114-NLR-NLR-V-49-SIRIMALA-Appellant-and-BANDARANAIKE-Range-Forest-Officer.pdf
HOWARD C. J—Sirimala v. Bandaranaike.
383
1948Present: Howard C.J.SIRIMALA, Appellant, and BANDARANAIKE (RangeForest Officer), Respondent.
S. C. 211—M. C. Kurunegala, 33,005.
Fauna and Flora. Protection Ordinance—Charge of possessing elephant-—Acquittalof accused—Order of forfeiture of elephant irregular—S ection 22.
Where a person charged under section 22 of the Fauna and Flora ProtectionOrdinance with unlawful possession of an elephant is acquitted, the Courthas no power to order the forfeiture of the elephant.
^/^PPEAL from a judgment of the Magistrate, Kurunegala.
O.E. Chitty, with A. H. E. Molamure, for the accused, appellant.Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
April 22, 1948. Howard C.J.—
In this case the appellant was charged with being in unlawfulpossession of a tusker under section 22 of the Fauna and Flora1 Maxwell—Interpretation of Statutes, p. 377 (9th Edn.).
384HOWARD C. J.—Sirimala v. Bandaranaike.
Protection Ordinance (Cap. 325). Section 22 of tins Ordinance
is -worded as follows :—
“ Any person who is in unlawful possession of a tusker or anelephant shall be guilty of an offence and shall on conviction beliable to a fine not exceeding five hundred rupees or to imprison-ment of either description for a term which may extend to six monthsor to both such fine and imprisonment ; and the court may on theconviction of any such person make order for the disposal ofthe tusker or elephant in respect of which the offence wascommitted, having regard to the rights of any other person whomay appear to the court to be lawfully entitled to the possessionof such tusker or elephant. ”
The Magistrate acquitted the appellant but subsequently made anorder forfeiting the elephant and giving it to the Crown. In my opinionthe Magistrate had no power to make the order of forfeiture.Such an order could only be made if the appellant had been convicted.
Now, Mr. Boyd Jayasuriya on behalf of the Attorney-Generalcontends, first of all, that the acquittal by the Magistrate was wrongin law and that I should set aside that acquittal and convict theappellant. The Attorney-General did not appeal against this acquittalnor is there any formal application in revision. In these circum-stances I cannot accede to this request. Alternatively, Mr. Jayasuriyasays that I should invoke in aid the provisions of section 413 of theCriminal Procedure Code and make an order for the disposal of theelephant under that section. He has also referred me to the case decidedby Wijeyewardene J., Joseph v. The Attorney-General1. I do not con-sider that that case has any application to the facts of the presentcase in view of the clear words of section 22 of Chapter 325 that an orderfor the disposal of the tusker or elephant can only come into operationon the conviction of the accused.
In these circumstances I am of opinion that the order of forfeituremust be set aside.
Mr. Jayasuriya has invited my attention to the terrible consequencesof this order of mine inasmuch as it leads to somebody who has nottitle whatsoever getting away with a wild elephant. All I can sayis that I have no desire to be a party to such a heinous crime and evenshare the consequences of being a party with the Crown Proctorof Kurunegala and those responsible for the prosecution in not realisingthe mistake they were committing in not appealing against the acquittalof the accused. But I should like to say that the consequences do notappear to be so terrible when section 16 (2) of Chapter 325 is taken intoaccount. Section 18 (2) states that subject to the provisions of sub-section (1) every tusker or elephant which is killed or captured shall be
the property of the Crown. So if this really is in fact a tusker, the Crownis entitled to bring a civil action to recover the tusker from the personwhom the Crown suggests is in unlawful possession of it.
Order set aside:
(1946) 47 N.L. R. 446.