CA Silva and Another V. O.l.C. Police Station, Tambuttegama and Another 83
SILVA AND ANOTHERV.
OFFICER-IN-CHARGE, POLICE STATION,TAMBUTTEGAMA AND ANOTHER
COURT OF APPEAL.
S. N. SILVA, J.
C. A. APPLICATION NO. B61/99.
M. C. ANURADHAPURA NO. 58715.
SEPTEMBER 13 AND 17, 1991.
Animals Act – Prevention of Cruelty to Animals OrdinanceSeizure of animals – section 431(1) and (2) of the Code of CriminalProcedure Act., No. 15 of 1979.
Three persons were charged under the Animals Act and thePrevention of Cruelty to Animals Ordinance, with offences connectedwith the transport of 45 head of cattle in a lorry.
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Section 431(1) of the Code of Criminal Procedure Act deals withthree categories of property seized by a police officer :
Property taken under section 29 of the Code relating to thesearch of persons who are arrested,
Property alleged or suspected to have been stolen,
Property found under circumstances which create a suspicionof the commission of any offence.
The section requires the matter of delivery of property to be dealtwith expeditiously.
Section 431(1) and (2) give a discretion to the magistrate todecide on the following matters with regard to property, the seizureof which is reported to him:
Whether the property should be kept in official custodypending the conclusion of the inquiry or trial.
Whether the property should be delivered to the person entitledto possession pending the conclusion of the inquiry or trialon conditions to be imposed.
Whether the property should be delivered to such personwithout conditions.
The matters set out in (1) and (2) will arise when a prosecution ispending or likely. The matter set out in (3) will arise when no prose-cution is pending or likely. The discretion thus given to the magis-trate must be exercised judicially i.e. according to sound principles oflaw and not in an arbitrary manner. In terms of section 431(1) a per-son entitled to the possession of property seized by police has a rightto make an application for the delivery of such property to him.Such a person could be refused delivery only on the basis of an orderwhich specifies the grounds of such refusal.
In deciding whether property should be kept in official custodythe relevant matters will be, the need to identify the property inevidence, the liability to confiscation, the likelihood of speedy andnatural decay and the adequacy of the facilities available to keepsuch property. The magistrate has to consider these matters and anyother relevant matters as may be urged by either party and decidewhether it is absolutely necessary to keep such property in officialcustody pending further proceedings. A decision to keep the property
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in official custody or to release it to a claimant on conditions pending furtherproceedings may be reviewed by the Magistrate at any later stage on an appli-cation made by either party.
t here are limitations to the principle that property must be delivered tothe person from whose possession it was seized, since it may result in theproperty being delivered to a person who may have obtained possessionthrough criminal means. In such an event the Magistrate may have to con-sider the question of title.
The order for payment of upkeep expenses of the cattle handed over bythe Magistrate to a third party has no legal basis.
Compensation for any cattle that died during the custodial period andreimbursement expenses can be considered only in appropriate proceedings.
Cases referred to:
Punchinona v. Hinni Appuhamy 60 NLR 518
Jayasiri v. Warnakulasuriya 61 NLR 189
Piyadasa v. Punchibanda 62 NLR 307
Costa v, Peiris 35 NLR 326, 328
Sugathapala v. Thambirajah 67 NLR 91
Balagalle v. Somaratne 70 NLR 382
Thirunayagam v. Inspector of Police Jaffna, 74 NLR 161
Freudenbcrg Industries Ltd. v. Dias Mechanical Engineering Ltd.
C.A, Application No. 69/79 C.A. Appeal No. 102/82, Court ofAppeal Minutes of 14.7.1983.
Baseva v. State of Mysore (1977) AIR (S.C. 1749, 1751)
APPLICATION for Revision of the order of the Magistrate of Anurad-hapura.
Upali Gunaratne with Hemantha Carnage and Ranil Dharmasekera for Peti-tioners.
Prasanna Gunatilleke S.C. for respondents.
November, 29. 1991.
S. N. SILVA, J.
Three persons were charged in the above case with offencesconnected with the transport of 45 head of cattle in lorry bear-ing number 29 Sri 7904 on 29-07-1990. The offences are under
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the Animals Act and the Prevention of Cruelty to AnimalsOrdinance and are alleged to have been committed at Morag-oda on the Kurunegala-Anuradhapura Road within the policedivision of Thambuttegama. The offences under the AnimalsAct are based on the premise that there was no certificatefrom the Government Vetenary Surgeon in respect of the headof cattle and that there was no permit issued by the Govern-ment Agent authorising tha transport. These offences areunder section 3 of the Act read with the regulations madeunder that section. The 4th offence under the Prevention ofCruelty to Animals Ordinance is for a contravention of section2(l)(c) by transporting cattle in a manner as to cause unneces-sary pain and suffering.
The accused (who were travelling in the lorry at the time ofthe detection) were produced with the 45 head of cattle, thevouchers for the purchase of cattle and the lorry, in the Magis-trate’s Court on 30-07-1990, on a report in terms of section136(l)(b) of the Code of Criminal Procedure Act, No. 15 of1979. The accused pleaded not guilty to the charges and werereleased on cash and certified bail. On the same day, an appli-cation was made for the release of the cattle and the lorry,pending trial, on security. Learned Magistrate refused thisapplication without giving reasons and fixed the case for trial.On 01-08-1990 a further application was made for the releaseof these items. Learned Magistrate refused this application aswell, on the basis that the lorry is liable to confiscation andthe release of the cattle “amounts to an encouragement tocommit the offences again”. On 03^08-1990 upon a minutemade by the Registrar learned Magistrate directed that the cat-tle be handed over temporarily to the Chairman of the Gra-modaya Mandalaya of Thantirimale in order to ensure theirprotection and the prevention of any cruelty to them. Theorder is subject to the condition that the cattle be producedwhen required by Court. At that stage this application in revi-sion was filed in respect of the orders made by the learnedMagistrate regarding the productions. Notice was issued on the
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Respondents by -this Court and the application was fixed forhearing on 02-02-1991. In the meanwhile, the trial proceededin the Magistrate's Court and on 22-01-1991 learned Magis-trate discharged the three accused without calling for a defenceon the basis that the prosecution has not established a primafacie case against them. Learned Magistrate also directed thatthe lorry and the cattle be released to the respective claimants,who are the Petitioners to this application. It appears that thelorry was removed pursuant to this order.
When this application came up for hearing on 01-02-1991,Mr. Upali Gunaratne, Senior Counsel for the Petitioners sub-mitted that the 2nd Petitioner went to remove the cattle pur-suant to the order of the learned Magistrate and the Chairmanof the Gramodaya Mandalava of Thantirimale demanded fromthe Petitioner a sum of Rs. 50,000/- for looking after the cat-tle It was further submitted that the 2nd Petitioner bargainedwith the Chairman and ultimately paid a sum of Rs. 43,000/-and removed the cattle. Mr. Gunaratne undertook to file anaffidavit from the 2nd Petitioner- in support of this submission.Accordingly, an affidavit dated 20-01-1991 was filed by the2nd Petitioner regarding this matter. The affidavit states thatthe money was demanded and taken by the Chairman as“kanu gastuwa”.
When this matter came up on 19-02-1991 this Courtdecided to call for a report from the learned Magistrate ofAnuradhapura regarding the matters stated in the affidavit ofthe 2nd Petitioner. The report of the learned Magistrate isdated 25-02-1991. Learned Magistrate has stated that he ques-tioned the Chairman of the Gramodaya Mandalaya, being aBuddhist monk, and that the Chairman admitted that he reco-vered from the 2nd Petitioner a sum of Rs. 41,345. This sum ismade up as follows:„
Kanu gastu for 173 days35,465/-
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The report also discloses that in addition to the above sum,an amount of Rs. 1,125/- was charged by the Magistrate'sCourt as “kanu gastu” from the 2nd Petitioner for the periodthe cattle were' kept in the Court compound.
Another matter to be noted is that the 2nd Petitioner in hisaffidavit stated that only 41 head of cattle were returned onthe basis that 4 died whilst at Thantirimale. This statement isalso supported by the report of the 'earned Magistrate in thatkanu gastu has been charged for only 41 head of cattle.
On the aforesaid facts learned Senior Counsel for the Peti-tioners urged that the following matters be considered by thisCourt, in revision;
the legality of the orders of the learned Magistrate ref-using to release the productions on 30-07-1990 and01-08-1990;
the legality of the order made by the learned Magis-trate handing qver the cattle to the Chairman of theGramodaya Mahdalaya on 03-08-1990; and
the legality of the demand and receipt of the money bythe Chairman of the Gramodaya Mandalaya, pursuantto the order made by the learned Magistrate.
The foregoing matters on which submissions were made bylearned Senior Counsel for the Petitioners and learned StateCounsel involve the application of section 431 (1) and (2) ofthe Code of Criminal Procedure Act. These provisions arefound in the chapter titled “the disposal of property-the sub-ject of offences”. There are two main sections in the chapterwith regard to the “disposal” of property. Section 425 dealswith the question of disposal of property produced before theCourt, when the inquiry or trial, is concluded. This section isthe same as section 413 of the former Criminal Procedure
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Code. The other, is section 431 which is substantially the sameas section 419 of the Criminal Procedure Code. Section 431 (1)and (2) read as follows:
“431 (1). The seizure by any police officer of propertytaken under section 29 or alleged or suspected tohave been stolen or found under circumstanceswhich create suspicion of the commission of anyoffence shall be immediately reported to a Magis-trate who shall forthwith make such order as hethinks fit respecting the delivery of such propertyto the person entitled to the possession thereof,or if such person cannot be ascertained respect-ing the custody and production of such property.
If the person as entitled is known the Magistratemay order the property to be delivered to him onsuch conditions (if any) as the Magistrate thinksfit. If such person is unknown the Magistratemay detain it and shall in such case publish anotification in the Court notice-board and twoother public places to be decided on by the Mag-istrate, specifying the articles of which suchproperty consists and requiring any person whomay have a claim thereto to come before him andestablish his claim within six months from thedate of such public notification.
Subsection (1) deals with three categories of property seized bya police officer, namely:
property taken under section 29 of the Code relating tothe search of persons who are arrested;
property alleged or suspected to have been stolen,
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property found under circumstances which create asuspicion of the commission of any offence.
It requires such seizure of property to be reported “imme-diately” to a Magistrate. The Magistrate is required to “forth-with” make an order respecting the delivery of such property.
It is to be noted that this section is different from theformer section 419 only in one respect. That is, in this sectionthe Magistrate is required to make the order “forthwith”. It isclear from the requirement on the police to report the seizure“immediately" and the Magistrate to make an order “forth-with” that the legislature intended the matter of delivery ofproperty to be dealt with expeditiously.
A further aspect in section 431 which is significant, is theelement of discretion vested in the Magistrate. This element ofdiscretion is manifest from the use of the words “as he thinksfit” in subsection (Ij and the words “the Magistrate may orderthe property to be delivered to him” in subsection (2).
In the cases of Punchinona v. Hinni Appuhamy (i), Jaya-s/ri v. Wamakulasariya (2), and Piyadasa v. Punchibanda (3),H. N. G. Fernando, J. (as he then was) considered the applica-tion of section 419 of the Criminal Procedure Code being thecorresponding provision then in force and expressed the viewthat the Magistrate could order the delivery of property if hedoes not consider “official” custody to be necessary. Fer-nando, J, cited the following passage from the judgment of deSilva, AJ in the case of Costa v. Peiris (4):
“When the property seized has been removed from thepossession of a person a Court has a larger discretionunder section 413 as to the order it can make than ithas under section 419. Under the latter section it haseither to return the property to the same person orrefuse to do so if it thinks it necessary to detain theproperty for the purposes of proceedings before it.”
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Following the aforesaid dicta, Fernando, J. in the threecases referred above held that if the "Magistrate does not con-sider official custody to be necessary he has no alternative butto order delivery back to the person from whose possession theproperty was seized.” In other words the phrase “to the per-son entitled to the possession” as appearing in section 431 (1)was construed as meaning, to the person from whose posses-sion the property was seized. As a broad principle, this con-struction is consistent with the dicta in India and in this coun-try, primarily on the premise that this provision is notintended to confer a jurisdiction on the Magistrate to decidedisputed claims to possession. However, there are obvious lim-itations to its general application, because it may result in theproperty being delivered to a person having no legal right topossession but obtained possession through criminal means.Hence in the later cases starting from the judgment of SriSkandarajah, J. in Sugatbapala v. Thambirajah, (5) 67 N.L.R.certain modifications of this principle were evolved. This trendwas followed by Sirimanne, J. in the case of Balagalle v.Somaratne, (6) and by Samarawickreme, J in the case of Thi-runayagam v. Inspector of Police Jaffna (7), In the case ofFreudenberg Industries Ltd. v. Dias Mechanical EngineeringLtd. (8), Seneviratne, J. examined the two lines of authorityand observed that the principle that property be delivered tothe person who had possession of it at the time of seizure willnot apply if there is an “unlawful” or “criminal” element insuch possession. This observation is consistent with the currenttrend of authority in India as seen from the following passagein Sohoni’s The Code of Criminal Procedure, 1973, 18th Edi-tion, 1986 p4839:
“But in determining who is entitled to possession, actualpossession of the property may be a relevant factor, butnot conclusive. The words “entitled” to the possessionof the property” are not to be equated with actual pos-session or with the expression “the person from whomthe property is seized or taken”. Where it is proved
that the nersnii frnm whntf nncc«tinn
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was seized came by it dishonestly, the Magistrate mayhave to consider the question of title. But where theperson from whose possession the property was seizedis not shown to have committed any offence in iclationto that property which means he was lawfully in pos-session, he would be entitled to possession’’.
The provisions of our Code arc based on the Indian Crimi-nal Procedure Code of 1898 which was in force up to theenactment of the new Code of 1973. The provisions of the newCode that correspond to our sections 425 and 431 are respec-tively sections 452 and 457. However, in India they havealways had a provision (section 516-A in the Code of 1898 and431 in the Code of 1973) which specifically deals with the cus-tody of property pending “the conclusion of the inquiry ortrial”. The absence of a similar provision in our Code is notsignificant considering that our Courts have interpreted section431(1) on the basis that the Magistrate will order delivery of
property seized by the Police where it is considered that “offi-cial” custody of such property is not necessary. Furthermore,section 431(2) empowers the Magistrate to order the deliveryof property on such conditions as he thinks fit. Hence approp-riate conditions could be placed to ensure the due productionof the property when required.
On the basis of the aforesaid analysis I am of the view thatsection 431(1) and (2) give a discretion to the Magistrate todecide on the following matters with regard to property, theseizure of which is reported to him. They are:
Whether the property should be kept in "official” cus-tody pending the conclusion of the inquiry or trial;
Whether the property should be delivered to the personentitled to possession pending the conclusion of theinquiry or trial, on conditions to be imposed;
Whether the property should be delivered to such per-son without any conditions.
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The matters set out in (i) and (ii) will arise when a prosecu-tion is pending or likely. The matter set out in (iii) will arisewhen no prosecution is pending or likely.
The discretion thus given to the Magistrate should be exer-cised judicially. The following comment in Sohoni with regardto the discretion given to the Court by section 452 of theIndian Code is appropriate in this regard:
“This section invests the Court with a discretionarypower and it is a rule of law that such power must beexercised judicially, i.e. according to sound principlesof law and not in an arbitrary manner.” (page 4757).
In the case of Basava Vs. State of Mysore (9), Faizal Ali J.delivering the judgment of the Supreme Court of India madethe following observation with rega.rd to the retention of prop-erty seized, in “official” custody:
“The object arid scheme of the various provisions of theCode appear to be that where the property which hasbeen the subject-matter of an offence is seized by thepolice it ought not be retained in the custody of theCourt or of the police for any time longer than what isabsolutely necessary. As the seizure of the property bythe police amounts to a clear entrustment of the prop-erty to a Government Servant, the idea is that theproperty should be restored to the original owner afterthe necessity to retain it ceases.”
The observation of Faizal Ali J. is highly relevant speciallyin today's context when there is inadequate space in courthouses for the storage of property that is seized. Propertyseized, decay or at times disappear, from these places of safecustody. Such events could be minimized if the discretionvested in the Magistrate by section 431(1) and (2) is properlyexercised. In my view, in deciding whether property should bekept in official custody, the relevant matters will be, the needto identify the property in evidence, the liability to confisca-
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tion, the likelihood of speedy and natural decay and the ade-quacy of the facilities that are available to keep such property.A Magistrate has to consider these matters and any other rele-vant matters as may be urged by either party and decidewhether it is absolutely necessary to keep such property in"official” custody pending further proceedings. A decision tokeep the property in official custody or to release it to a clai-mant on conditions pending further proceedings may bereviewed by the Magistrate at any later stage on an applicationmade by either party.
Moving from the foregoing analysis of the provisions ofsection 431 (1) and (2), to the facts of this case it is seen thatthe first application made by the Petitioners on 30-07-1990 forthe release of property was refused by the learned Magistratewithout assigning any reason. This order is plainly arbitrary. Itlacks the characteristics of a judicial order. In terms of section431(1) a person entitled :c the possession of property seized bythe police, has a right to make an application for the deliveryof such property to him. Such a person could be refused deliv-ery only on the basis of an order, which specifies the groundsof such refusal. Therefore, I hold that the first order made on30-07-1990 is bad in law.
In the second order made on 01-08-1990 the learned Magis-trate has given two reasons for the refusal of the application.The first reason with regard to the lorry being liable to confis-cation is not canvassed by learned Counsel for the Petitioners,at this stage. Learned Counsel submitted that the second rea-son with regard to cattle does not bear scrutiny. Learned Mag-istrate has stated that if the cattle are released, it would be anencouragement for the commission of the offence again. I haveto note that this reason assumes that the accused had commit-ted the offence, with which they have been charged. Our law isbased on a presumption of innocence which applies in criminalcases. Learned Magistrate had no basis whatever to assumethat the accused had committed the offence and would commit
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it again if an order for delivery is made. In this connection itis relevant to examine the offences that are contained in thecharge sheet, as referred above. The possession of cattle byitself is not an offence, under our law. The offences set out inthe charge sheer relate to the contravention of certain condi-tions imposed by law with regard to the transport of cattle. Anorder for delivery could well have been made subject to thecondition that if the cattle are to be transported, all necessarylegal requirements for such transport be fulfilled. It is thusseen that the reason given by the learned Magistrate is baselessand illegal. Therefore 1 hold that the order made on 01-08-1990 refusing to deliver the cattle to the 2nd Petitioner is badin law.
The next matter relates to the order made on 03-08-1990giving the temporary custody of cattle to the Chairman ofThantirimale Gramodaya Mandalaya. Learned Magistrate hasobserved that the cattle were thus handed over because there isno space in the compound of the Court to keep them. Thisproblem would have not arisen if the learned Magistrate con-sidered the application of section 431(1) in its proper perspec-tive and dealt with the question whether official custody wasabsolutely necessary in the first instance. It is clear from thecharges that the identity of the cattle was not in issue. Thetrial has proceeded without the cattle being brought fromThantirimale to Anuradhapura, even on one day. Cattle werenot liable to confiscation. Hence it is apparent that “official”custody was totally unnecessary in this case. There was norequirement for the learned Magistrate to keep 43 head of cat-tle in the court compound as envisaged by him when the lawempowered him to release them to the person entitled to thepossession pending trial. In any event there is no power wha-tever in the learned Magistrate to hand over the temporarycustody of cattle to a third party. Furthermore, this orderhanding over temporary custody has been made after the 2ndPetitioner made an application for the release of cattle to him.Hence, it was incumbent on the learned Magistrate to hear the
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Petitioners before he made the order on 03-08-1990. It appearsthat this order has been made in chambers upon a minutemade by the Registrar of the Court. In the circumstances Ihold that this order is also bad in law.
The final matter relates to the recovery of money by theChairman of the Thantirimale Gramodaya Mandalaya. It isclear that the learned Magistrate had not authorised theChairman of the Gramodaya Mandalaya to recover themoney. However, in his observations he has stated that suchrecovery was legal and the 2nd Petitioner was bound to paythose charges. The learned Magistrate has failed to identify thelegal basis of such recovery.
I have to note that the custody of cattle was given to theChairman by the learned Magistrate. Therefore the property iscustcdia legis as observed by Faizal Ali J in Basava’s case(supra), at page 1752. In the circumstances any sum of moneywould have been recoverable only upon an order of thelearned Magistrate. As noted above no such order was madeand in any event there is no legal basis for the Petitioner to beordered to pay such sums. The Petitioner has in his affidavitcomplained about the recovery but has not made a claim forreimbursement. In Basava’s case (supra) the Supreme Court ofIndia considered an application for compensation in respect ofproperty that was lost in a police station when the propertywas in custody. The High Court which considered the applica-tion refused it on the basis that the property was not custodialegis since it was not physically produced before court. TheSupreme Court reversed this decision and directed the pay-ment of compensation. As noted above the 2nd Petitioner hasnot made any claim for compensation in respect of the deadcattle or for reimbursement. In the circumstances I am of theview that it is unnecessary to consider this aspect further. Thequestion of liability for compensation and reimbursement andthe person who should bear such liability would have to beexamined in an appropriate application, made to a court offirst instance.
SILVA AND ANOTHER V. OFFICER-IN-CHARGE, POLICE STATION, TAMBUTTEGAMA AND A