Iddawala – J

This application concerns an appeal by the Registered Owner-Petitioner- Appellant (Hereinafter, the appellant) pleading for the vehicle confiscation order issued by the Magistrate’s Court of Matara on 25.01.2019 and its affirmation by the High Court of Matara on 16.07.2021, to be set aside.

The facts of the case briefly are as follows. The accused was charged in the Magistrate’s Court of Matara (case number 45734) under the Animals Act, No. 29 of 1958 (last amended in 2009) for unlawfully transporting 11 bulls using the lorry bearing No. SP LE-9581 on the 03.07.2011. The accused pleaded guilty to the charges and was fined, and subsequently a vehicle inquiry was held. After evaluating the submissions made by the appellant, the learned Magistrate had ordered the confiscation of the said vehicle on the ground that the appellant has failed to satisfy the court of the requirements imposed on him by the law as the owner of the vehicle, have been fulfilled by the appellant. Being aggrieved by the said order, the appellant has invoked the revisionary jurisdiction of the High Court of Matara, and the learned High Court Judge has dismissed the application upholding the confiscation order.

The learned High Court Judge in judgment dated 16.07.2021 has acknowledged that the learned Magistrate has misquoted the relevant section 3A of the Animals Act due to a technical error. However, the spirit of the provision has been captured by the learned Magistrate and she has gone on to evaluate facts under both requirements given in proviso to Section3A.

The learned High Court Judge has also analysed both limbs of the proviso to Section 3A of the Act which are as follows:

“Provided, however, that in any case where the owner of the vehicle is a third party, no order of confiscation shall be made, if the owner proves to the satisfaction of the Court that he has taken all precautions to prevent the use of such vehicle or that the vehicle has been used without his knowledge for the commission of the offence.” (Emphasis added)

The learned High Court judge has considered the facts of the case and evaluated them under both limbs, and has been satisfied that neither of the two has been proved on a balance of probability. The vehicle being released to the appellant for merely stating that he was ignorant of the offence being committed or merely instructing the person to whom he rented out his vehicle not to use it for illegal purposes, without establishing facts to the ‘satisfaction of the Court’ has not been the legislative intent in introducing Section 3A proviso.

The appellant who had purchased the vehicle through a leasing facility for hiring out the vehicle, had lent it to one ‘’Liafdeen’ on monthly rent. The learned Magistrate’s and the learned High Court Judge’s considered view has been that the appellant had been unable to substantially establish on a balance of probability that he was unaware that Liafdeen, who he entrusted the vehicle to, was a butcher who dealt with cattle and had previous convictions in illegal transportation of cattle (Appeal Brief pages 115 and 41, respectively).

It must be noted at this point that the onus of proving this is on the appellant as per the proviso to Section 3A of the Act which stipulates “if the owner proves to the satisfaction of the court” that either of the two limbs were satisfied. Doing a bare-minimum background check on the person who one rents out his vehicle to, is a reasonable expectation from a responsible and diligent owner of a vehicle. Even though the appellant has stated that a written rent agreement exists between Liafdeen and himself, he has been unable to produce it before the Court. And upon gaining knowledge that Liafdeen had handed over the possession of the vehicle to one Hussain without his knowledge, the appellant has taken no additional precautions to ensure that the vehicle is not being used for any suspicious/illegal activity by an unknown party. Neither Liafdeen nor the accused Hus