027-SLLR-SLLR-1999-V-1-STATE-GEM-CORPORATION-AND-OTHERS-v.-JAYASUNDERA.pdf
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State Gem Corporation and Others v. Jayasundera
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STATE GEM CORPORATION AND OTHERS
v.JAYASUNDERA
COURT OF APPEALYAP A. J.
C.A. NO. 1072/88M.C. RAKWANA NO. 38031FEBRUARY 12. 1997OCTOBER 22. 1997NOVEMBER 28. 1997FEBRUARY 13, 1998
Code of Criminal Procedure Act No. 15 of 1975 – S. 425, State Gem CorporationAct – 13 of 1971 – S. 32, 32 (3) (4), 41 – Purchase without a gem dealer'slicence – Seizure of the gem by Police or Authorised Officer of the State GemCorporation – Accused acquitted – Failure of accused to make an application tothe District Court against seizure – Should the gem be forfeited to the State?
Accused-respondent was charged in the Magistrate's court in terms of the StateGem Corporation Act, for purchasing a gem without a gem dealer's licence. Theaccused-respondent was acquitted. As the petitioners claimed that the gem shouldbe forfeited to the State inquiry was held by the Magistrate. The learned Magistratemade order to hand over the gem to the accused-respondent, acting in termsof S. 425 Criminal Procedure Code.
It was contended by the petitioners that as the seizure was affected by the StateGem Corporation (SGC) with the assistance of the Police in terms of S. 32 ofthe SGC Act, as the accused-respondent is an aggrieved person he should havemade an application against the seizure to the District Court, and due to his failureto do so the gem should be forfeited to the State.
Held:
The gem had been seized by the Police and it had not been in the custodyand control of the Gem Corporation, since it had been produced in courtand ordered to be kept in the custody of the Bank.
Per Yapa. J.
"It is unthinkable that the legislature intended to create a situation wherea person is made to defend himself in a criminal case and also file a
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civil action in the District court within 30 days against the seizure of thegem which is a production in a criminal case.*
According to S. 41 of the State Gem Corporation Act provision has beenmade that in the event of a conviction of any person for an offence, underthe Act any article in connection with which the offence was committedshall be forfeited to the State. Therefore, it would follow that when a personis acquitted, the article in question should be released.
Per Yapa, J.
“The accused-respondent was acquitted after trial, since there had beenno proof regard to the sale of the gem or the place where the sale tookplace or the identity of the gem, therefore it is not logical or reasonableto make an order that the gem should be forfeited.*
Cases referred to:
Palasamy Nadar v. Lanka Tree – 51 NLR 520.
Jayawardena v. Silva – 72 NLR 5.
Kothari v. Fernando – 74 NLR 436.
APPLICATION in Revision from the order of the Magistrate's Court of Rakwana.
N. R. M. Daluwatta PC, with B. J. V. Silva and Neville Joseph for petitioner.
D. S. Wijesinghe PC, with Denzil Gunaratne for accused-respondent.
Cur. adv. vult.
December 17, 1998.
HECTOR YAPA, J.
In this case the accused-respondent now deceased, (who has beenduly substituted) was charged in the Magistrate's Court of Rakwana,in terms of the State Gem Corporation Act, No. 13 of 1971 for thecontravention of a by-law framed under the said act, by purchasinga gem without a gem dealer's licence. The purchase of the gem whichwas a cat's eye (Vyrodi) valued at Rs. 8,50,000 had taken place onor about 31. 07. 1982 and the gem was a production in the case.After trial the accused-respondent was acquitted by the Magistrate
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and thereafter an inquiry was held to decide the question whetherthe gem should be returned to the accused-respondent from whosepossession it was taken. This inquiry became necessary since thepetitioners claimed that the gem should be forfeited to the state interms of section 32 (4) of the State Gem Corporation Act, for thefailure of the accused-respondent to make an application to the DistrictCourt against the seizure of the gem by the State Gem Corporation.After the inquiry the learned Magistrate by his order dated 30. 09.88 decided to hand over the gem in question to the accused-respond-ent acting in terms of section 425 of the Code of Criminal ProcedureAct, No. 15 of 1979. It would appear from the order of the Magistratethat the acquittal of the accused-respondent from the charge levelledagainst him had been the basis for his decision to hand over thegem in question to the accused-respondent. In the present application,the petitioners are seeking to set aside the said order of the Magistratereleasing the gem in question to the accused-respondent.
The main submission of the learned counsel for the petitioners wasthat the seizure of the gem in question was affected by the 2ndpetitioner, an authorized officer of the State Gem Corporation withthe assistance of the Police, and the provision that is applicable issection 32 of the State Gem Corporation Act. Therefore, in terms ofsection 32 (3) of the said Act, the accused-respondent as an aggrievedperson should have made an application against the seizure of thegem to the District Court, and due to his failure to do so, the gemin question should be forfeited to the state. It was further argued bycounsel that according to the evidence available, the 2nd petitionersought the assistance of the Police to obtain the gem from theaccused-respondent and the gem was valued, packed in a bag andwas sealed with the Gem Corporation seal, and thereafter on 16. 08.1982 the Police had obtained the gem from the 2nd petitioner to beproduced in court as a production in the case. Therefore, counselsubmitted that the evidence clearly showed that the Police were notdoing an investigation of their own but was merely assisting the StateGem Corporation. In the circumstances, it was contended by counselthat the gem in question was seized and detained by an authorizedOfficer of the Gem Corporation and therefore, the accused-respondentwas required to make an application to the District Court in termsof section 32 (3) of the State Gem Corporation Act as an aggrievedparty. Therefore, counsel submitted that the Magistrate was in errorwhen he made the order to hand over the gem to the accused-
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respondent on the basis that the gem in question was not seized byan officer of the Gem Corporation, but by the Police, and therefore,section 425 of the Code of Criminal Procedure Act would apply andin the circumstances, since the gem was taken from the possessionof the accused-respondent who was acquitted of the charge, the gemshould be returned to him.
On the other hand it was submitted by learned counsel for theaccused-respondent that the seizure of the gem in question was notby an authorized officer of the Gem Corporation but the Police.Learned counsel referred to the following facts to show that the gemwas not seized and detained by an authorized officer of the GemCorporation :
/. The first "B" report in the case is dated 17. 12. 1982 and itis a report made in terms of the provisions of chapter XI ofthe Code of Criminal Procedure Act which relates to theinvestigation of offences by Police officers.
ii. The said "B" report has been filed by Inspector Gunawardeneof the Criminal Investigation Department who was the “theofficer-in-charge of the investigation".
Hi. In the said report the said “officer-in-charge of theinvestigation" has stated that he investigated the complaint ofthe 2nd petitioner made on 16. 08. 82 and summarizes thecomplaint made to him by the said 2nd petitioner.
In that summary the said Inspector describes how the 2ndpetitioner complained to him that he (the 2ndpetitioner) arrested 5 suspects in connection with an offenceof theft of a gem from a land belonging to the State, an offencepunishable under section 367 of the Penal Code. The 2ndpetitioner further complained that the said suspects had soldthe gem to the accused-respondent.
Upon the basis of the aforesaid complaint of the 2nd petitionerto the CID, Inspector Gunawardene states that he conductedan investigation and took the gem into his custody from theaccused-respondent.
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Pending inquiries Inspector Gunawardene has moved court tokeep the said gem in the custody of court.
The minute at the end of the "B” report made by the learnedMagistrate in consequence of the request made by InspectorGunawardene states that this gem is a production in the case.Further the Magistrate has ordered the office to take steps tohave the gem kept in the custody of the Bank.
Learned counsel for the accused-respondent further submitted thatthe gem in question was not in the custody and control of the GemCorporation pending its disposal, but it was with the Police who hadproduced it in court and later the Magistrate had ordered the officeto take steps to have the gem to be kept in the custody of the bank.In the circumstances learned counsel argued that the question of theaccused-respondent making an application to the District Court interms of section 32 (3) of the State Gem Corporation Act does notarise for consideration at all.
It is relevant at this stage to examine section 32 of the State GemCorporation Act. Section 32 of the Act provides as follows:
Section 32 (1) Any authorized officer of the Corporation may,if he has reason to believe that any offence under this Act hasbeen or is committed, seize and detain –
any article in connexion with which the offence is believedto have been or to be committed or which is believedto have been or to be used in or in connexion with thecommission of the offence; and
any book, register, record or other document which in hisopinion will be necessary or useful for the prosecutionof any person for an offence under this Act.
Where any authorized officer of the Corporation seizes anyarticle under subsection (1), such article shall be kept in thecustody and control of the Corporation pending its disposalas hereinafter provided.
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Any person aggrieved by the seizure of any article by anyauthorized officer of the corporation under subsection (1)may, within a period of thirty days after the date of suchseizure, make an application in writing against suchseizure to any District Court within the local limits of whosejurisdiction such seizure was effected.
Where –
no application against the seizure of any article by anyauthorized officer of the Corporation under subsection(1) is made to any District Court under subsection (3)within the period specified in that subsection, sucharticle shall be forfeited to the Republic on theexpiration of that period; or
any application so made is dismissed by a determi-nation of the District Court, such article shall beforfeited to the Republic as from the date of suchdetermination.
According to the above section it is very clear that section 32 (3)to be applicable, the seizure of the article must be by an authorizedofficer of the Gem Corporation and thereafter the article in questionshould be kept in the custody and control of the Corporation. However,in this case it would appear from the available material that the gemin question had been seized by the Police and further, the gem hadnot being in the custody and control of Gem Corporation, since it hadbeen produced in court and ordered to be kept in the custody of thebank. Therefore, it is very clear that the Gem Corporation did nothave the custody and control of the gem. In this situation it seemsto me, as submitted by the counsel for the accused-respondent, thatthe question of making an application to the District Court by theaccused-respondent in terms of section 32 (3) of the State GemCorporation Act would not arise.
Further it is pertinent to consider that if the argument of learnedcounsel for the petitioner, that the accused-respondent should havemade an application to the District Court in terms of section 32 (3)
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of the said Act is accepted, it would give rise to a situation wherethere would be two actions, one filed in the Magistrate's Court andthe other in the District Court in respect of the same matter and furtherit may become necessary to have the gem in question produced inboth courts as a production. In addition there is also the possibilityof the Magistrate's Court and the District Court making two conflictingdecisions with regard to the gem in question. Therefore, in my viewit is unthinkable that the legislature intended to create a situationwhere a person is made to defend himself in a criminal case andalso file a Civil Action in the District Court within 30 days againstthe seizure of the gem which is a production in a criminal case.
In this case it is to be observed that the question has been raisedbefore the Magistrate as to whether the Magistrate's Court even thoughit purported to acquit the accused-respondent in respect of the chargepreferred against him, has the jurisdiction to act under section 425of the Code of Criminal Procedure Act to make an order releasingthe gem to the accused-respondent. The reason being that the StateGem Corporation Act is a special Act which creates a new jurisdiction,new procedure and a new remedy and therefore, the special procedureprovided for the restoration of property has to be made in terms ofthe provisions of the State Gem Corporation Act and not under theCode of Criminal Procedure Act. In support of this contention counselhad referred to the case of Palasamy Nadar v. Lanka Tred'KJayawardena v. SilvaP and Kothari v. Fernandd3) decided under theCustoms Ordinance, where it had been held that when goods areforfeited and seized in terms of section 125 of the Customs Ordinance,the property in the goods will be lost to their owner unless validityof the seizure is challenged by an action instituted in a competentcourt within a strictly limited period. However, in the present case sinceI am of the view that the question of making an application to theDistrict Court by the accused-respondent in terms of section 32 (3)of the State Gem Corporation Act would not arise, these caseswill have no application to the facts in this case and are clearlydistinguishable.
It may be necessary to consider the claim of the petitioners thatthe gem which has been returned to the accused-respondent by theMagistrate should be forfeited to the state, since the accused-
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respondent failed to file an application in the District Court within30 days of the seizure of the gem, in the light of the provision madein section 41 of the State Gem Corporation Act. The section 41provides as follows:
A Magistrate's Court may, on the conviction of any person foran offence under this Act, make order that any article in connectionwith which the offence was committed or which was used in orin connection with the commission of the offence shall be forfeitedto the Republic.
According to section 41 of the State Gem Corporation Act clearprovision has been made that in the event of a conviction of any personfor an offence under the Act, any article in connexion with which theoffence was committed shall be forfeited to the Republic. Therefore,it would follow that when a person is acquitted of the charge as inthis case, the article in question should be released. In the presentcase if the argument put forward by counsel for the petitioners isaccepted, whether the accused-respondent is acquitted or convicted,the gem in question should be forfeited. Therefore, I am unable toagree with this submission. Further in the present case after a fullinvestigation the Police filed action against the accused-respondentand after trial he was acquitted. As stated by the Magistrate theaccused-respondent was acquitted since there had been no proofregard to the sale of the gem or the place where the sale took placeand the identity of the gem. Therefore, clearly the accused-respondenthas not committed any offence regard to the gem in question. In otherwords he is an innocent person in respect of the allegation madeagainst him relating to the gem. In the circumstances it is not logicalnor reasonable to make an order that the gem in question shouldbe forfeited. Therefore, I see no error in the order of the Magistratereleasing the gem to the accused-respondent, since it is a case inwhich the Magistrate could have acted under section 425 of the Codeof Criminal Procedure Act.
For the above reasons, I would uphold the Magistrate's order forthe restoration of the gem in question to the accused-respondent anddismiss the application of the petitioners without costs.
Application dismissed.