Iddawala – J

This is an appeal filed on 19.07.2018 against the judgment of the learned High Court Judge of Uva Provincial High Court holden in Monaragala in Case No. RA 53/2017 delivered on 10.07.2018 which affirmed in revision, an order of confiscation of vehicle under the Forest Ordinance delivered on 23.10.2017 by the learned Magistrate of Monaragala in case No. 82117. The petitioner has invoked the appellate jurisdiction of this Court to set aside both orders and thereby to release the confiscated Tractor bearing registration No. SP (RA) 3601. In the petition the Appellant has only prayed for the release of the tractor, thus this Court would not examine the validity of the confiscation of the trailer.

On 24.05.2017, the tractor bearing registration No. SP RA 3601 (hereinafter the vehicle) and the trailer bearing No. UPRV 3102 were taken into custody for entering a conserved forest and removing and transporting sand in violation of the Forest Ordinance No. 16 of 1907. The accused persons who were one Nishantha who drove the vehicle at the time and others, pleaded guilty, and a fine was imposed. A vehicle inquiry was held under the Section 40 of Forest Ordinance as amended in which the Registered Owner of the Tractor (hereinafter referred to as appellant) gave evidence and was cross- examined by the prosecution. The registered owner of the Trailer was one Thilakaratne who had given the trailer to the appellant for a monthly payment. After the conclusion of submissions, on 23.10.2017 the learned Magistrate ordered both the tractor and the trailer to be confiscated. Aggrieved by the said decision, the petitioner filed a revision application in the High Court, which dismissed the revision application and reaffirmed the order of the learned Magistrate.

Section 40 of the Forest Ordinance No. 16 of 1907 as amended by Forest (Amendment) Act No 65 of 2009 stipulates confiscation of vehicles connected with a forest offence as follows:

(1) 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 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."(Emphasis added)

The Amendment of 2009 has cast a burden on a claimant of a vehicle inquiry under the Forest Ordinance, on a balance of probability, to dispense the burden of proving to the satisfaction of the Court that he, having ownership of the vehicle concerned, had taken all precautions to prevent the use of such vehicle for the commission of the offence. Hence, the primary contention to be decided by this Court is whether the learned Magistrate has correctly evaluated the evidence placed before him when arriving at the final determination that the appellant has failed to dispense the said burden.

It was contended by the appellant that the vehicle had been purchased in 2011 and used to transport construction material on hire. He had hired the driver one Samantha three months prior to the incident. Appellant further contented that Samantha was known to him from his own area, a frequent visitor to his house and the driver’s license of Samantha was checked by him. He contended that he had instructed not to engage in illegal activities using the vehicle and to return it at the end of the day, furthermore at times when time permits appellant visits the vehicle during work. He states that on the day in question, he had gi