UMMA HABEEBA v. OIC, DEHITATTAKANDIYA & OTHERS

011-SLLR-SLLR-1999-V-3-UMMA-HABEEBA-v.-OIC-DEHITATTAKANDIYA-OTHERS.pdf


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Umma Habeeba v. QIC, Dehiattakandiya & Other
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UMMA HABEEBA
v.OfC, DEHIATTAKANDIYA & OTHER
COURT OF APPEALYAPA, J.,
GUNAWARDANA, J. .
C.A. (PHC) NO, 73/96.
HC/REV/AMPARA NO. 31/95.
M.C. AMPARA NO. 2201/D.
MARCH 05, 1998.
APRIL 02, 1998.
Animals Act s. 3A – Transportation of cattle – Confiscation of vehicle – Useof vehicle without knowledge of owner – Discretion vested in the Magistrate -Evidence Ordinance, S. 3.
The lorry in question had been used lor illegally transporting nine heads ofcattle and four accused were found guilty on their own pleas.
The Driver of the lorry was the husband of the owner of the vehicle. TheCourt was of the view, that the fact that the Driver was the husband, itself provedknowledge on the part of the appellant (owner) that the offence in question wascommitted with the knowledge of the appellant.
On Appeal –
Held:
The facts from which the learned Magistrate/High Court Judge had con-cluded that the appellant had knowledge had, at best, some remoteconjectural probative force, if any. Those facts have no clear bearing onthe disputed question of knowledge or lack of it on the part of the appellantand do not enable one to draw a firm or decided inference in regardthereto – one way or the other.
What circumstances are sufficient to prove a fact will not admit of easydefinition or generalisation, one has to use ones own judgment andexperience of human conduct and cannot be found by rules except byones own discretion. . . . the inference drawn presuppose that everythingdone or rather every offence committed by the husband must be necessarily
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known to the wife, that is a rather naive assumption for the inferencesthat the courts draw must be founded on the experience of common life'.
What s. 3A means is that the vehicle shall necessarily be confiscated ifthe owner fails to prove that the offence was commited without theknowledge but not otherwise. If, as contended, the Magistrate was givena discretion to consider whether to confiscate or not – the Magistratecould confiscate even when the offence was committed without the knowl-edge of the owner taking into consideration other damnable circumstancesapart from knowledge or lack of it on the part of the owner.
Per Gunawardana, J.
“One cannot let ones prejudices influence the judgment of the case, theymay be sinners; perhaps of that there is no mistaking – of course accordingto my thinking – but a Judge has to recompense even evil with justice.'
APPEAL from the the Order of the Provincial High Court of Ampara.
Case referred to:
Hornal v. Newberger Products Ltd. – 1957 1 QB 247.
Faiz Musthapha, PC with Sanjeewa Jayawardena for appellant-petitioner-appellant.
J. C. Jayasuriya, SSC for Attorney-General.
Cur. adv. vult.
July 15, 1999.
GUNAWARDANA, J.
This is an appeal against an order dated 30.05.1996 made by theHigh Court of Ampara upholding the order of the learned Magistratemade on 18.08.1995 confiscating the lorry belonging to the appellantunder section 3A of the Animals Act.
It is to be observed that the lorry in question numbered 41-2084had been used on 26.05.1995 for illegally transporting nine head ofcattle and four accused were found guilty, on their own pleas, in that
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regard under the relevant section of the Animals Act, ie section 3A,which reads thus: "Where any person is convicted of an offence underthis part or any regulations made thereunder any vehicle used in thecommission of such offence shall in addition to any other punishmentprescribed for such offence be liable, by order of the convictingMagistrate to confiscation.
Provided, however, that in any case where the owner of the vehicleis a third party no order of confiscation shall be'made if he provesto the satisfaction of the Court that he has taken all precautions toprevent the use of such vehicle or that the vehicle had been usedwithout his knowledge for the commission of the offence.
Two points had been urged in support of the appeal:
That the appellant had no knowledge, in advance, of the fact thatthe lorry was used on the relevant date, ie on 26.05.1995 in thecommission of that particular offence by transporting the nine headof cattle;
That the expression that occurs in section 3A of the Animals Act(reproduced above) ie "liable to confiscation" does not mean that theMagistrate has, of necessity, to confiscate the vehicle used for thecommission of the offence in transporting the animals but vests adiscretion in the Magistrate to consider the extenuating circumstances,it is to be observed, of which there is none; nor had the learnedPresident's Counsel referred to any.
To consider the above two points in order: the learned Senior StateCounsel, who appeared for the 1st and 2nd respondents, had arguedthat it's no good closing our eyes to the facts and that it was a pointworth mentioning that the driver of the vehicle at the time of thecommission of the said offence was none other than the appellant'shusband, although the appellant in her evidence in chief had soughtto make somewhat of pretence that the driver was a stranger to heror an outsider whom she (the appellant) had engaged for a wageor pay. To quote her own words:
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"®oe& SiQ sxjg BOetoO Gcaaewi oOg BCgri Sea) o® Swaxs ©0 g®8
§0®M) …"
Both the learned Magistrate and the High Court Judge seem tohave found it difficult to believe or rejected the appellant's evidenceto the effect that she did not know that the vehicle was used forthe commission of the particular offence in question, substantially, ifnot wholly, for the following three reasons:
That the appellant concealed the fact that the driver of the lorrywas her own husband till that fact was elicited under cross-examinationor that in any event, she did not state in her evidence in chief itselfthat the driver was none other than her own husband. The learnedMagistrate, in particular, was decidedly of the view that the fact thatdriver was the husband that itself proved knowledge on the part ofthe appellant that the offence in question was committed with theknowledge of the appellant. To quote the relevant excerpt from theorder of the learned Magistrate:
"©©xxs) g$8)@ g0t@C3) 0oec5t BogckS @g» ©Oefloa) m® o®@ gOSaaOcaxiqa£Kg®Sefi os»O0 <B00a> gSroao SO® ©£®) o®@ o®)Oc3 gqx; octo) oS SciSxsfiO®0 go®g&"
The fact that the appellant had admittedly permitted or had notprevented the driver (who was involved in the commission of therelevant offence) from continuing to drive, even after the relevantconviction, also showed that the offence was committed with theknowledge of the appellant;
That as the 1 st accused in the case had, ie the husband of theappellant had been convicted by the Magistrate's Court (Panwila) ofa similar or identical offence, in case No. 75404, it was not possibleto believe that on this occasion too, that is, on the present occasionrelevant to the case under consideration, the offence of transportingcattle was committed without the knowledge of the appellant.
Assuming for the purpose of argument the fact that the appellanthad sought to conceal, in the course of her evidence in chief, that
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the driver of the vehicle at the time of the detection of the relevantoffence was her husband, yet such an attempt at concealment, northe fact that the driver was, in fact, her husband nor the fact thatshe knew (assuming that she knew) that the husband had beenconvicted of a similar charge in the Magistrate's Court, of Panwila northe admission by the appellant that her husband was still, that is,even after the conviction in the Magistrate's Court of Ampara, entrustedwith the lorry to drive it, in isolation, that is, each one of the abovefacts taken individually, or cumulatively will make the appellant'sevidence to the effect that the present offence (detected atDehiattakandiya) was committed without her knowledge less probable,than the fact that it was committed with her knowledge or even equallyprobable because the probative force of her (appellant's) evidencewould make it more probable than not that she had no knowledge,as explained below.
Proviso to section 3A of the Animals Act states that the vehicleused for the commission of an offence under the Animals Act shallnot be confiscated where the owner (being a third party) "proves tothe satisfaction of the Court" that the vehicle has been used for thecommission of the offence without his knowledge. (The other circum-stance or situation in which no order of confiscation will be made isnot relevant in this instance as it had not been called in aid, as such,by the appellant in these proceedings).
The appellant had, in her evidence in chief, referred to the personwho happened to be driving the vehicle at the time of detection ofthe offence, as an "outsider" who, in fact, as stated above, was herown husband. The appellant is a Muslim lady and it appears that shehad given evidence in Sinhala in which language she wouldn't havebeen all that articulate. Inaccuracy or imprecision in evidence maywell arise out of incompetence of a witness to state a fact preciselyor completely. By the use of the terms "outsider", it may well be, thatshe sought to emphasize that she was not personally or directlyinvolved in the commission of the offence of transporting; or it maywell be that she had echoed the words of her own counsel who ledher evidence in-chief as so often happens or merely answered in theaffirmative a question put to her without giving much thought or without
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aiming at clarity or precision in expresion. The appellant's evidencehad not been recorded in question and answer form. One cannot lightlyignore, as both the learned Magistrate and the High Court Judge haddone, the fact the appellant had without any demur or hesitation, statedunder cross-examination in the most explicit terms that the driver washer husband and he was continuing to drive the vehicle even afterthe relevant conviction. So that, viewing the matter from a practicalangle, it couldn't seriously or justifiably be said that the appellant hassought falsely to represent to Court that the driver was not herhusband.
Even assuming for the sake of argument that the appellant: (a)had sought to conceal the fact that the driver, was her own husband
had knowledge of the fact of the commission by using the samelorry of an identical offence by her husband at Panwila (c) hadadmittedly permitted the husband to drive or acquiesced in the husbandcontinuing to use or drive the lorry would neither prove nor disprove(on a balance or otherwise) the fact that the offence was committedwith the knowledge of the appellant. The facts designated (a), (b),
above are not, by their very nature, the sort of facts which ofthemselves exclude or imply distinctly the existence of the fact soughtto be proved – the fact sought to be proved by means of these factsbeing that the appellant had knowledge of the commission of thisparticular offence of which her husband and three others were con-victed in the Magistrate's Court of Ampara; for that matter, the saidfacts particularized or designated above are, so to say, natural factsin that they neither imply nor exclude the fact sought to be proved- the fact sought to be proved being, as stated above, that theappellant had knowledge. Both the learned Magistrate and the HighCourt Judge, had clearly drawn the inference that the said factsshowed that the relevant offence was committed with the knowledgeof the appellant. It is true that the burden was on the appellant toprove that the offence was committed without her knowledge, but thefacts enumerated above from which both the learned Magistrate andthe High Court Judge had concluded that the appellant had knowledgehad, at best, some remote conjectural probative force, if any. Thosefacts may, perhaps, make the evidence of the appellant to the effectthat the offence was committed without her knowledge somewhat
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doubful or suspect but they do not possess the force or probativevalue even cumulatively, of making the fact that the offence wascommitted without knowledge of the appellant less probable than thatit was committed with the appellant's knowledge for those facts haveno clear bearing on the disputed question of knowledge or lack ofit on the part of the appellant and do not enable one to draw a firmor decided inference in regard thereto – one way or the other. Aswould appear from the sequel each one of these facts relied on bythe Judges in the Courts below does not (even 'when amalgamated)exclude lack of knowledge on the part of the appellant although thosefacts enumerated above (and relied on by the Judges in the Courtsbelow to attribute knowledge to the appellant) may, perhaps, leavethe matter in some doubt although the probability of the veracity ofthe appellant's evidence that she had no knowledge does not dis-appear in consequence thereof. Although the burden of proving thatthe owner of the vehicle had no knowledge is on appellant (she beingthe owner) yet that question, ie whether or not she had knowledge,needless to say, has to be decided on the totality of the evidenceavailable to Court. As stated above, the Courts below had taken theview that because the driver of the vehicle at the time of detectionof the offence was the husband of the appellant, the particular offencein question ought to be held to have been committed with knowledgeof the appellant. The Courts below had also taken the view that thefact that the appellant's husband had been convicted of a similaroffence in case No. 75404 in the Magistrate's Court of Panwilastrengthened belief that this offence too was committed with theappellant's knowledge although that reasoning is too far-fetched: solelyfrom the fact that the appellant was the wife of the driver the inferencehad been drawn that the offence of which the husband had beenconvicted in the Panwila Magistrate's Court had been committed withthe knowledge of the appellant. As such, that is because the learnedMagistrate had inferred that the offence of which the husbandhad been convicted in the Magistrate's Court of Panwila had beencommitted with the appellant's knowledge, merely by virtue of the factthat the appellant was the wife, it had been further inferred therefromthat the relevant offence, which was of a similar nature, too had beencommitted with the knowledge of the appellant – although the learnedMagistrate had preferred to use confusing language to plain expres-
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sions to say so. To quote from the order of the learned Magistrate:"oi@d5®'@ SiSai §£Oosi ©0a>®£ oaJS® ®osiGJ{g)Gi qSoOsaocJ
goo 75404 £.0® o§oSg z o®@ l 0® ScSSoOc 0Oq,oOc S gas. I 0® 0eSSoc5to®@ g®Q®O30acxS c60)®gOi0ca) f&Sea o@® dOgate. SO® gas o®)£i® SScb ooSSSocSeS® 8§eaS® go®gQ. o@® odtsg So®®® cs®o) Si§o®^ … <9® msSaBOcraS)gg^ig®SS oesx50 o®® 00z SS§®> cxfi oOo goxas S(90X3Sc3tS0ooS oox5 80S®xxsS ®exsS.'
Of one thing one can be sure, if of no other, that is, that the learnedMagistrate whilst drawing the inference that the offence which wasthe subject of the charge in the earlier case No. 75404 had beencommitted with the appellant's knowledge, since appellant was thewife, had gone further afield to impute knowledge to the appellantof this offence as well for no other or better reason than that she(the appellant) had knowledge of the commission of the previousoffence of which the appellant's husband had been convicted. This,
I suppose, is the sense one can, so to say, divine from the aboveexcerpt of the order. Although at the inquiry in which the appellanthad given evidence a certified copy of the proceedings of the saidcase No. 75404 had been marked as P1 – a copy of it had not beenfiled of record. As such, at our instance, the learned State Counsel,on behalf of the Attorney-General had called for the record in thatcase and as we were intent on getting to the bottom of the matter,we examined the record (marked P1) in case No. 75404 (MC Panwila)and found that although two accused, one of whom was the husbandof the appellant had been convicted on his own plea for transportinganimals in the same lorry, – yet, strangely enough, for some reasonor other, it had not been followed up by noticing the owner to showcause against confiscation. So it is within the realm of probability thatshe did not know (as she had stated giving evidence in the AmparaMagistrate's Court) of the conviction in the Panwila Magistrate's Courtnor of the offence relevant to that conviction most probably becausethe owner (appellant) was not noticed to show cause against con-fiscation of the lorry. This aspect had not received any considerationin the Courts below. Had she been noticed, in case No. 75404(MC Panwila) and if she had received the notice, there was no questionof her denying knowledge (subsequent to the conviction) of the previous
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offence, committed on 20.05.1995 of which the husband had beenconvicted in case No. 75404 (MC Panwila). It is worthy of mentionthat this offence, ie the offence of which the husband was convictedin the Ampara Magistrate's Court, was committed on the very nextday, viz 21.05.1995. There is no essential inconsistency between anyof those facts made use of by the Courts below to come to a findingthat the relevant offence was committed with the knowledge of theappellant with the fact that the offence in question was committedwithout the knowledge of the appellant. There is' an equal possibilitythat the offence in question was committed with knowledge of theappellant as without her knowledge because both the said inferencescould legitimately be drawn from the facts relied upon in the Courtsbelow to impute knowledge to the appellant. What circumstancesare sufficient to "prove" a fact will not admit of easy definition orgeneralization. One has to use one's own judgment and experienceof human conduct and cannot be bound by rules except by one'sown discretion. The inferences drawn by the learned Magistrate andthe learned High Court Judge more or less, presuppose that everythingdone or rather every offence committed by the husband must benecessarily known to the wife. That is a rather naive assumption forthe inferences that the Courts draw must be "founded on the expe-rience of common life". Any common imagination can adequatelyconceive that the husband in question is so little versed in therefinements of civilized life as to take the wife too much into con-fidence. The Courts below had also concluded that the fact that theappellant had permitted the husband to drive the lorry even after theconviction of the offence of transporting animals by using the lorryof which the appellant was the owner, inferentially proved that theoffence in question was committed with her knowledge. But, in drawingthat inference the Courts below had overlooked the significant factthat the driver was the appellant's husband. The owner (appellant)could not have dealt with the husband in the same way as she wouldhave dealt with somebody else or in like manner get rid of or preventthe husband from driving the lorry. If the appellant had done so, thatis, if the appellant had sought to take the lorry out of the hands ofher husband, that would have been tantamount to something like anact of matrimonial treason. The Court had to take a realistic view,and not judge like visitors from the outer space. It is probable that
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the appellant couldn't prevent the husband from continuing to driveas she was powerless to do so and not because the offence wascommitted with her knowledge. If one can accuse the appellant ofanything it is that she had accepted the inevitable with resignationand unconcern. One must not be content to reach decisions by lookingat the mere surface of things. When there are various possibilitiesone must be wary of and cautious in accepting one possibility as beingmore probable than the other. Against such a factual background itis not quite logical and even unfair to draw the inference, from thefact of the husband continuing to drive the vehicle even after theconviction, that the relevant offence was committed with the appellant'sknowledge for it is common knowledge that in such a society as thatin which the appellant lived women went about their household choresas required of them and no woman ever braved a husband withoutin the long run suffering for it and it is not unreasonable to assumethat his was the authority and his the business head.
To balance the evidence on either side: the facts relied on in theCourts below, to impute knowledge of the commission of the offenceare not such as to make the fact that the offence was committedwith the knowledge of the appellant more probable than the fact thatthe offence was committed without her knowledge because, to saythe least, all those facts, as explained above, admit of the interpretationthat there was an equal possibility that the offence was committedwithout the knowledge as with knowledge. Of course, notwithstandingall this, one may say that the appellant may well have known of thecommission of the offence. But, that is a mere hypothesis which doesnot have the support of the evidence. If may arguably be said thatthere is a doubt or a feeling of uncertainty as to the truth of theappellant's version that the offence was committed without her knowl-edge. But, if the truth must be told, in my own mind, there is evena greater doubt as to whether it was committed with her knowledge.Of the two versions, viz that the offence was committed with theknowledge and without knowledge, the latter version is more probableeven though there may be, perhaps, a doubt in regard to the truthof it. In general, of the two versions of events, one version can beaccepted as the more probable version even when there is a doubtin regard to the very version that is upheld as the more probable
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version for if there is not even a doubt in regard to it, that versionmust be held to be proved beyond a doubt which high degree of proofis not cast, by the law, on the appellant in this case. In Hornal v.Neuberger Products Ltd™ the plaintiff claimed damages for breachof contract and in the alternative fraud. It was alleged that an agentof the defendant company had deliberately made a false statementabout goods which were sold to the plaintiff. The claim of fraudinevitably required the plaintiff to prove a criminal offence. The trialJudge held that he was saisfied on the balance of probabilities thatthe statement was made but was not satisfied beyond reasonabledoubt and so held with the plaintiff. The Court of Appeal of Englandheld that the trial Judge was right to find the plaintiff's claim provedbecause the action was a civil case and so the civil standard of proofapplied. In this matter the burden on the appellant is the samestandard. There is no gainsaying that there is no inherent improbability,as such, in the appellant's version, supported as it is by two circum-stances which the Courts below had overlooked – (in the absenceof which two circumstances the two versions, viz knowledge and lackof it would perhaps, have been evenly balanced and so that neither• could have been held to be "proved") – the two circumstances being:(i) that the offence was committed or detected at some considerabledistance from the place where the appellant was resident or, to putit more accurately, the appellant physically was at the relevant timewhen the offence was committed; (ii) that the driver, i.e. the husbandof the appellant visited the appellant or came home only once a month.It is to be observed that the above two facts deposed to by theappellant are not contradicted although one must be conscious of thefact that the nature of those facts is such that it would be almostpractically impossible for the prosecution to disprove them for suchfacts are virtually although, perhaps, not exclusively within personalknowledge of the appellant. In other words as the fact viz that theappellant was the wife of the driver who had used the lorry to committhe relevant offence, could be interpreted either way and did notunerringly point to knowledge on the part of appellant, or to the factthat it was more probable than not that the offence was committedwith the appellant's knowledge there is no other decisive circumstanceor, for that matter, any circumstance from which it can be inferredthat the offence was committed with the knowledge of the appellant
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notwithstanding the fact that there was admittedly no personal par-ticipation on the part of the appellant since the offence was committedat a considerable distance from where the appellant physically wasat the time of detection or of the commission of the offence althoughthere is no concrete evidence regarding the distance between the twoplaces. A Mr. Weller would have even suggested that "alleybi" wasavailable to the appellant in this case. "Never mind the character andstick to the "alleybi" wherever he is going to be tried … a alleybiis the thing to get him off. We got Tom Vildespark off that eremanslaughter when all the big wigs to a man said as nothing couldn'tsave him". It is not without interest to note that this profound legalopinion was given by Mr. Weller to the respondent in an action forbreach of promise of marriage – totally disregarding the assurancesand arguments tending to show that in such an action such a defencewouldn't be all that admissible, I have said all this to show that ineveryday sort of matter like this, as to whether wife (the appellant)knew, in advance, of the commission of the particular offence, robustcommonsense demands that some degree of weight should have beengiven to the fact that thare was no personal participation which hadnot been done in the Courts below. The appellant's residence wasat a place called Madawela. It could be perhaps, inferred from thetenor of the evidence that the offence was committed or rather it wasdetected at Wattegama. To quote from appellant’s evidence – therebeing no other evidence touching the point:

(Reading between the lines it does not require much imagination tosee that the appellant is somewhat of an ignorant lady who hadperhaps much more to put up with from her husband than one wouldsuspect.)
It may arguably be said that the evidence of the appellant thatshe did not know that the relevant offence was committed withouther knowledge is weak. But, even assuming that it is so, such weakevidence must prevail when, as in this cqse, no other evidence is
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available to counterbalance it. Section 3 of the Evidence Ordinancecontemplates or provides for two conditions of mind with regard tomatter of proof of a fact: first, that in which a man feels absolutelycertain of a fact, that is, believe it to exist; and secondly, that in whichthough he may not feel absolutely certain of a fact yet he thinks itso extremely probable that a prudent man would under the circum-stances act on the assumption or basis of its existence.
In this case before an order of confiscation can be made the Courthas to be satisfied not merely that the appellant had a general ideaor that she vaguely knew that the lorry was usually used for thepurpose of transporting animals illegally but that the particular offenceon the relevant date, i.e. on 26.05.1995 was committed with herknowledge. It is to be noticed that section 3A of the Animals Act whichpenalised the owner speaks of "the offence" thereby referring to orparticularizing the specific offence in question which had formed thebasis or subject of the offence of which the accused had beenconvicted. The inference that the wife had knowledge, solely by virtueof the fact that she was the wife, would have been justified or couldhave been more easily drawn if the law had authorized the confiscationof the vehicle if the owner had known that the vehicle was generallyor usually used for transpport of animals although the owner had noknowledge of the particular offence or for that matter, of any particularoccasion on which the vehicle had been so used for the commissionof an offence under the Animals Act.
If the lorry could be confiscated under secction 3A of the AnimalsAct when the owner merely knew that the general or usual purposeor use to which the lorry was put was the transport of animals, thenit would be possible to confiscate this vehicle even when there wasno conviction of any person of an offence, under any section of theAnimal Acts. But, section 3A makes a conviction an indispensablecondition – precedent to a confiscation.
As a final note I wish to say this: that the point raised by thelearned President's Counsel for the appellant, Mr. Musthapha, thatthe expression used in section 3A of the Animals Act, viz “the vehicleused in the commission of the offence shall … be liable to
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confiscation …" did not have the compulsory meaning that the vehicleshould be confiscated even when the owner of the vehicle failed to"prove" that the offence was committed without his knowledge wasso raised, for the sake of appearances, not because it had any value;perhaps, the learned President's Counsel coudnt help himself. In thiscontext the expression: "shall be liable to confiscation", has to beinterpreted in an imperative sense and the word "shall" has theinvariable significance of excluding the idea of discretion although thatterm, viz "shall" in certain contexts may by construed as being merelypermissive. What the said section 3A means is this : that the vehicleshall necessarily be confiscated if the owner fails to prove that theoffence was committed without the knowledge but not otherwise. If,as contended by the learned President's Counsel for the appellant,the Magistrate was given a discretion to consider whether to confiscateor not – the Magistrate could confiscate even when the offence wascommitted without the knowledge of the owner taking into considerationother damnable circumstances apart from the knowledge or lack ofit on the part of the owner. The arguments too can recoil on thepropounder. That argument was an invitation to confiscate for thatwould have been the necessary and inexorable consequence of theacceptance of that argument. In this case, if I had a discretion, I wouldnot have been loath to confiscate notwithstanding the fact that it ismore probable that this particular offence was committed without theknowledge of the appellant (owner) – for the lorry seems to beconsistently used for the purpose of illegally transporting animals. Insection 3A the word “liable" cannot be considered in isolation for itsmeaning is conditioned by the term “shall". The term "liable", I daresay, taken in isolation may connote future possible or probable happeningwhich may not actually occur and suggests an occurrence within therange of possibility. But, the above point raised by the learned Presi-dent's Counsel is only of academic interest in the context of the orderI decide to make that on the totality of the evidence led at the inquirybefore the learned Magistrate it ought to have been held, in the least,that it was more probable than not that the relevant offence wascommitted without the appellant's knowledge.
One cannot let one's prejudices influence the judgment of the case.They may be sinners; perhaps, of that there is no mistaking – of
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course, according to my thinking. But, a Judge has to recompenseeven evil with justice. The appeal is allowed and the order made bythe High Court on 30.05.1996 upholding the learned Magistrate's orderdated 18.08.1995 is hereby vacated. The lorry numbered 41-2084 isordered to be returned to the owner. Justice, according to law,demands no less.
I wish to add this by way of a postcript: the law with respect tothe matter of confiscating the vehicle used in the commission of anoffence under the Animals Act is in a loose and unsatisfactory state,allowing offenders to cut loose, and therefore needs to be tightenedup in two ways: by (a) making knowledge or lack of it immaterial whenthe person convicted of an offence under the Animals Act and theowner are spouses with appropriate exceptions; (b) making the con-fiscation of the vehicle mandatory upon the third conviction irrespectiveof whether the owner had knowledge or not of these particular of-fences; or else owner could be noticed to appear in Court and apprisedof each conviction as it is entered. As at present the law is so laxas to encourage invention of ways and ways of evading the law withoutinfringing the letter of it. A husband, for instance, can buy a vehicleand register in the name of his wife who is abroad which will makeknowledge on the part of the registered owner impossible of proof.
HECTOR YAPA, J. – I agree.
Appeal allowed.