IN THE COURT OF APPEAL OF THE DEMOCTRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for revision under and in terms of Article 138 of the Constitution, read with Article 154 P (6) of the Constitution and the High Court of the Provisions (Special Provisions) Act No. 19 of 1990.

CA/CPA/67/25 Officer-In-Charge HC Case No: HC/AMP/MC/655/24 Police Station MC Ampara Case No. 12007/S Mangalagama Complainant V.

Herath Mudiyanselage Wickramarathne Palathuruwella, Serankada Padiyathalawa Accused And Wanigasekara Mudiyanselage Pathma Kanthi

25th Mile Post Mangalagama Applicant-Appellant-(Registered Owner)

Vs.

1. Officer-In-Charge Police Station Mangalagama Complainant-Respondent Hon. Attorney General Attorney General's Department Colombo 12 Respondent AND NOW BETWEEN Wanigasekara Mudiyanselage Pathma Kanthi

25th Mile Post Mangalagama Applicant-Appellant-Petitioner (Registered-Owner)

Vs.

1.Officer-In-Charge Police Station Mangalagama Complainant-Respondent-Respondent Hon. Attorney General Attorney General's Department Colombo 12 Respondent-Respondent Before : B. Sasi Mahendran, J.

Amal Ranaraja, J Counsel: Sandamal Rajapakshe with Pramod Polpitiya for the Accused-

Appellant Supported On: 01.08.2025 Order On: 29.08.2025 ORDER B. Sasi Mahendran, J.

The Applicant- Appellant Petitioner (hereinafter referred to as the “Petitioner”) instituted this appeal against the order of the Learned High Court Judge of the Provincial High Court of Eastern Province, holding in Ampara in case No. HC/AMP/MC-APP/655/2024, where the Learned High Court Judge affirmed the order of the Learned Magistrate of Ampara bearing No. 12007/S, where the Learned Magistrate had confiscated a tractor and a trailer bearing No. EP RG-

4331 and No. EP RW-5156, respectively, consequent to an inquiry.

The Accused, Herath Mudiyanselage Wikremaratne, upon his unequivocal admission, was found guilty of the offence and was duly fined by the Learned Magistrate of Ampara. The petitioner, who is the absolute owner, submitted an application to claim the tractor on the basis that he has taken necessary precautions to prevent the commission of the inquiry regarding the confiscation of the vehicle involved in the sand excavation, which is an offence under the Mines and Minerals Act, No.33 of 1992.

Upon reviewing the Learned Magistrate’s order dated 08.08.2024, it was his considered view that the Petitioner failed to exercise due diligence and take meaningful steps to prevent the tractor and trailer from being used in the commission of an offence. On the day the offence occurred, the Petitioner handed over the tractor to the Accused without making any inquiries regarding the nature of the work being undertaken. Although the evidence indicates that the Petitioner advised against engaging in unlawful activity, the Learned Magistrate found that such advice alone did not constitute meaningful preventive action. Consequently, while payment was made based on the work performed and the hours expended, the Petitioner’s failure to question the nature of the assigned work was deemed unacceptable.

In an inquiry of this nature, it is incumbent upon the owner of the vehicle, Petitioner, to demonstrate to the Court that all reasonable precautions were taken to prevent the vehicle's use in the commission of the offence.

This was considered in the case of Finance Company PLC Vs. Priyantha Chandra and Five Others (2010) 2 SLR 220, after considering several judicial pronouncements, Dr. Shirani Bandaranayake, J. (as she was then) held:

“On a consideration of the ratio decidendi of all the aforementioned decisions it is abundantly clear that in terms of section 40 of the Forest Ordinance as amended, if the owner of the vehicle in question was a third party, an order of confiscation shall not be made if that owner had proved to the satisfaction of the Court that he has taken all precautions to prevent the use of the said vehicle for the commission of the offence. The ratio decidendi of all the aforemention