(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
Umma Habeeba v. OIC, Dehiattakandiya <5 Other
(Gunawardana, J.)
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
Sri Lanka Law Reports
[1999} 3 Sri LR.
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
Umma Habeeba v. OIC, Dehiatlakandiya & Other
(Gurtawardana, J.)
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.