Vehicle owners must demonstrate all reasonable precautions to prevent illegal use; mere denial of knowledge is insufficient post-amendment of the Forest Ordinance.

JUDGMENT

B. Sasi Mahendran, J.

The Registered Owner -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 Central Province holding in Kandy in case No. 66/2016 dated 21.10.2020 where the Learned High Court Judge affirmed the order of the Learned Magistrate of Kandy bearing No. 87998 dated 10.10.2018 where the Learned Magistrate has confiscated a lorry bearing No. SP LB 3340 consequent to an inquiry.

The accused, Walihena Hewage Samantha, was found guilty of the offence of illegally transporting eight Mahogany logs, in violation of Section 25(2) read with Section 40 of Act No. 65 of 2009 of the Forest Ordinance . Following the conviction, the Learned Magistrate proceeded to conduct an inquiry regarding the vehicle that had been seized for its involvement in the unlawful transportation of the Mahogany logs, in contravention of the Forest Ordinance .

The Learned Magistrate, acting in terms of Section 40 (1) of the Forest Ordinance , allowed the owner to show cause as to why the lorry should not be confiscated.

In an inquiry of this nature, it is incumbent upon the owner of the vehicle to demonstrate to the Court that all reasonable precautions were taken to prevent the vehicle's use in the commission of the offence. The amendment to Section 40 of the Forest Ordinance by Act No. 65 of 2009 provides that,

“Where any person is convicted of a forest offence.

(A) All timber or forest produce which is not the property of the State in respect of which the offence has been committed, and

(B) All tools, vehicles, implements, cattle and machines used in committing such offence

Shall, in addition to any other punishment specified for such offence, be confiscated by order of the convicting magistrate.

Provided that where the owner of the vehicle is a third party, no order of confiscation shall be made if such owner proves to the satisfaction shall be made if such owner proves to the satisfaction of the court that she had taken all precautions to prevent the use of such tools, vehicles, implements, cattle and machines, as the case may be, for the commission of the offence.’

This principle is followed by the Her Ladyship Justice K. K. Wickremasinghe in Karunapedi Durayalage Sumana Kumara v. Officer-in- Charge, Police Station, Narammala and others has stated:

“Further, it is imperative to note that as per, section 40 of the Forest Ordinance (amendment Act No. 65 of 2009), it is mandatory to prove preventive measures taken by the vehicle owner in question. Even thoughthe previous law allowed a vehicle owner to prove either he took precautions or he had no knowledge of an offence being committed, the amended section 40 only focuses on the precautions taken by a vehicle owner in question. Therefore, I am of the view that mere denial of the knowledge about an offence being committed or denial of t he control over his own vehicle is not sufficient for a vehicle owner to discharge the burden cast on him, under section 40 of the Forest Ordinance (as amended).”

Iddawala J in Rajapakse Dewage Asanga Kumara Chandrasena v. Officer- in- Charge, Police Station, Katugasthota and another has stated;

“By the amendment to the Forest Ordinance in 2009 by Act No. 65 of 2009, the legislature has determined that having no knowledge of the offence being committed is a not good enough a reason anymore to claim a confiscated vehicle. Therefore, Counsel has to be mindful in citing cases decided prior to the 2009 amendment or cases decided under other legislations. The judiciary has to only discern whether the claimant being the owner of the vehicle, had taken all precautions to prevent the use of the vehicle for the commission of the offence. This entails positive actions on the part of the owner and not claiming mere ignorance.”

The aforementioned cases underscore the necessity for the vehicle owner to demonstrate that he implemented adequate preventive meas