Sri Lanka Law Reports
(1978-79) 2 S.L.R.
v.Inspector of Police, Wattegama
COURT OF APPEAL.
VYTHIALINGAM, J. AND ABDUL CADER, J.
C.A. (S.C.) 89/77—M.C., KANDY 275o3.
NOVEMBER 28, 1978.
Animals Act, No. 29 of I95S, as amended by Act No. 20 of 1968, section3A—Confiscation of vehicle used in commission of offence—Removal ofproviso to section 3A by regulation under Public Security Act—Whetherdiscretion vested in Court removed—Requirement that owner of vehiclebe given an opportunity of showing cause against confiscation.
Six persons were charged for transporting buffaloes without a permitfrom the relevant authority in breach of regulation 1 (1) made underthe Animals Act, No. 29 of 1958, and punishable under section 37 of thesaid Act. The persons so charged included the driver of the lorry andthe owner of the buffaloes. On the latter pleading guilty to the charge,the Police withdrew the charge against the other accused who weredischarged. Thereafter the Police made an application for the confisca-tion of the vehicle concerned in the transportation.
The Animals Act was amended by Act No. 20 of 1968 by adding thefollowing new section :
“3A. Where any person is convicted of an offence under this part orany regulation made thereunder, any vehicle used in the com-mission of such offence shall, in addition to any other punishmentprescribed for such offence, be liable, by order of the convictingmagistrate, to confiscation.
CA Nizar v. Inspector of Police, Wattegama (Vythialingam, J.)
Provided, however, that in any case where the owner of thevehicle is a third party, no order of confiscation shall be made, ifthe owner proves to the satisfaction of the Court that he hastaken all precautions to prevent the use of such vehicle, or thatthe vehicle, has been used without his knowledge, for thecommission of the offence.”
The proviso to the new section 3A was removed by a regulation made■under the Public Security Act and published in Gazette ExtraordinaryNo. 17 and 194/24 dated 17th December, 1975.
In the present case the Magistrate took the view that by reason of theremoval of the said proviso he did not have to consider the questionwhether the vehicle was being used for this purpose without the owner’sknowledge or whether the owner took all steps to prevent the commis-sion of an offence. On the prosecution adducing as the reason for confis-cation the fact of the conviction of the owner of the buffaloes the Courtmade order confiscating the vehicle. At the inquiry the owner of thelorry had however appeared and in showing the cause against confis-cation given evidence that he was unaware of the transport of the saidbuffaloes until after the seizure of the lorry and that he had taken allprecautions to prevent any violation of the regulation in question by thedriver.
The learned Magistrate was clearly wrong when he took the view thatby reason of the removal of the proviso to section 3A by the EmergencyRegulation, confiscation of the vehicle must automatically follow onconviction and that he was under no obligation to consider the causeshown by the owner. The words “ be liable to confiscation ” used insection 3A gave a discretion to the Magistrate whether to confiscate thevehicle or not and accordingly the owner should be given an opportunityof showing cause that he had taken all precautions against the use ofhis vehicle for the commission of the offence and that he was not in anyway a privy to the commission of the offence. The vehicle ought not tobe confiscated where the owner succeeded in showing cause.
Cases referred to
King v. Punchi Banda, (1942) 44 N.L.R. 327.
Sinnetamby v. Ramaiingam, (1924) 26 N.L.R. 26.
Perera v. Abraham (S.I., Police), (1962) 64 N.L.R. 456.
Mercantile Credit Ltd. v. Sub-Inspector of Police et al. (1961) 66
N.L.R. 479 ; 61 C.L.W. 55.
Excise Inspector Fernando v. Marther & Sons, (1932) 1 C.L.W. 249.
Rasaiah v. Thambirajah, (1951) 53 N.L.R. 574.
Joslin v. Bandara, (1970) 74 N.L.R. 48.
The Queen v. Alpin Singho, (1959) 60 N.L.R. 455.
APPLICATION to revise an order of the Magistrate's Court, Kandy.
Nimal Senanayake, with M. Mouseef Been and K. P. Gunaratne, lor thepetitioner.
R. I. Kanagaratnam, State Counsel, for the Attorney-General.
Cur. adv. vult.
February 20, 1979.
VYTHIALINGAM, J.This is an application in revision to set aside the order made bythe Magistrate confiscating a lorry number 24 Sri 6274 allegedto have been used to transport ten head of buffaloes without avalid permit from the relevant authority.
Sri Lanka Law Reports (1978-79) 2 S. L.R.
In this connection six persons including the driver of the lorryand the owner of the buffaloes were charged for transportingthe buffaloes without a permit from the relevant authority inbreach of Regulation 1 (1) made under the Animals Act, No. 29of 1958, and punishable under section 37 of the said Act. Theowner of the buffaloes pleaded guilty to the charge and wasconvicted and fined Rs. 100. Whereupon the police withdrewthe charge against the other five accused and they weredischarged.
Thereafter the police made an application for the confiscationof the vehicle. Section 3 of the Animals Act provides for themaking of regulations inter alia for the restriction, control orregulation of the removal of animals from one AdministrativeDistrict to another. Regulations were made under this sectionand published in Gazette Extraordinary No. 13,268 dated 20thAugust, 1962, seting out that “no person shall remove anyanimal from one Administrative District to another unless hehas in his possession ” the documents specified therein and apermit issued by the relevant authority. Section 3 of the Actwas amended by Act No. 20 of 1964 by which, for the words“ restriction ”, the words “ prohibition and restriction ” weresubstituted.
The vires of the regulation made in 1962 was challenged onthe ground that it prohibited the transport of animals and thepower to prohibit by regulations was only conferred in 1964whereas the regulation itself was made in 1962. The magistraterejected this argument on the ground that the regulation did notprohibit the transport of animals from one AdministrativeDistrict to another but only regulated such transport. In thisCourt this argument was not pressed and I need therefore sayno more about it.
In 1968 two new sub-sections were added to section 3 of theAct by Act No. 20 of 1968. One of them is as follows : —
“3A. Where any person is convicted of an offence underthis part or any regulation made thereunder, anyvehicle used in the commission of such offence shall,in addition to any other punishment prescribed forsuch offence, be liable, by order of the convictingmagistrate, to confiscation.
Provided, however, that in any case where theowner of the vehicle is a third party, no order ofconfiscation shall be made, if the owner proves to thesatisfaction of the Court that he has taken allprecautions to prevent the use of such vehicle, or thatthe vehicle, has been used without his knowledge, forthe commission of the offence. ”
CA Nizar v. Inspector of Police, Watfegama (Vythialingam, J.)307
The petitioner who is the owner of the lorry appeared andshowed cause against the confiscation. Admittedly he was notpresent in the lorry at the time of the detection. He was unawareof the transport of the buffaloes until after the lorry was seizedby the Police. He had also stated that he had taken all p>recau-tions to prevent any violation of the regulation by the driverand that he had admonished him earlier against such trans-portation. Apart from stating that the driver had on previousoccasions too used this vehicle without his permission and thatother than advising him he had not taken any steps to preventthe commission of an offence in the future the magistrate hasmade no findings in regard to any of these matters set out inthe proviso and deposed to by the petitioner in his evidence.
Apart from terminating the driver’s services or travelling inthe vehicle every time it was taken out, it is difficult to see whatsteps he could have taken. Imposition of penalties would beworse than useless for the fees for such transportation wouldhave been far more than any penalty which the petitioner couldreasonably have imposed. Moreover the petitioner’s address isgiven as Dangolla, Kandy, whereas the detection was made atWattegama and admittedly he was not present at the time ofthe detection and so could not have had any knowledge of suchtransportation.
However, the Magistrate made no finding in regard to thismatter at all, for he says in his order that he does not have todecide whether the vehicle was taken without the owner’sknowledge or whether the owner took all steps to prevent thecommission of an offence. He was of this view because theproviso to section 3 (A) had been removed by regulation madeunder the Public Security Act, section 5 and published inGazette Extraordinary No. 17 and 194/24 dated 17.12.1975.Earlier also in his order he says that by this regulation theproviso to section 3 (A) has been removed and as these regula-tions were in operation at the date of the offence he did nothave to consider the proviso to section 3A. He concluded hisorder by saying that under this regulation the court had only oneof two things to do, either release the vehicle or confiscate thevehicle and that if the prosecution adduced sufficient reasonsfor the confiscation then the court could only confiscate thevehicle and could not do anything else.
The only sufficient reason adduced by the prosecution in thecase for the confiscation was the conviction of the owner of thehead of cattle for an offence under the regulation. The questionwhich arises for decision in this appeal is therefore whether theconfiscation of the vehicle used in the commission of the offence
308Sri Lanka Law Reports (1978-79) 2 S. L. R
automatically follows on conviction or whether the Magistratehas still a discretion to consider the complicity of the owner inthe commission of the offence before deciding whether toconfiscate the vehicle or not.
It is undoubtedly true that the Emergency regulation removedthe operation of the proviso to section 3A of the Act during thecontinuance in force of the regulation. For the regulation setsout that,
“ During the continuance in force of these Regulation, tireAnimals Act, No. 29 of 1958, as amended by Act No. 10 of1958 shall have effect as though for section 3A thereof, therewere substituted the following section 3A : —Where anyperson is convicted of an offence under this Part or anyregulations made thereunder, any vehicle used in the com-mission of such offence and any animal in respect of whichsuch offence has been committed, shall in addition to anyother punishment prescribed for such offence, be liable byorder of the convicting Magistrate, to confiscation.”
The proviso has been omitted.
The question however still remains whether despite theremoval of the proviso the magistrate has no discretion underthis regulation to consider the circumstances of each particularcase and decide whether he should confiscate the vehicle usedin the commission of the offence or not; The words used are
that the “vehicleshallbe liable….to confiscation.”
In analogus legislation it has been held that the word “ liable ”imports the conferment of a discretion. Thus in the case ofKing v. Punchi Bjanda (1) regulation 27 D (1) (b) of theEmergency Powers (Defence) Acts, 1939 and 1940, provided thatfor certain offences the accused shall “ be liable to suffer deathor imprisonment for life. ” The Assize Judge was of the opinionthat he had to pass either a sentence of death or of imprisonmentfor life that he could not pass a lesser sentence and that “ thepenalty was fixed irrevocably by law. ” Soertsz, J. in deliveringthe judgment of the Court of Criminal Appeal said at page 329:
“ Moreover the word liable is significant and in the context, canonly mean that a convicted party is in peril of a term of impri-sonment that may vary and extend to the period of his mortallife. ”
Similarly in the case of Ordinances which make provision forthe confiscation of vehicles and articles used in the commissionof offences the words “ liable to confiscation ” have been con-sistently interpreted as conferring on the magistrate a discretionto confiscate or not. One such ordinance is the Excise Ordinance
CA Nizar v. Inspector of Police, Waffegama (Vythialingam, J.)309
(Cap. 52) and the words used in section 54 (Ord. section 51 (2) )are “ be liable to confiscation. ” In the case of Sinnathamby v.Ramalingam (2), Schneider, J. held that where an offence hasbeen committed under the Excise Ordinance no order of confis-cation should be made under section 51 of the Ordinance asregards the conveyance used to commit the offence, for examplea boat or motor car, unless two things occur, first that the ownershould be given an opportunity of being heard against the orderand secondly that when the owner himself is not convicted ofthe offence no order should be made against the owner unlesshe is implicated in the offence which renders the thing liable toconfiscation.
That view has been consistently followed ever since—vide
P. Perera v. M. B. Abraham (S.I. Police) (3) ; MercantileCredit v. Sub-Inspector of Police et al. (4) ; and Excise InspectorFernando v. Marther & Sons (5) Another Ordinance which pro-vides for the confiscation of vehicles used in the commission ofoffences under it is the Forest Ordinance (Cap. 451) section 40and the words used again are “ be liable to confiscation. ” In thecase of Rasiah v. Thambirajah (6), Nagalingam, J. pointed out atpage 576, “In cases where the accused person convicted is nothimself the owner of the property seized, an order of confiscationwithout a previous inquiry would be tantamount to deprivingthe person of his property without an opportunity being givenhim to show cause against the order being made. It is one ofthe fundamentals of administration of justice that a personshould not be deprived either of his liberty or of his propertywithout an opportunity being given to him to show cause against
such an order being madeI think that if the owner can
show that the offence was committed without his knowledge andwithout his participation in the slightest degree justice wouldseem to demand that he should be restored his property. ”
So also in the case of Joslin v. S. Bandara (7), Thamotheram,
J. said “ The driver of the lorry pleaded guilty to a charge underthe Forest Ordinance and the lorry was liable to forfeiture pro-vided that where the owner proved to the satisfaction of theCourt that he had used all precautions to prevent the use of themotor vehicle for the commission of the offence, no such order
shall be made It has not been suggested that the owner
or her husband were in any way privy to the commission of theoffence or had any reason to anticipate the commission of theoffence. In these circumstances I am of the view that the ownerhad led sufficient evidence to show that all precautions whichcould have been taken, had been taken. ”
Sri Lanka Law Reports (1978-79) 2 S. L. R.
In all these Ordinances and Regulations there was no provisosimilar to the proviso to section 3A of the Animals Act and thedecisions in all the cases turned on an interpretation of thesections in which the words used “ be liable to confiscation ” isidentical with the words of section 3A. It was held in all thesecases that no order of confiscation should be made withoutgiving the owner an opportunity of showing cause and that ifhe succeeded in showing that he had taken all precautionsagainst the use of the vehicle for the commission of the offenceand that he was not in any way a privy to the commission ofthe offence then the vehicle ought not to be confiscated.
It may be argued that since the proviso to section 3A of theAct was omitted in the Emergency Regulations it was theintention not to give the owner an opportunity to show causeand the confiscation should automatically follow on conviction.But this is to to take a superficial view. The proviso to section 3Aonly provided for the showing of cause by an owner of the vehiclewho is a third party, that is to say one who is himself not theoffender. If one takes the view that a third party who is nothimself the offender cannot now show cause, then it wouldfollow from a consideration of the judgments cited above thatan owner who is himself the offender can still show cause buta third party owner who is in no way connected with thecommission of the offence cannot.
For as Nagalingam, J. pointed out in the case of Rasiah v.Thambirajah (supra) at page 375 “ The order in this case wouldappear to have been made in terms of section 40 of the Ordinance.That section, it is true, does not prescribe for an inquiry or forany special proceedings to be taken by a Magistrate beforeordering the confiscation of the property and learned CrownCounsel contends that an order of confiscation can automaticallyfollow an order of conviction. This contention can be upheldif one limits the rule to property of the person who has beenconvicted of the offence. For instance if the cart belongs to theaccused who was convicted in the case, the Magistrate may inexceptional circumstances directly make his order of confisca-tion after convicting the accused but even in such a case, as amatter of sound judicial discretion a Magistrate should makesome investigation before he makes the order of confiscation,thereby affording to the owner an oportunity of being heardagainst the order of confiscation being made. ”
So that the rule is ordinarily even where the owner is himselfthe offender he should, except in exceptional circumstances begiven an opportunity of being heard against the order of confisca-tion being made. If that be so then it would be manifesty unjust
CA Nizar v. Inspector of Police, Wattegama (Vythialingam, J.)311
and inequitable to deprive an owner who is not himself theoffender and who may be completely unaware of the use to whichhis vehicle is put of showing cause against the confiscation ofthe vehicle merely because the proviso had been removed. Nolaw making body or regulation making authority, can bepresumed to act so unreasonably.
Moreover where the identical words which have beeninterpreted in a particular way by the courts are retained orused in a later enactment or regulation it must be presumed thatthe words were used in the sense in which they had beeninterpreted earlier. In The Queen v. Alpin Singho (8), Basnayake,
J. said at page 456 “it is a well-established rule of constructionof statutes that where an Act of Parliament has received ajudicial construction putting a certain meaning on its words andthe Legislature in a subsequent Act in pari materia uses the samewords, there is a presumption that the Legislature used thosewords intending to express the meaning which it knew had beenput on the same words before ; and unless there is something torebut that presumption, the Act should be so construed even ifthe words were such that they might originally have been cons-trued otherwise. ”
The fact that the proviso to section 3A was not enacted in theEmergency Regulation is not sufficient to show that thepresumption has been rebutted. For since it had been held by theCourts that on an interpretation of the words “ be liable to con-fiscation ” both the owner who is convicted of the offence aswell as an owner who is a third party should be afforded anopportunity of showing cause, the regulation making authoritymay well have been of the view that the proviso was redundant.
In this connection it is significant that the Emergency Regula-tion made one significant change in section 3A. It provided forthe confiscation of the animal in respect of which such offencewas committed m addition to the confiscation of the vehiclewherc-as the original section 3A only provided for the confisca-tion of the vehicle. If it was the intention to alter the law aslaid down by the Courts the simplest thing to have done wasto have used some such words as “ shall be confiscated ” insteadof the words “ be liable to confiscation. ” That this was not doneis a clear indication that the interpretation given by the Courtswas still to prevail.
For these reasons I am of the view that the Magistrate wasclearly wrong when he took the view that in view of theremoval of the proviso to section 3A by the Emergency Regula-tion confiscation must automatically follow on conviction andthat he was imder no obligation to consider the cause shown
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
by the owner. On the uncontradicted evidence of the ownerit is clear that he was not in the lorry at the time of the detection,he had warned the driver against the use of the lorry for anyillicit purpose and that he was in no way privy to the commissionof the offence. In these circumstances the vehicle was not liableto confiscation. I therefore set aside the order confiscating thevehicle and direct that it be returned to the owner.
ABDUL CADER, J —I agree.
Nizar v. Inspector of Police, Wattegama