065-SLLR-SLLR-1995-2-NIZAR-V.-SUB-INSPECTOR-KIRINDA-AND-ANOTHER.pdf
CA
Nizarv. Sub-Inspector, Kirinda and Another
417
NIZAR
V.
SUB-INSPECTOR KIRINDA AND ANOTHER
COURT OF APPEAL.
DR. A. DE Z. GUNAWARDANA, J.
C. A. NO. 861/85
PC. PALAPATHWELA COURT NO. 14251MARCH 17 AND 23, 1994.
Animals Act No. 29 of 1958 as amended by Act No. 20 of 1968, Section 3A -Whether the Primary Court has jurisdiction to make an order for the confiscationof the vehicle, used in the commission of an offence – Exclusivity of thejurisdiction of the Primary Court – Section 33(1) and Section 33(2) of theJudicature Act No. 2 of 1978.
The driver and the cleaner of the lorry used for transport of cattle, without apermit, were convicted and fined by the Primary Court, for committing offencesunder the Animals Act and Prevention of Cruelty to Animals Ordinance. After aninquiry into the disposal of the lorry used for the transportation of cattle, without apermit the Primary Court made Order confiscating the said lorry.
Held:
that it is clear from the evidence and the other circumstances proved in thecase that, the vehicle had been used for the transport of cattle, without a permit,with the knowledge of the petitioner, who is the owner of the said lorry.
that in terms of Section 33(1) and (2) of the Judicature Act. the Primary Courthad exclusive jurisdiction, to try offences under Section 37 of the Animals Act. It isspecifically stated in Section 3A of the Animals Act that, in addition to thepunishment prescribed for such offence, the vehicle used in the commission ofsuch offence, “be liable, by order of the convicting Magistrate to confiscation.”Therefore, the Primary Court which convicted the accused in this case, is theproper Court to make an Order of confiscation of the vehicle, used for thecommission of the offence.
Per Dr. Gunawardana, J. “In my view, if Section 3A of the Animals Act isinterpreted to mean that, the trial for offences under the Animals Act can be heldin the Primary Court, but the inquiry into the disposal of the vehicle used in thecommission of an offence, under that Act must be held by a Magistrate, would notonly be contrary to the provisions of law, I have enumerated above, but wouldalso negate the intention of the legislature.”
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[1995] 2 Sri L.R.
APPLICATION for Revision of the judgment and Order of the Primary Court ofPalapathwela.
F. Mustapha P.C. with Rohan Sahabandu for petitioner.
M.£ Hadi S.C. for Attorney-General.
Cur. adv. vult.
March 23,1994.
DR. A. DE Z. GUNAWARDANA, J.
This is an application for revision, of an Order of the LearnedPrimary Court Judge of Palapathwela, dated 11.6.1985, wherebylorry No. 24 SRI 6274, owned by the Petitioner, was ordered to beconfiscated under Section 3A of the Animals Act, for transporting ofcattle, without a permit.
The driver and the cleaner of the said lorry, who were charged, inthe same case, for committing offences under Section 3(1) of theAnimals Act and Section 2(1) (b) of the Prevention of Cruelty toAnimals Ordinance, pleaded guilty to the said charges, and wereconvicted on their own plea, by the learned Primary Court Judge,and each of them were sentenced to pay a fine of Rs. 100/-.
At the inquiry into the disposal of the said lorry, the petitioner gaveevidence and stated that, he was unaware that the lorry was beingused for the transport of cattle, without a permit. However, the owneradmitted that the body of the said lorry is specially built in such away, with wire fencing, to enable the transport of cattle. He admittedin cross-examination that, there were at least two cases in the NaulaMagistrate Court, where his employees were fined, and in which thesaid lorry was involved in the transport of cattle, without a permit. TheNaula Magistrate Court numbers of the said two cases are, 7219 and12892.
It is interesting to note that, the Learned Magistrate has pointedout that in one of the cases cited before him, viz. Nizar v. Inspector ofPolice, Wattegama, reported in (1978-79) 2 SLR 304, the name of thepetitioner before the Court of Appeal, is the same as the presentpetitioner in this case. Furthermore, the registered number of the lorry
CA Nizar v. Sub-Inspector, Kirinda and Another (A. De Z. Gunawardana, J.)419
is also the same. More pertinently, it was a Revision Application,made to the Court of Appeal, to set aside an order of confiscation ofthe said lorry, made by the learned Magistrate of Kandy, as the saidlorry had been involved in the transport of cattle, without a permit.The learned State Counsel submitted that, it is apparent that, it is thesame petitioner and the same lorry that related to the said RevisionApplication.
Having considered the above stated facts and circumstances thelearned Magistrate has come to the finding that the vehicle had beenused for the transport of cattle, without a permit, with the knowledgeof the petitioner. After carefully examining the reasons given by thelearned Magistrate and the evidence in the case, I see no reason todisturb the said finding.
The learned Counsel for the petitioner submitted that, the learnedPrimary Court Judge had no jurisdiction to make an order ofconfiscation, under the Animals Act, and that such an order can bemade only by a Magistrate. He pointed that Section 3A of the AnimalsAct states that, “…Any vehicle used in the commission of suchoffence shall, be liable, by order of the convicting Magistrate, toconfiscation". He further stated that under Section 37 of the AnimalsAct, any person who commits an offence under that Act, is liable to afine not exceeding Rs. 50/■ or to simple imprisonment for a term notexceeding one month, and for a second or subsequent offence, to afine not exceeding Rs. 100/- or to simple imprisonment, for a term notexceeding 2 months.
It must be noted that under Section 33(1) of the Judicature Act, thePrimary Court has been given exclusive original criminal jurisdiction,in respect of offences prescribed by the Minister, by regulation. Inaddition, Section 33(2) of the Judicature Act states that, the PrimaryCourt shall have sole and exclusive jurisdiction in respect of alloffences, alleged to have been committed in violation ofthe provisions of any enactment or any subsidiary legislation madethere under, in respect of which jurisdiction is vested in the PrimaryCourt.
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Sri Lanka Law Reports
[1995] 2 Sri LR.
In terms of the said provision the Minister by Gazette notificationNo. 43/4 of 02.7.1979, has designated all offences under Section 37of the Animals Act No. 29 of 1958, to be within the exclusivejurisdiction of the Primary Court. Thus the Court that is exclusivelyvested with the jurisdiction to try offences under 37 of the AnimalsAct is the Primary Court.
It is specifically stated in Section 3A of the Animals Act that inaddition to the punishment prescribed for such offence, the vehicleused in the commission of such offence, "be liable, by order of theconvicting Magistrate to confiscation”. Hence in terms of the saidprovision the order of confiscation is required to be made by theconvicting Magistrate.
Being vested with the exclusive jurisdiction to try offences underthe Animals Act, the Primary Court is the Court which has the powerto convict persons accused of offences under the said Act.Therefore, the Primary Court which convicted the accused in thiscase, is the proper Court to make an Order of confiscation of thevehicle, used for commission of the offence.
The learned Counsel for the petitioner conceded that the PrimaryCourt had the jurisdiction to try the offences under the Animals Act,with which the accused were charged with. In my view, if Section 3Aof the Animals Act is interpreted to mean that, the trial for offencesunder the Animals Act can be held in the Primary Court, but theinquiry into the disposal of the vehicle used in the commission of anoffence, under that Act must be held by a Magistrate, would not onlybe contrary to the provisions of law, I have enumerated above, butwould also negate the intention of the legislature. Therefore, I holdthat Primary Court had the jurisdiction to order the confiscation of thepetitioner’s lorry, used in the commission of the offences, for whichthe accused have been convicted. Accordingly, the said Order of thelearned Primary Court Judge, dated 11.6.1985, is hereby upheld,and the application for Revision is dismissed.
Application dismissed.