just because an accused person (like the'petitioner in this case) isacquitted after trial, the Court is not bound to make an order that theproductions in question should be handed over to him.
The above stated section is very clear, that the Court can make anorder which it thinks fit before the disposal of any productioninvolved in a criminal case. According to this section, the productionin question should be either a production in respect of which anyoffence appears to have been committed or one whiclvhas beenused for the commission of any offence.
In this case, although the learned Magistrate had acquitted all theaccused including the accused-petitioner (5th aegused^. there wasevidence that the productions in question were.^i’respecfof which anoffence or offences appear to have been committed. But the learnedMagistrate was not in a position to convin'6^ the accused becausethe Captain of the ship was not a yvitness at the trial. He had left theport of Colombo at the time theTtrial was taken up. Without hisevidence possession^ the articles had not been proved. Identity ofthe articles was also, not proved. But there was evidence to show thatwith regard to these productions there appears that an offence wouldhave been committed. But that alone is' not sufficient unless theremust be evidence regarding the possession Of such articles and theidentity of such articles. That evidence may have been given by theCaptain of the ship if the prosecution was able to call him as awitness.
Under the above stated section, the Court is entitled to make anorder regarding the productions which it thinks fit. To make a fit orsuitable or proper order, a Court may hold an inquiry in respect of theproductions. In this case, specially when an accused who wascharged before the learned Magistrate claimed the productions, thenthe Magistrate is entitled to hold an inquiry into such claim andthereafter, make a fit order under the said section 425(1) of theCode. Leave aside an accused in a case. Even if a third partyclaimed such productions the learned Magistrate is entitled to holdan inquiry if he so wishes, because the provisions of the said Sectiondo not preclude a Magistrate holding such inquiry in order to make afit order.
The learned Magistrate wanted to hold an inquiry with regard tothese productions before she made a fit order. But the Attorney-at-Law for the accused-claimant (the petitioner) raised objections andhe had informed him that the claimant would not be giving evidence.When the claimant was not prepared to justify his claim to theseproductions there was no alternative for the learned Magistrate to doother than confiscating these productions and to order the sale of thesame.and.to credit the money realised as a result of such sale.
This Court is of the view, that for the learned Magistrate to make a. fit order, he or she is entitled to hold an inquiry if he or she so wishes.When the Magistrate so decided to hold an inquiry then there is aburden dri'the claimant to satisfy Court that, he is the real owner ofthe productions in question. It is not open for him to raise anobjection with regard tot.the holding of such inquiry by the learnedMagistrate. If he has a genuine claim with regard to such productionshe need not fear to face any inquiry. The fact that he was acquitted atthe trial alone, is not a sufficient groundto be silent and just ask Courtto make an order with regard to productions in his favour. He shouldhave satisfied Court that the productions are his articles.
There is no doubt that the learned Magistrate had decided to holdan inquiry as it appeared, .that any offence has been committedalthough the charges were not proved beyond reasonable doubt.Because the charges were not proved beyond reasonable doubt, sheacquitted the accused. That does not mean that the learnedMagistrate is not entitled to hold an inquiry into the question of thedisposal of productions under Section 425(1) of the Code.’-.
In the case of Tbirunayagam v. I.P. Jaffna(1> JusticeSamarawickrama observed thus:
“A petitioner who makes an application to have an order of this
. nature set aside in revision must make out a strong case.”
This Court is of the view that the petitioner in this case has notmade out a strong case for this Court to set aside the learnedMagistrate’s order.
The cases cited by the learned Counsel for the abcused-petitionerare not helpful to set aside the learned Magistrate's order.
For the above stated reasons, this Court is unable to agree withthe submissions made by the learned Counsel for the accused-petitioner. This Court sees no reason to act in revision and to setaside the order of the learned Magistrate and therefore, hisapplication is dismissed.
MEEGAHAPOLA v. OFFICER-IN-CHARGE HARBOUR POLICE COLOMBO AND ANOTHER