130-NLR-NLR-V-53-RASIAH-Petitioner-and-TAMBIRAJAH-Divisional-Forest-Officer-.-Respondents.pdf
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NAGALENGAM J.—Rasiah v. Tambirajah
1951Present : Nagalingam J.
RASIAH, Petitioner, and TAMBIRAJAH (Divisional ForestOfficer) et al., Respondents
S. C. 360—Application in revision in M. C. Point Pedro, 14,264
Forest Ordinance (Cap. 311), ss. 40, 43—Order of confiscation—Legality of ex parteorder—Right of appeal—Revision—Criminal Procedure Code, s. 340.
Where a person is convicted of a forest offence, property used by him in thecommission of the offence but belonging to a third party cannot be confiscatedby order of Court under section 40 of the Forest Ordinance without anopportunity being given to the third party against the order being made.
Held further, that if an order of confiscation is made against such third partyex parte, he is entitled to move in revision and is not bound by the time limitimposed by section 43 of the Forest Ordinance in relation to appeals.
APPLICATION to revise an order of the Magistrate’s Court, PointPedro.
H. Wanigatunga, with M. Ramalingam, for the petitioner.
B. T. Premaratne, Crown Counsel, for the Attorney-General,
Cur. adv. vult.
October 25, 1951. Nagalingam J.—
This is an application in revision by the petitioner who claims to be theowner of a double bullock cart which was ordered to be confiscated by theMagistrate in these proceedings upon his convicting the accused personwho had transported firewood in the cart without permit or pass in breachof Regulations, framed under the Forest Ordinance. The order of confis-cation was made on 30th May, 1951. These papers were filed on 11thJuly, 1951.
1 (1907) 9 N. L. R. 316.
* (1913) 16 N. L. R. 57.
NAGALINGAM J.—Rasiah v. Tambirajah
575
Learned Crown Counsel takes a preliminary objection to this appli-cation on the ground that the petitioner, who has been given a right ofappeal by section 43 of the forest Ordinance, not having exercised thatright, is precluded from seeking relief which he could have obtained byway of appeal but for his laches by filing papers in revision.
Section 37 of the Forest Ordinance provides that a Forest or PoliceOfficer may seize any timber or forest produce in respect of which aforest offence has been committed as well as all tools, boats carts andcattle used in committing such offence. Section 43 goes on to prescribethat any person claiming to have an interest in properly seized undersection 37 may within thirty days from the date of any order passedunder section 40 or 41, that is to say, an order of confiscation, presentan appeal to this Court. It has been urged that the words “ any personclaiming to have an interest in property seized ” are wide enough toinclude a person with an interest in the property seized but who has notappeared in Court and taken no part in any proceedings before Court.At first sight such a construction would appear to receive countenancetom the very wide wording of the language, but on closer scrutiny itwould be found that this contention cannot be sustained.
In Section 340 of the Criminal Procedure Code, which deals with themode of filing a petition of appeal, there is an<express requirement thatthe grounds of appeal should be set out. If no proceedings had takenplace before the Magistrate and in fact the person interested in the pro-perty had not appeared before him at any stage before an order of confis-cation was made, it will be difficult to set out in a petition of appeal thegrounds upon which the person interested appeals from the order of theMagistrate. The words italicized by me are of special importance becausean appeal always means an appeal from an order previously made andwith which the party appealing is dissatisfied. In a case such as this theappellant can give no grounds of appeal because he has no knowledgeof the reasons that would have actuated the Magistrate in making theorder, for no grounds were placed before the Magistrate for adjudication,and the only ground of appeal, if one may regard it as a ground of appeal,would be that the Magistrate's order is wrong, which certainly would notbe very illuminating. The section, therefore, must be limited in itsapplication to persons interested in the property seized and who hadappeared before the Magistrate and in respect of whose claims theMagistrate had made the order.
1 do not, therefore, think that the preliminary objection is entitled tosucceed.
The main question is whether the learned Magistrate was right inordering the confiscation of the cart without, an inquiry having been heldby v»im before making the order. The order in this case would appearto have been made in terms of section 40 of the Ordinance. That section,it is true, does not prescribe for an inquiry or for any special proceedingsto be taken by a Magistrate before ordering the confiscation of theproperty and learned Crown Counsel contends that an – order of confis-cation can automatically follow an order of conviction. This contentioncan be upheld if one limits the rule to property of the person who has
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NAOALIN’GAM J.—Rasiah v. Tambtrajah
been convicted of the offence. For instance, if the cart belongs to theaccused who was convicted in the case, the Magistrate may in exceptionalcircumstances directly make his order of confiscation after convicting theaccused, but even in such a case, as a matter of sound judicial discretion aMagistrate should make some investigation before he makes the order ofconfiscation, thereby affording to the owner an opportunity of beingheard against the order , of confiscation being made. In cases where theaccused person convicted of the offence is not himself the owner of theproperty seized, an order of confiscation without a previous inquirywould be tantamount to depriving the person of his property without-an opportunity being given him to show cause against the order beingmade.
It is one of the fundamentals of administration of justice that a personshould not be deprived either of his liberty or of his property without anopportunity being given to him to show cause against such an order beingmade. To take a case, which cannot be regarded as an extreme one,where an owner lends or hires his cart to another without knowing thatthe borrower or the hirer intends to use it for the purpose of committingan offence, would it be right to confiscate the cart merely because it hasbeen so used ? I think if the owner can show that the offence wascommitted without his knowledge and without his participation in theslightest degree justice would seem to demand that he should be restoredhis property.
It has been contended by learned Crown Counsel that the Magistratemay find it difficult to trace the owner. In fact, in this case, the accusedwho was convicted stated that the cart had been driven by one Rasiahand that it did belong to one Nadarajah. There was material, therefore,in this case in any event, for the Magistrate to have noticed either Rasiahor Nadarajah or both of them in order to ascertain the ownership of thecart. But even if there was no such evidence, I think the Magistrateshould have called upon the prosecuting officer to lead evidence as regardsthe ownership of the vehicle. Learned Crown Counsel stresses that theremay be a case where the Police themselves are unable to trace .the ownerof the cart. The decision in regard to such a case is best allowed toremain over till the case itself actually arises.
It would be clear that the order of the learned Magistrate ordering theconfiscation of the cart without the owner being given an opportunity ofboing heard cannot be upheld. I would therefore set aside the orderconfiscating the cart pro forma and direct the Magistrate to hold aninquiry into the application of the petitioner and make such order asto him shall seem just.
Order pro forma set aside.
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