039-NLR-NLR-V-37-POLICE-SERGEANT-v.-RAMAN-KANGANY-et-al.pdf
MACDONELL, C.J.—Police Sergeant v. Raman Kang any.
187
1935Present: Macdonell C.J.
POLICE SERGEANT v. RAMAN KANGANY et al.
370-372—P. C. Hatton, 1,565.
Confiscation of property—Property used for commission of offence•—Statutoryoffence—Powers of Police Magistrate—Criminal Procedure Code,s. 413 (1).
Where a person was convicted under section 5 (2) of the Game Pro-tection Ordinance of attempting to capture or kill a game animal withouta licence,—
Held, that the Police Magistrate had no power under section 413 (1)of the Criminal Procedure Code to order the confiscation of the gunfound upon the accused at the time of the offence.
PPEAL from a conviction by the Police Magistrate of Hatton.
C. V. Ranawake, for appellant.
S.J. C. Schokman, C. C., appears as amicus curiae, on notice.
February 15, 1935. Macdonell C.J.—
In this case the appellant was convicted under section 5 (2) of Ordi-nance No. 1 of 1909 for attempting to capture or kill a game animalwithout a licence. The learned Magistrate when sentencing the appellantto a fine of Rs. 50 also made order confiscating the gun found upon him atthe time of the offence. The appeal against the conviction itself was» 2 N. L. R. 159.2 17 N. L. R. 238.
188
MACDONELL C J.—Police Sergeant v. Raman Kangany.
dismissed by my brother Garvin. I now have to determine whether theorder confiscating the gun can be sustained.
The order of confiscation was made under section 413 (1) of the CriminalProcedure Code, which is as follows : —
“413.(1) When an inquiry or trial in any criminal court is con-
cluded the court may make such order as it thinks fit for the disposalof any document or other property produced before it regarding whichany offence appears to have been committed or which has been usedfor the commission of any offence.”
There have been a number of conflicting decisions on this section bothhere and in India, namely, whether the section does empower the con-fiscation of property which is used for the commission of any offence.In this difficulty I prefer to follow the judgment of Ennis J. in Govinden v.Nagoor Pitche He says, “ Under the section it is clear that an orderfor the disposal of property may be one of forfeiture, as when knives, guns,or clubs are used in the commission of an offence. In such a case areorder that they are to be handed to the police for custody, sale, or destruc-tion would work a forfeiture and would come within the section”. Withall respect I would agree with these dicta. When in India it becamenecessary to amend this section, it was amended to read “ For thedisposal by destruction, confiscation, or delivery of any document or otherproperty ”, thus plainly showing, so it seems to me, that the word“ disposal ” is in itself capable of including the notion of confiscation.The amended Indian Act was not an alteration of the law but an expla-nation of what the existing law meant. Ennis J. in the case cited,continues, “ In considering the matter it is desirable to take an illus-tration : e.g., a baulk of timber belonging to an accused may (1) be usedas a battering ram for the commission of housebreaking, and (2) beexposed on the public road in such a manner as to obstruct passengers.May an order for forfeiture be made in the one case and not in the other ?The illustration sufficiently shows that the kind or value of the propertydoes not affect the question. In my opinion the distinction lies in thowords ‘ used for ’. When can property properly be said to be * usedfor ’ the commission of an offence? In the case of the printing pressmentioned above, the Judges added:‘ We are also of opinion that the
press could not be said to have been used for the commission of the offencein the same way as a gun, sword, or dagger. The offence was publicationand not printing, and the press is a remote instrument ’. In my opinionthe question resolves itself into one of fact in each case. In the illus-tration I have given, if the baulk of timber were used for the purpose ofobstructing passengers an order for confiscation could be made, but if itwere being carried along the road and incidentally obstructed passengers,through want of care in the transport or otherwise, although it may besaid to have been ‘ exposed so as to obstruct passengers ’, it cannot besaid to have been ‘ used for ’ the purpose of obstruction; the offence isthe consequence of an unlawful user of the property on the one hand, andis incidental to a lawful use of the property on the other ”. I would alsorespectfully concur in these passages from the judgment, and applying
1 20 N. L. R. 125, at p. 118.
POYSER J.—Adihetty v. Wijeysekere.
189
them to the present case I would be inclined to hold that the gun herewas “ used for ” the commission of the offence of which the appellant wasconvicted, and therefore liable to confiscation. Ennis J. then proceedsto say, “ I doubt if any statutory offence as distinct from an offence underthe Penal Code would ever, in the absence of express provision, justifyan order for forfeiture We must remember that forfeiture orconfiscation is a penal provision and the power to confiscate shouldclearly be given by law. The offence of which the appellant has beenconvicted in this case is not an offence under the Penal Code, but under aspecial statute. That statute does not seem to give the power ofconfiscation, and I think it will be best if I follow the opinion just quoted ofEnnis J. If that is so, then the confiscation of this gun was not authorizedunder section 413 (1) of the Criminal Procedure Code, and I set aside theorder appealed from.
I gather that an Ordinance has been drafted for the better protectionof wild animals in the Island, with a view to preventing the wantonslaughter of the same which is said to be going on at present almostunchecked. If this is so, an opportunity seems clearly to have arisen toamend the statute law on this and similar points and to give statutorypower of confiscating guns and other instruments used in the unlawfulpursuit of game.
Set aside.