IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an appeal under and terms of article 154P of the Constitution read with section 11 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 read with section 12(2) of part ii of the Court of Appeal (Procedure for appeals from High Courts established by Article 154P of Constitution) Rules, 1988. Court of Appeal Case No:

CA-HCC-41/2020 HC Monaragala Case No:

HCM/78/2017 Madhawa Roshan Kithulgoda No. 626/16 A, Awissawella Road, Kaduwela.

Applicant-Appellant Hon. Attorney General, Attorney General’s Department, Colombo 12.

Respondent -Respondent Before: N. Bandula Karunarathna J.

&

R. Gurusinghe J.

Counsel: Asthika Devendra AAL with Arupa Madushanka AAL for the Applicant-Appellant Shaminda Wickrema SC for the for the Respondent-Respondent Written Submissions: By the Applicant-Appellant on 10.02.2021 By the Respondent-Respondent on 05.08.2021 Argued on : 09.11.2021 Decided on : 16.12.2021 N. Bandula Karunarathna J.

This is an appeal from the judgement of the High Court Judge of Monaragala dated 24.04.2020. The appellant is the registered owner of the vehicle number WP KD 9832. The said vehicle was taken into custody on 21.11.2012 for the offence that the vehicle was used to possess and traffic cannabis by the accused and several others.

Altogether 5 accused were indicted by the Monaragala High Court on the following charges, committed on 21.11.2012:

1) Possession of cannabis (one charge against all 5 accused) 2) Trafficking of cannabis (one charge against all 5 accused)

All 5 accused pleaded to the charges on 27.11.2017 and each accused was sentenced as follows:

(i) For the first charge; a fine of Rs. 25,000 with simple imprisonment for 6 months in default.

(ii) For the second charge, 2 years’ rigorous imprisonment was suspended for 10 years.

The case was concluded and no order was made regarding the impugned vehicle until an application was made on 22.05.2018 by the appellant to that effect. The vehicle inquiry commenced on 04.12.2018.

The order was dated 24.04.2020 and delivered on 26.05.2020. This appeal is preferred against the said order. The grounds of appeal are as follows;

(i) No evidence to establish that the vehicle had been used for the commission of the offence.

(ii) Confiscating the vehicle is bad in law when the appellant has given reasonable and acceptable explanations as to that he did not have any knowledge about this culpable act.

(iii) The learned Provincial High Court Judge erred in law and fact to confiscate the vehicle when the claimant has presented acceptable evidence to prove that he has taken precautions to prevent the commission of the offence using the vehicle.

(iv) The appellant has proved that he has taken necessary precautions to prevent the use of the vehicle for a crime on a balance of probability.

(v) Confiscating the appellant’s vehicle for an offence that was done without his knowledge and participation in violation of his human rights.

(vi) The concept of a property right had been violated.

(vii) The right to equal protection, the equal benefit of the law and access to equal justice had been violated.

The respondent says that there are 2 preliminary objections regarding this appeal;

1. That the caption is deficient and thus is not in conformity with the law and the Supreme Court Rules. The petition of appeal carries no description in the caption regarding the applicable law and thus is deficient based on filing the said petition. Therefore, the petition of appeal is bad in law and should be dismissed in limine.

2. Necessary parties have not been named and the petition is also deficient in that respect. Only the Attorney General has been named as a ‘respondent’; in that, the proper naming of the respondents should involve all concerned parties including the 5 accused who stood trial and pleaded to the indictment in the original case.

It was argued that this is quite apparent when considering a proper petition as the