JUDGMENT

P. Kumararatnam, J.

The Complainant filed a charge sheet Under Section 63(1) (a) of the Mines and Minerals Act No.33 of 1992 as amended by Act No.66 of 2009 against the Accused in the Magistrate Court of Ambalantota for mining sand without a valid license issued by the Geological Survey and Mines Bureau using an Excavator Machine bearing registration No. SK 200. As the Accused pleaded guilty to the charge sheet, the Learned Magistrate of Ambalantota had convicted the Accused and imposed a fine of Rs.50,000/- and fixed for an inquiry under Section 63 (b) (1) of the Mines and Minerals Act to decide whether to confiscate the Excavator Machine bearing No. SK 200.

At the conclusion of the inquiry, the Learned Magistrate had decided to confiscate the aforesaid machine by his order dated 25.11.2021. At the inquiry only the Registered Applicant-Appellant-Petitioner (Hereinafter referred to as the Petitioner) had given evidence on him behalf.

Being aggrieved by the order of the Magistrate, the Appellant filed a Revision Application in the Provincial High Court of Southern Province Holden at Hambantota to revise the order of the Learned Magistrate of Hambantota.

After an inquiry, the Learned High Court Judge had dismissed the said Revision Application of the Petitioner on the basis that the Petitioner had failed to take necessary precaution to prevent misuse of the aforesaid Excavator Machine bearing No. SK 200.

Now the Petitioner filed this Revision Application in terms of Article 154-P (6) of the Constitution to set aside the order of the Learned High Court Judge of Southern Province Holden at Hambantota dated 06/07/2022.

The Appellant submitted following exceptional circumstances:

i. It is respectfully submitted that the order dated 06/07/2022 of the Honourable High Court Judge is void, bad in law and illegal in as much as the same has been delivered on without giving due courtesy to the Section 63 (b) (1) of the Mine and Minerals Act No 66 of 2009.

ii. It is respectfully submitted that the Honourable Judge of the Provincial High Court has erroneously drawn an inference that the Petitioner could not take any precaution to prevent commission of offence using Excavator.

iii. The Honourable Judge of the Provincial High Court has erroneously come to the conclusion that the test used by the Court in Aruna Pradeep Prasanna vs Attorney General CA (PHC) No 61/2012 to decide whether the vehicle of the appellant was used for transportation of liquor without his knowledge or not in terms of the Excise ordinance, should be applied to this matter.

iv. The Honourable Judge of the Provincial High Court has erroneously come to the conclusion that in the case of Aruna Pradeep Prasanna vs Attorney General CA (PHC) No 61/2012 the Court of Appeal has imposed extent of burden of proof to the applicant as to why the goods which were used for the criminal offence should not be confiscated in terms of the section 54 (1) (2) of excise ordinance is same under the section 63 (b) (1) of the Mine and Mineral Act.

v. The Honourable Judge of the Provincial High Court has failed to give due consideration to the different words used in section 54 (1) (2) of excise ordinance and section 63 (b) (1) of Mine and Mineral Act as in the section 54 (1) (2) of Excise Ordinance has indicated as shall be liable to confiscation but in section 63 (b) (1) of Mine and Mineral Act has indicated as may make order to be confiscated.

vi. The Honourable Judge of the High Court has assigned burden of proof to the applicant who asking the goods in terms of the section 63 (b) (1) of the Mine and Mineral Act and that extent of burden of proof is not intended to be assigned by the Parliament.

vii. The Honourable Judge of the High Court has erroneously used the judgment delivered under the Excise Ordinance to this matter without considering relevant facts of the present matter viii. The Honourable Judge of the High Court has come to conclusion that the evidence given by the Petitioner in the Magi