Samara wickrema v. Commissioner of Excise and another
COMMISSIONER OF EXCISE AND ANOTHER
COURT OF APPEALP.R.P. PERERA J. (P/C.A.)
AND ISMAIL JC.A. NO. 250/89M.C. MALIGAKANDA 83838APRIL 04, 1991
Excise Ordinance, Sections 15(a) and (f), 46(f) and (h), 47(1), 48 and 54(2*- Confiscation of lorry,
Even though the lorry In which the bottles of illicit liquor were stacked was only parked,it can be said that the lorry was "used in carrying" the bottles and the confiscationof the lorry was valid.
Case referred to
1. Renton & Co. Ltd. v. Palmyrah Trading Co. of Panama (1987) AC 149
APPLICATION in revision of the Order of the Magistrate of Maligakanda.
Ranjith Abeysuriya, P.C. with Lakshman Wickramatunga and Achala Wengappuli forpetitioner
Kalinga Indatissa, S.C. for the Attorney-General
Cur. adv. vult.
May 20 1991
P.R.P. PERERA J. (P/C.A)
This is an application by the petitioner to have the order of thelearned Magistrate dated 10.03.89, confiscating vehicle No. 41 Sri1113, and directing the same to be sold and the proceeds creditedto revenue, set aside by way of revision.
On April 04th 91, when the argument of this matter was concluded.State Counsel moved for time to file written submissions, and thisCourt has permitted the State to file written submissions on or before29.04.91. Written submissions of the petitioner in reply were due tobe filed on or before 03.05.91. The state has failed to file writtensubmissions before the due date and has thereafter filed certain
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(1991) 1 Sri L.R.
submissions on 02.05.91. The written submissions filed by the State,are therefore rejected as they have been filed out of time. No writtensubmissions have been filed by the petitioner'
The facts of this case are briefly as follows – On 18.09.87, plaintwas filed against three suspects under the provisions of the ExciseOrdinance. The plaint alleged that the suspects had on 09.09.87,committed the following offences.
An offence under Section. 15 (f) of the Excise Ordinance, anoffence punishable under Section. 46 (h) of the same Ordinance.
At the same time and place aforesaid, with having committed anoffence under Section. 15 (a) of the Excise Ordinance punishableunder Section 46 (f) of the Excise Ordinance.
That at the same time and place aforesaid with having committedan ofrence punishable under Section 47 (1) of the ExciseOrdinance.
That at the same time and place aforesaid with having committedan offence under Section 15 (a), punishable under Section 46
of the Excise Ordinance.
That at the same time and place with having committed anoffence under Section 47 (1) and punishable under Section 48
of the Excise Ordinance.
On 25.11.88 the aforesaid suspects pleaded guilty to the chargesagainst them. The learned Magistrate accordingly imposed a fine ofRs. 10,000/- on the 1st accused. The 2nd and 3rd suspects werefined Rs. 5000/- each.
Among the productions at the trial was the vehicle bearing RegisteredNo. 41 Sri 1113, which is the subject matter of this application. Onthe said date an application was made by the prosecution for theconfiscation of this vehicle in terms of section 54 (2) of the ExciseOrdinance. After inquiry the learned Magistrate made order on10.03.89 confiscating this vehicle and directed that it be sold andthe proceeds be credited to revenue.
CASamarawickrema v. Commissioner of Excise and another
(P.R.P. Perera J.)211
Counsel for that petitioner submitted that the said order was bad inlaw and had been made without jurisdiction. It was Counsel'ssubmission that the prosecution in this case, had conceded that atthe time of the detection by the officers of the Excise Department,this vehicle was parked, and in the vehicle was stacked 1,200 bottlescontaining illicit liquor. It was Counsel's complaint that in terms ofsection 54 (2) of the Excise Ordinance a vehicle is liable toconfiscation only if the same has been used in carrying an excisablearticle. Counsel urged that there was no material whatsoever toestablish that the said vehicles was used in the transportation of anyexcisable article. Therefore no order for confiscation was warrantedunder the provisions of section 54 (2) or any other section of theExcise Ordinance.
In view of this submission it is relevant at this stage to reproduceSection 54 (2) of the Excise Ordinance which reads as follows:
"Any excisable article lawfully imported, transported, manufactured,had in possession, or sold along with or in addition to, any excisablearticle liable to, confiscation under this section, and the receptacles,packages, and coverings in which any such excisable article,materials, still, utensil, implement, or apparataus, as aforesaid isfound, and the other contents, if any, of the receptacles or packagesin which the same is found, and the animals, carts vessels, or otherconveyance used in carrying the same shall likewise be liable toconfiscation."
Counsel submitted therefore that in terms of Section 54 (2) that itis only a conveyance used in carrying an excisable article which isliable to confiscation. Admittedly the vehicle in question was detectedby the Excise Officers while it was parked. According to the ConciseOxford Dictionary, the word "carry" means 'to convey in vehicle, shiphand or head etc.' The word "convey" according to this Dictionary,means "to transport" and the word "transport" is defined as"transportation from place to place". Therefore, on a strictinterpretation of the word carry supports the submission of Counselwho argued that in order to come within the provisions of section54 (2) the vehicle with the illicit liquor should have been in motion,at the time of detection.
Having regard however to the relevant provisions of the ExciseOrdinance, and the object which this statute sought to achieve, I am
Sri Lanka Law Reports
(1991) 1 Sri L.R.
of the opinion that it would not be in the interests of justice to givesuch a technical interpretation to the words “used in carrying" insection 54 (2). I find support for this view in the decision of theHouse of Lords in Renton and Co Ltd. vs. Palmyrah Trading Co. ofPanama 1987 A.C. 149 where a ship was held “to carry" goods fromthe moment they are loaded on board. Their Lordships in this caserejected the contention that there must be some evidence oftransportation of motion, for a Court to arrive at a finding that thegoods were being carried (Vide per Lord Morton at page 171).
Having regard to the provisions of the Excise Ordinance, and themischief this Statute sought to prevent, I am of the opinion that thewords “used in carrying" must necessarily be given a widerinterpretation. In the instant case the vehicle in question was stackedwith 1,200 bottles containing illicit liquor at the time of detection, andit would be inappropriate to give such a restricted meaning to thephrase “used in carrying" as contended for by Counsel in interpretingthe provisions of section 54 (2) of the Excise Ordinance.
I therefore affirm the order of the learned Magistrate, dated 10thMarch 1989, confiscating lorry bearing Registered No.41 Sri 1113,and hold that such order was validly made under the provisions ofsection 54 (2) of the Excise Ordinance. The application of thepetitioner is accordingly dismissed.
ISMAIL, J – I agree
ASSISTANT COMMISSIONER OF AGRARIAN SERVICES AND
COURT OF APPEAL,
S.N. SILVA, J.
C.A. APPLICATION NO. 1081/83
JULY 6, SEPTEMBER 26, AND DECEMBER 12, 1990.
Wrif of Certiorari – Agrarian Services Act No. 58 of 1979, Section 18(1) – Arrears ofrent- Prescription – Prescription Ordinance, Section 7 – Estoppel – Presumption againstretrospective operation.
SAMARAWICKREMA v. COMMISSIONER OF EXCISE AND ANOTHER