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Present: Dalton J.
SUB-INSPECTOR OF POLICE, KURUNEGALARAN MENIKA.638?—P. G. Kurunegala9,673.
Lotteries Ordina nee—Fo rfe i tu re of propcrl y—Prizes of the lottery—Powers of Court—Criminal Proecdure Code, Chapter XL.i
Where a person was convicted of ail offence under the LotteriesOrdinance,- the Court has no power to order the forfeiture of articlesin'the possession of the accused said to be the prospective, prizes inthe lottery.
PPEAL from an k>rder of the Police Magistrate of Kurunegala,confiscating a travelling cart, a race cart, and a bull, whichwere in the possession of one Herathamy, who was convicted ofpublishing proposals for a lottery. They were seized as the pro-spective prizes in the lottery, but no order was made confiscatingthem on the conviction of the accused. Some time later theappellants filed a petition claiming the property as theirs; andafter inquiry the learned Police Magistrate made the order appealedfrom.
H. V. Perera (with Gkelvanayagant), for appellants.
Scholunan G.C., for the Crown.
January 18, 1927. Dalton* J.—
This is an appeal by two persons, Ran Menika and Ukku Banda,against an order of the Police Magistrate confiscating a travellingcart, a race cart, and a bull.
It appears that one Herathamy was convicted on June 4 lastunder section 288 of the Penal Code of publishing proposals for alottery and, under section 4 of the Lotteries Ordinance of 1844.of selling tickets in a lottery. This conviction was confirmed onappeal on July 20. The property, the subject of this appeal, wasfound in Herathamy*s. possession and was said to be the pro-spective prizes in the lottery. It was seized by the Police in thecourse of the proceedings, but no order was made at the conclusioncf the case as contemplated by section 413 (1). It appears,although I can find no definite evidence to that effect, to haveremained in Police custody.
Some time in August the two appellants filed a petition claimingthe property as theirs. A date for inquiry was fixed by .theMagistrate, and evidence was led.
The proceedings in the lower Court appear to have been nxost-infann&l and casual, counsel before me not being able to say underwhat authority the petition was filed* or by what authority the
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Magistrate held any inquiry. I can in loot find no petition. Itis assumed, however, the Magistrate purported to proceed undersome section contained in Chapter XL. oi the Criminal ProcedureCode. At the conclusion of the inquiry he. made the order ofconfiscation appealed against.
The first point raised is that the appellants have no right ofappeal. They are no parties to the case against Herathamy,which is the only “ criminal case or matter ” related to this appli-cation. They have no right of appeal derived from section 338 ofthe Criminal Procedure Code. It is urged, however, that, assumingthe order tof confiscation is made under some,section of ChapterXL., the right of appeal given by section 420 (2) applies. Thatright clearly applies only in case of an order made under section 420.It is admitted that the order appealed from has not beenmade under that section, therefore, the provisions of sub-section (2)do npt apply. The wording of the section is quite clear andexplicit. This point was raised and dealt with in King v. Muck.1
It was then urged for appellants that if they have no right ofappeal, the matter be dealt with in revision as the Court had nopower to make the order of confiscation. I am satisfied that thereis no right of appeal here, but I am equally satisfied that the Courthad up power to make the order complained of. I am disposedtherefore to deal with the matter in revision.
The argument on both sides was , based upon the assumptionthat the order of confiscation was made under some provision ofChapter XL. already referred to, and I am dealing with the matteron that footing. Crown Counsel was able to cite no section of anyother Ordinance (e.g., the Lotteries Ordinance) authorizing theCourt to Confiscate property, the subject matter of lotteries. Itwas admitted that in some cases the Court was especially empoweredby statute to make an order of confiscation, but there was no suchpower, apart from anything contained in Chapter XL. in this case.
Chapter XL. deals with the disposal of property, the subject ofoffences. I have read that chapter veiy carefully and I can findnothing in it which, in my opinion, supports the. contention ofMr. Schokman. This point was raised in De Saram v. Wijesekera-:2There the Magistrate made an order under section 413 confiscatinga pistol. I entirely agree with the opinion to which Ennis J.gave expression there, that section 413 was never intended toauthorize a Court to order a forfeiture in any case where thereis no express penal provision in law authorizing forfeiture on thecommission, of any offence- As he points out, forfeiture is a punish-ment. Apart from section 417, which authorizes destruction pfproperty in certain cases, the provisions of Chapter XL. givepowers to. regulate the possession of property,
11 B<d. 194.- 4 C. H'. rt 403.
Sub-Tiuipec-tor of PoliceKitrunegala,
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There appear to be contradictory decisions in the Indian Coml
Damon J. on this point arising under the equivalent provisions of the IndianCode of Criminal Procedure, but the better authority appears totor of fStee, He that “ disposal does not include confiscation or forfeiture,Kwrunegafa, n3 a provision of adjective law cannot authorize an encroachmentJSm Menika on the legal rights of the owner of the property.
The Magistrate then had no power to make the order of confis-cation under the provisions of Chapter XL. and it must be setaside. In the result the property will remain where it now is, itbeing open to the appellants in appropriate proceedings to recoverthe property if they can show that it is theirs. Apart from theorder of confiscation, they have failed to do so in these proceedings.
Order set aside.
SUB-INSPECTOR OF POLICE, KURUNEGALA v. RAN MENIKA