Vehicle owners must prove lack of knowledge and precautions to avoid confiscation under the Excise Ordinance.

JUDGMENT

The Registered Owner -Claimant- Petitioner-Appellant (hereinafter referred to as the “Appellant”) instituted this appeal against the order of the Learned High Court Judge of the Provincial High Court of Sabaragamuwa Province holden in Ratnapura in case No. 21/2019 dated 28.10.2021 where the Learned High Court Judge affirmed the order of the Learned Magistrate of Kalawana bearing No. 15071 dated 06.02.2019 where the Learned Magistrate has confiscated a threeweeler bearing No. SG AAK 2006 consequent to an inquiry.

The accused, Kalaha Gamage Priyantha Nandanapala, was found guilty of the offence of transporting illicit liquor in violation of Section 47(1) of the Excise Ordinance on his own plea. Following the conviction, the Learned Magistrate proceeded to conduct an inquiry under Section 54(2) of the Excise Ordinance in respect of the vehicle that had been seized for its involvement in the unlawful transportation of illicit liquor, in contravention of the Excise Ordinance.

The Appellant, in their capacity as the registered owner of the vehicle, submitted evidence seeking its release pursuant to Section 54(2) of the Excise Ordinance. In response, the Learned Magistrate, exercising authority under Section 40(1)(a) of the Forest Ordinance, granted the owner an opportunity to show cause as to why the three-wheeler should not be subject to confiscation.

The Learned Magistrate held that, in circumstances of this nature, it is incumbent upon the owner of the vehicle to satisfy the Court that all reasonable precautions were taken to prevent its use in the commission of the offence. Upon consideration of the evidence presented, the Magistrate ordered the confiscation of the vehicle bearing registration number SG AAK 2006 on 06.02.2019.

Aggrieved by the aforementioned order, the Appellant proceeded to file a revision application before the High Court of Ratnapura. It is noteworthy that the vehicle in question was found transporting illicit drugs, constituting an offence under the Excise Ordinance. In this context, it is pertinent to refer to Section 54(2) of the Excise Ordinance, which provides the legal framework for the confiscation of vehicles involved in such offences.

“54(2) Any excisable article lawfully imported, transported, manufactured, had in possession, or sold along with, or in addition to any excisable article liable to confiscation under this section, and the receptacles, packages, and coverings in which any such excisable article, materials, still, utensil, implement, or apparatus as aforesaid is found, and the other contents, if any, of the receptacles or packages in which the same is found, and the animals, carts, vessels, or other conveyance used in carrying the same, shall likewise be liable to confiscation.” (Emphasis added)

The above section was considered in Sinnetamby v. Ramalingam, 26 NLR 371 at page 373, Sohneider, J held that;

“For the purpose of deciding this appeal, it is necessary to consider the position of the owner of any of the things which are mentioned in section 51 as liable to confiscation in those cases, where the owner himself is not convicted of any offence. Sections 51 and 52 contain no express provision by which the owner could be touched with notice before an order of confiscation is made. In the special case contemplated in section 52 (2), it is provided that any person claiming to be owner is to be heard. Our Excise Ordinance was borrowed from the Bengal Excise and Licencing Act (VII. B. C. of 1878). Mr.

Perera who appeared for the appellant in this appeal drew my attention to the case of Golap Saha v. Emperor. In that case it was held that the boat in which the excisable article was carried should not be confiscated under the provisions of section 75 of the Bengal Act (which corresponds to section 52 of our Ordinance) unless it is found that the owner of the boat was in some way implicated in the offence. ………….although the section empowers the Court to confiscate the boat, yet, as a matter of