006-SLLR-SLLR-1998-V-3-MERCANTILE-INVESTMENTS-LTD.-v.-MOHAMED-MAULOOM-AND-OTHERS.pdf
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Sri Lanka Law Reports
[1998] 3 Sri LR.
MERCANTILE INVESTMENTS LTD.
v.
MOHAMED MAULOOM AND OTHERS
COURT OF APPEALYAPA, J..
KULATILAKE, J.
C.A. (PHC) NO. 5/98
C. HAMBANTOTA NO. 63/97M.C. TANGALLE NO. 49038JULY 14TH, 1998.
Code of Criminal Procedure Act, No. 15 of 1979 – Amended by 12 of 1990 -S. 443(A) 1 – Confiscation of vehicle – Transporting cattle without a permit -Offence of causing cruelty to animals – Right of the absolute owner to be heard- Universal Declaration of Human Rights (1948) Art 17 (1), 17 (2).
The vehicle was detected when the accused respondents were transportingcattle. The accused pleaded guilty and were convicted. The court thereafterproceeded to hold an inquiry in order to decide the question whether the vehicleshould be confiscated.
After inquiry, court was of the view that the claimant-respondent who was theregistered owner had failed to take necessary precautions to prevent the saidoffences being committed. In the Revision application in the High Court, thepetitioner the absolute owner sought to intervene but the application was refused,as the court observed that the petitioner had earlier consented to the releaseof the vehicle, which was in the custody of court to the claimant-respondent. TheHigh Court confirmed the order of the Magistrate Court, on appeal.
Held:
In view of s. 443 (A) 1 of Act No. 12 of 1990, the petitioner being theabsolute owner is entitled to possession of the vehicle, even though theclaimant respondent had been given its possession on the LeaseAgreement. It was incumbent on the part of the Magistrate to have giventhe petitioner an opportunity to show cause before he made the Orderto confiscate the vehicle.
Per Yapa, J.,
“The fact that the petitioner at some earlier stage of the proceedings beforethe Magistrate had given a letter consenting to the release of the vehicle tothe claimant-respondent does not absolve the Magistrate of his duty to givenotice to the petitioner of the inquiry relating to the confiscation of the vehicle.”
CA
Mercantile Investments Ltd. v. Mohamed Mauloom and others
(Hector Yapa, J.) '
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As regards the earlier consent of the absolute owner (petitioner) to releasethe vehicle to the registered owner, it appears that the petitioner was misled,since the letter has been issued by the petitioner before the date ofconfiscation.
Application in Revision from the Order of the High Court of Hambantota.
Cases referred to:
Manawadu v. Attorney-General 1987 2 SLR 30.
Mohan Peiris with S. Galapathithi for respondent-petitioner.
A. H. M. D. Nawaz SC for Attorney-General.
Cur. adv. vult.
July 14, 1998HECTOR YAPA, J.
In this application, the respondent-petitioner (hereinafter referred toas the petitioner) is seeking to set aside the order of the learnedMagistrate dated 01.08.97 and the order of the learned High CourtJudge dated 13.11.97. The petitioner is the absolute owner of thelorry bearing No. 48 – 2751. This lorry was detected by the police,when the accused-respondents were transporting cattle. After thedetection, the accused-respondents were charged in the Magistrate'sCourt of Tangalle on two counts. In the 1st count accused-respondentswere charged with committing the offence of transporting cattle withouta permit. In the 2nd count they were charged with committing theoffence of causing cruelty to the animals in terms of the Preventionof Cruelty to the Animals Ordinance. The accused-respondents pleadedguilty to the said charges and were convicted and sentenced. There-after, the learned Magistrate proceeded to hold an inquiry in orderto decide the question whether the vehicle in question 48 – 2751should be confiscated. After the inquiry, the Magistrate was of theview that the claimant-respondent who was the registered owner ofthis vehicle had failed to take necessary precautions to prevent thesaid offences being committed and therefore by his order dated01.08.97 decided to confiscate the said lorry.
The claimant-respondent thereafter filed a revision application againstthe said order of confiscation of the vehicle by the Magistrate, in theHigh Court of Hambantota. At that stage, the petitioner who had notice
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of the case appeared in the High Court and made a claim to thesaid vehicle as the absolute owner, and moved court to set asidethe order of confiscation dated 01.08.97 and release the said vehicleto the petitioner or in the alternative to direct the Magistrate to holda fresh inquiry, since the petitioner had no notice of the inquiry heldbefore the Magistrate. However, the High Court Judge after havingconsidered the submissions made on behalf of the petitioner, was ofthe view that the petitioner had notice of the inquiry. This conclusionwas reached by the High Court Judge for the reason that the petitionerhad earlier on 30.7.97 had issued a letter to the claimant-respondentstating that he had no objection to the release of the said vehicle,which was in the custody of the court to the claimant-respondent.Therefore, the learned High Court Judge by his order dated 13.11.97,refused to set aside the order of the Magistrate confiscating the lorry48-2751 and dismissed the claim of the petitioner. The presentrevision application is against the said order of the learned High CourtJudge.
At the hearing of this application, the learned counsel for thepetitioner referred to section 443 A (1) of the Code of CriminalProcedure Act, No. 15 of 1979 as amended by Act No. 12 of 1990which reads as follows:
“In the case of a vehicle let under a hire purchase or leasingagreement, the person registered as the absolute owner of suchvehicle under the Motor Traffic Act (Chapter 203) shall bedeemed to be the person entitled to possession of such vehiclefor the purpose of this Chapter.”
Therefore, learned counsel contended that in view of the saidprovision, the petitioner being the absolute owner of the vehicle isentitled to the possession of the said vehicle, even though the claim-ant-respondent had been given its possession on the lease agreement.In the circumstances, counsel submitted that the Magistrate shouldhave given notice of the inquiry to the petitioner, when he decidedto hold an inquiry to decide the issue whether the vehicle in questionshould be confiscated. Counsel therefore, contended that the petitionerhad been denied the right to be heard, at the inquiry where theMagistrate decided to confiscate the said vehicle. It would appeartherefore, that having regard to section 443 A (1) of the Code ofCriminal Procedure Act as amended, the petitioner being the absolute
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Mercantile Investments Ltd. v. Mohamad Mauloom and others
(Hector Yapa, J.)
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owner of the vehicle 48-2751 was entitled to possession of the vehicle.Thus, it was incumbent on the part of the Magistrate to have giventhe petitioner an opportunity to show cause, before he made the orderto confiscate the vehicle. The fact that the petitioner at some earlierstage of the proceedings before the Magistrate, had given a letterconsenting to the release of the vehicle to the claimant-respondent,does not absolve the Magistrate of his duty to give notice to thepetitioner of the inquiry relating to the confiscation of the vehicle.
Learned counsel for the petitioner cited several authorities to supportthe contention that the petitioner had a right to be heard before theMagistrate decided to confiscate the said vehicle. In the case ofManawadu v. The Attorney-General it was held that: "the owner ofa lorry not a party to the case is entitled to be heard on the questionof forfeiture of the lorry. If he satisfies the court that the accusedcommitted the offence without his knowledge or participation, his lorrywill not be liable to forfeiture". Further, it was stated in the same casethat: "Among the important rights which individuals traditionally haveenjoyed is the right to own property. This right is recognized in theUniversal Declaration of Human Rights (1948). Article 17 (1) of whichstates that everyone has the right to own property and Article 17 (2)guarantees that no one shall be arbitrarily deprived of his property".In the present case, the petitioner who was the absolute owner ofthe lorry bearing number 48-2751 had not been heard, a right to whichhe was entitled to before the order to confiscate the said vehicle wasmade. In the circumstances, if this order of confiscation is allowedto remain, it would amount to an order made where the petitionerhad been denied of his right to be heard, and further it would resultin the petitioner being arbitrarily deprived of his right to own property.
The application of the petitioner to set aside the order of confis-cation of the vehicle dated 01.08.97, on the basis that he had noopportunity to show cause at the inquiry, was refused by the learnedHigh Court Judge. He refused the application, stating that the petitionerhad notice of the inquiry before the Magistrate, in view of the letterissued by the petitioner dated 30.07.97, stating that the petitioner hadno objection to the release of the vehicle to the claimant-respondent.High Court Judge therefore, concluded that the petitioner had everyopportunity to appear at the inquiry before the Magistrate. However,the important question to be considered here would be, under whatcircumstances the petitioner issued the said letter to the claimant-
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respondent. As submitted by counsel in this case, if this letter wasissued to the claimant-respondent, since he had informed the petitionerthat the said vehicle had met with an accident and the vehicle wasin the custody of court, and therefore the claimant-respondent requiredsuch a letter from the petitioner to obtain the release of the vehicle,then it would clearly be a case where the petitioner had been misled.Further, it would appear that the petitioner had been misled, sincethe said letter had been issued by the petitioner before 01.08.97 whichwas the date of the order of the Magistrate to confiscate the vehicle.Under these circumstances, it is manifestly clear that the petitionerhad no notice of the inquiry held before the Magistrate. In such acase, it would be unreasonable to assume that the petitioner hadvoluntarily kept away from the inquiry relating to the confiscation ofthe vehicle. Besides, if the petitioner had notice of an inquiry relatingto the confiscation of the vehicle, he would in all probability haveappeared in court. Therefore, the learned High Court Judge was inerror in assuming that the petitioner having had notice of the inquiryrelating to the confiscation of the vehicle, had kept away from court.In cases of this nature, it is necessary that notice should be givento the parties who are likely to be affected by a decision taken regardto the confiscation of a vehicle. Further, in this case having regardto the letter given by the petitioner dated 30.07.97, the Magistratewould have been aware that the petitioner had some interest in thesaid vehicle. Therefore, in our view it was the duty of the Magistrateto have given notice to the petitioner when he decided to hold aninquiry relating to the confiscation of the said vehicle.
For the above reasons, we set aside the order of the learnedMagistrate dated 01.08.97 and the order of the learned High CourtJudge dated 13.11.97. Further, we direct the Magistrate to hold a freshinquiry according to law in relation to the confiscation of the vehiclebearing number 48-2751 with notice to the petitioner and come toan appropriate finding. We order no costs.
KULATILAKE, J. – I agree.
Application allowed.
Magistrate ordered to hold a fresh inquiry.