COURT OF APPEALRECTOR YAPA, J.
C.A. 1061/88M.C. KANDY NO. 78490MAY 08, 29, 1996JUNE 05, 1996.
Forests Ordinance S. 25 (2) S. 40 (1) – Transporting Timber without a Per-mit – Confiscation of Vehicle • Owner had no knowledge that Timber was tobe transported – Can the vehicle be confiscated.
On 23.8.88, six persons were detected transporting timber in a Tractor andTrailer owned by the Petitioner without a permit. At the trial the driverpleaded guilty and he was convicted. The Charges against the other ac-cused were withdrawn.
An application by the Petitioner for the release of the said vehicle wasinquired into, and after inquiry the learned Magistrate confiscated the saidvehicle.
The Petitioner contended that on the material placed before Court it wasclear that the Timber had been transported by the Driver without his per-mission and knowledge.
As seen from the Evidence the vehicle was taken over by the Driverfrom the Petitioner's house in the morning and it was returned to him in theEvening with the collection. Further, clear instructions had been given bythe Petitioner to the driver not to transport timber or use the vehicle for anyother illegal purpose. The vehicle was in fact given to the driver to trans-port only metal and sand on hire.
The observations by the learned Magistrate that "in view of the saidabetment even though there was no knowledge on the part of the Peti-tioner regard to this incident, it was possible to state that generally thePetitioner had the knowledge that the vehicle would be used for illegalpurpose or for the transport of items not permitted by Law – is a Misdi-rection. This conclusion, that the Petitioner had abetted the Driver in thecommission of the illegal act of transporting timber without a permit hadbeen made when there was no material even to hold that the Petitionerhad knowledge of the illegal act committed by the Driver.
APPLICATION in Revision from the order of the Magistrate Court of Kandy.
Cases referred to:
Manawadu v. A. G. 1987 – 2 SLR 30.
Nizar v. I. P. Wattegama – 1978-79 2. SLR 304.
Fans v. O. I. C. Police Station, Galenbindunawewa – 1992 – 1 SLR 167.
Faiz Musthapa PC. with S.N. Senanayake for Petitioner.
V. Siriwardane SC for A.G.
Cur. adv. vult.
July 21, 1996.
HECTOR YAPA, J.
In this case the Petitioner is the owner of Tractor No. 36 Sri 8968and Trailer No. 45 Sri 3712. On 23.08.88 six persons were detectedtransporting timber valued at Rs. 2,125/- in the said tractor and trailerwithout a permit, by the Peradeniya Police. Thereafter, these six per-sons including the driver of the said vehicle were charged in the Magis-trate's Court of Kandy with having committed an offence punishableunder section 25 (2) read with section 40 (1) of the Forests Ordinanceas amended. At the trial the 1 st accused who was the driver of the saidvehicle pleaded guilty to the charge and the Magistrate convicted himand imposed on him a fine of Rs. 1000/- with a default sentence of 6months imprisonment. The charges against the other accused werewithdrawn by the police. When an application was made for the re-lease of the said tractor and trailer on behalf of the Petitioner, the Mag-istrate decided to hold an inquiry. After the inquiry the learned Magis-trate by his order dated 20.09.88 confiscated the said tractor and trailerand the timber that was transported without a permit. The Petitionerhas filed this revision application seeking to set aside the order confis-cating the said tractor and trailer belonging to him.
At the inquiry before the Magistrate the Petitioner, the driver of thesaid vehicle Sonny and the owner of timber, Premaratne gave evidence.Petitioner in his evidence stated that he was the registered owner oftractor No. 36 Sri 8968 and trailer No. 45 Sri 3712, and Sonny was his
driver who was in his employment for the past five months. He said heobtained the said vehicle for the purpose of transporting metal on hire,as metal was available in the area and further he stated that the saidvehicle was used only for the purpose of transporting metal and sand.He said that he had given instructions to his driver not to transporttimber or not to use the vehicle for any illegal purpose. The witnessalso said that every morning the driver takes the tractor from his houseand returns it in the evening with the money collected for transportingmetal and sand on hire. He said normally he did not obtain in writingthe details of the trips done for hire from the driver, but he got themorally. However he said that the driver submitted the bills for the dieselused on the vehicle. The witness stated that on 23.08.88 after thedetection he came to know that his driver had used his vehicle to trans-port timber belonging to one Premaratne. The position of the Petitionerhowever was that he had no knowledge that timber belonging to saidPremaratne was to be transported in his vehicle on that date. Peti-tioner further stated that he had no cases against him for transportingtimber in his vehicle and that this was the first time that he camebefore a Court.
Premaratne the owner of timber gave evidence and stated that thetractor owned by the Petitioner was used for the transport of metal andsand. He said on 23.08.88 when he met Sonny, the driver of the tractorbelonging to the Petitioner, returning after taking a load of metal, herequested him to transport some timber stating that he would helphim.(s@ o&o cSOO)enoafo »9e» gc))s>a>a csOssio tSaj). Thereafter
he said that when they were transporting the said timber it was de-tected by the police. He further stated that he did not know the Peti-tioner at the time of the detection and came to know him only later.The driver Sonny gave evidence and stated that the owner of the tractornamely the Petitioner had employed him as the driver of the said trac-tor for the purpose of transporting metal and sand on hire and furthersaid that he had been instructed not to use the said vehicle for anyillegal purpose. On 23.08.88 when he was returning in the tractor,Premaratne wanted him to transport some timber and while transport-ing the said timber it was detected by the police. He said that hetransported the said timber without the permission of the Petitionerwho was the owner of the vehicle. He further stated that what wasnormally transported in the said tractor was metal and sand and thathe has never transported timber in this vehicle earlier. He also statedthat in the evening he returns to the Petitioner the money collected forthe day, with a bill for the diesel used on the tractor. It was the positionof this witness that the details of the trips done for hire were given byhim to the Petitioner only if he was questioned.
At the hearing of this appeal the main submission of the learnedCounsel for the Petitioner was that on the material placed before theMagistrate it was clear that the timber had been transported by driverSonny without the permission of the Petitioner and without his knowl-edge and therefore it was incumbent upon the Magistrate to have re-leased the said tractor to the Petitioner. The Counsel further submittedthat the failure to release the tractor and the consequent order of con-fiscation amounted to a misdirection in law. To support this propositionhe cited the case of Manawadu v. The Attorney General.™ Counselalso cited two other cases namely Nizar v. I.P. Wattegama(2) and Farisv. O.l.C. Police Station, Galenbindunuwewa(3) decided under the Ani-mals Act which provided for the confiscation of the vehicle used for theillegal transportation of cattle. In the case of Manawadu v. The AttorneyGeneral (supra) the principle has been clearly established that theowner of the vehicle who is not a party to the case is entitled to beheard on the question of forfeiture of the vehicle and if he satisfies theCourt that the accused committed the offence without his knowledgeor participation his vehicle will not be liable to forfeiture.
In the present case there was clear evidence to show that thePetitioner who was the owner of the vehicle was not a party to thecase. He has not given permission to the driver to transport the timberin question. Further he had no knowledge about the commission of thesaid offence by his driver. This position has been corroborated by theevidence of Premaratne and driver Sonny. However, the Magistrate inhis order has come to a finding that the Petitioner has permitted thedriver to use the vehicle for any purpose without any control or supervi-sion so long as the Petitioner was provided with the money obtainedby hiring the said vehicle and thereby the petitioner had abetted thedriver to use the said vehicle for illegal purposes. Thereafter the learnedMagistrate in his order proceeded to state as follows : "In view of saidabetment, even though there was no knowledge on the part of the Pe-titioner regard to this incident, it was possible to state that generallythe Petitioner had the knowledge that the vehicle would be used forillegal purposes or for the transport of items not permitted by law. There-fore I hold that the Petitioner had permitted the driver to transport thetimber without a permit and confiscate the tractor No. 36 Sri 8968 andtrailer No. 45 Sri 3712.“. The above statement of the Magistrate isclearly a misdirection, and further it amounts to a failure on the part ofthe Magistrate to appreciate the evidence that had been led on behalfof the Petitioner. It is wrong to say that the Petitioner did not exercisecontrol over the driver of the vehicle. As seen from the evidence thevehicle was taken over by the driver from the Petitioner's house in themorning and it was returned to him in the evening with the collections.Further clear instructions had been given by the Petitioner to the driver,not to transport timber or use the vehicle for any other illegal purpose.This vehicle was infact given to the driver to transport only metal andsand on hire. The conduct of the driver on this date in agreeing totransport timber belonging to Premaratne had been done contrary tothe instructions given by the Petitioner and further it appears that thisact had been done by the driver for his private gain, since he wasinduced to do so by Premaratne, who promised to help him for thisJob.
Therefore, the Magistrate was in error when he came to the con-clusion that the Petitioner had exercised no control or supervision overthe driver regarding the use otthe tractor. Further the evidence of thedriver that he did not know that a permit was necessary to transporttimber, did not alter the position that the Petitioner had control over thevehicle, since he had not given him permission to transport timber.Thus the learned Magistrate has misdirected himself in holding thatthe Petitioner had abetted the driver to use the vehicle belonging tohim for illegal purposes. It is to be noted that this conclusion of theMagistrate, that the Petitioner had abetted the driver in the commis-sion of the illegal act of transporting timber without a permit, had beenmade when there was no material even to hold that the Petitioner hadknowledge of the illegal act committed by the driver.
Therefore I set aside the order of the learned Magistrate dated20.9.88 confiscating the Tractor No. 36 Sri 8968 and Trailer No. 45 Sri3712 and direct that the said Tractor and the Trailer be restored to thePetitioner.
HECTOR YAPA, J.
MUDANKOTUWA v. ATTORNEY GENERAL