Mercantile Credit Ltd. v. Sub-Inspector of Police
1961Present : Weerasooriya, J.
MERCANTILE CREDIT LTD., Petitioner, and SUB-INSPECTOROF POLICE and another, Respondents
S. C. 301—Application for Revision in M. C. Colombo, 1246jC
Excise Ordinance—Section 51 (2)—Confiscation of a motor car thereunder—Duty ofCourt to hear owner.
Confiscation of a motor car under section 51(2) of the Excise Ordinanceshould not be ordered without the owner being given an opportunity ofbeing heard.
1 (1939) 2 A. E-R.559,
WEERASOORIYA, J.—Mercantile Credit Ltd. v. Sub-Inspector of
Application to revise an order of the Magistrate’s Court,
G. D. C. Weerasinghe, with M. T. M. Sivardeen, for petitioner.
J.A. D. de Silva, Crown Counsel, for 1st Respondent.
July 25, 1961. Weerasooriya, J.—
This application arises out of an order of confiscation of a motor carbearing registered No. 2 Sri 3172 which the Magistrate made inM. C Case No. 1246/C.
Four persons were charged in that case with the commission of theoffence of hiving in their po33e3sion without lawful authority, on the24th Miy, 1961, a quantity of unlawfully manufactured arrack whichwas transported in the aforesaid car. The accused pleaded guilty to thecharge and the Magistrate made the order of confiscation after noticeto the registered owner of the car, one B. Peter Perera, to show causewhy the car should not be confiscated. On the 8th June, 1961, whenthe matter came up for enquiry, Peter Perera was absent and the Magis-trate, purporting to act under section 51(2) of the Excise Ordinance,made order confiscating the car, and that it be sold by public auctionand the proceeds credited to revenue.
It would appear that according to a statement made by Peter Pererato the Police, he had sold the car to one Nihal Salgado on the 25th ofMay, 1961, and was, therefore, not interested in showing cause againstthe co lfiscatioa of it. Tae present application for the revision of theorder of confiscation is made by the Mercantile Credit Limited of Colomboon the ground that the absolute ownership of the car vested in the Com-pany and that it had hired the said car to Peter Perera on a hire purchaseagreement No. 2580/M dated the 23rd March, 1960. On the affidavitfield with the petition I am satisfied that the Mercantile Credit Limitedwas the absolute owner of the car at the time when the order of con-fiscation was made, and still is the absolute owner. It has been heldby tliis Court in several cases, of which I need refer only to ExciselnspectorFernando v. Marther c& Sons 1, that confiscation of a motor car undersection 51(2) of the Excise Ordinance should not be ordered without theowner being given an opportunity of being heard, and that wherethe owner himself is not convicted of the offence, no order of confiscationshould be made unless there is evidence that implicates him in theoffence. In the present case as no notice was given to the petitioner ofthe proposed order of confiscation, I would on that ground alone setaside the order made by the Magistrate and remit the proceedings tohim so that the petitioner may be given an opportunity of showingcause why the car should not be confiscated.
Case sent bach for farther proceedings.
11 O. L. W. 249.
MERCANTILE CREDIT LTD., Petitioner, and SUB-INSPECTOR OF POLICE and another, Re