A vehicle owned by a third party cannot be confiscated if its owner proves they took reasonable precautions to prevent its use in committing an offence.

JUDGMENT

AMAL RANARAJA, J.

1. The Registered Owner-Petitioner-Appellant (hereinafter referred to as the ‘appellant’), a businessman by profession has utilized the vehicle bearing Registration No. UP LL 0358 for his business purposes, including to transport sand. Sand has been transported from Mahiyangana to Hatton and the appellant has been in possession of a valid permit for such purpose.

2. On 29.01.2015, the appellant as per the usual practice has handed over the permit and the particular vehicle to its driver one, Rathnayake Mudiyansilage Kumara Rathnayake to transport a load of sand from Mahiyangana to Hatton. Unknown to the appellant the Kandaketiya Police had arrested the driver for transporting timber without a valid permit in terms of Section 24 (1) read with Sections 25 (2) and 40 of the Forest Ordinance No. 16 of 1907 (as Amended). The Kandaketiya Police has also seized the said vehicle bearing Registration No. UP LL 0358 which had been used to transport the timber.

3. Thereafter, the Officer-in-Charge of the Kandaketiya Police Station has filed action in the Badulla Magistrate Court against the driver referred to above, for transporting timber without a valid permit, an offence in terms of Section 24 (1) and Section 40 of the Forest Ordinance. The driver (as the “accused”) upon pleading guilty to the charge has been convicted and sentenced.

4. Subsequently, a confiscation inquiry has been held regarding the vehicle bearing Registration No. UP LL 0358. After the inquiry by order dated 22.02.2017, the Learned Magistrate has ordered the confiscation of the said vehicle. Aggrieved by the order, the appellant has filed an application in revision [HCRA 35/2017] in the High Court of Badulla. The Learned High Court Judge by his order dated 25.06.2020 has dismissed the revision application and affirmed the order of the Learned Magistrate dated 22.02.2017. The appellant also being aggrieved by the order of the Learned High Court Judge of Badulla, dated 25.06.2020, has preferred the instant appeal to this Court.

5. The facts of this appeal were not disputed. It is common ground that the Officer-in-Charge of the Kandeketiya Police had instituted proceedings against the driver i.e. Rathnayake Mudiyansilage Kumara Rathnayake for transporting 14 logs of jack timber valued at Rs. 102,108.37 on 29.01.2015 without a permit and thereby committing an offence punishable in Sections 24 (1), 25(2) and 40 of the Forest Ordinance No. 16 of 1907 (As Amended)

6. Section 40 of the Forest Ordinance No. 16 of 1907 (As Amended provides,

“(1) Where any person is convicted of a forest offence –

(a) All timber of forest produce which is not the property of the State in respect of which such 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 in any case where the owner of such tools, vehicles, implements and machines used in the commission of such offence, is a third party, no Order of Confiscation shall be made if such owner proves to the satisfaction of the Court that he 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.

(2) Any property forfeited to the State under subsection (1) shall –

(a) if no appeal has been preferred to the Court of Appeal against the relevant conviction, vest absolute