K. PRIYANTHA FERNANDO, J

1. The present appeal has been instituted by the respondents- respondents-Appellants (hereinafter referred to as "the Appellants") challenging the judgment of the Court of Appeal dated 01.04.24 by which an order was made directing the release of a vehicle that had been confiscated pursuant to offences committed under the Forest Ordinance and the Antiquities Ordinance. The Claimant - Petitioner- Appellant-Respondent (hereinafter referred to as the Respondent ) to this appeal is the absolute owner of the said vehicle. At the time of the arrest, however, the 1st accused who was charged with the commission of the aforementioned offences was the owner of the vehicle.

2. On 12.12.2016, nine suspects excavating in the Elandamunei Conservation forest were arrested along with tools used for excavation and a Van bearing Number SGPH 4430 (hereinafter referred to as the Vehicle). At the time of the seizure, the registered owner of the vehicle was the 1st accused and the absolute owner was the claimant respondent. On 11.01.2017, the nine accused were charged for the following offences in the Magistrate(cid:213)s Court of Kuchchaveli.

❖ Commission of the offence of trespass in conservation forest under S.06 (2)(a) of the Forest Ordinance.

❖ Digging soil in a conservation forest which is an offence under S.06 (2)(p) of the Forest Ordinance.

❖ Excavation in a forest conservation for the purpose of discovery of antiquities - Section 15 (1) of the Antiquities Ordinance.

3. Thereafter, on 11.01.2017, all nine accused persons including the registered owner of the Vehicle, pleaded guilty to all the above mentioned charges and were sentenced. By motion dated 18.01.2017, the absolute owner (claimant) made a claim for the vehicle. After inquiry the learned Magistrate refused the claim and ordered to confiscate the vehicle.

4. Aggrieved by the order of the learned Magistrate, the respondent made a revision application to the Provincial High Court of Trincomalee which also affirmed the order of the learned Magistrate. Being aggrieved, the respondent appealed to the Court of Appeal. The Court of Appeal on 01.04.2024 overturned the judgments of the Provincial High Court as well as the learned Magistrate and ordered the release of the Van to the claimant respondent.

5. Aggrieved by the judgement of the Court of Appeal, the instant application was filed to this Court by the appellants, and leave was granted for the following questions of law:

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a. Did the Court of Appeal err in law by its failure to correctly appreciate and apply the provisions of Section 40(1) of the Forest Ordinance, as amended, in respect of the instant case?

b. Did the Court of Appeal err in law by its failure to correctly appreciate and apply the rules formulated by Your Lordships’ Court as regards to the ’owner’ contemplated under Section 40(1) of the Forest Ordinance, as amended, in respect of the instant case?

c. Did the Court of Appeal err in law by its failure to consider that the Respondent was estopped from challenging the jurisdiction of the learned Magistrate in holding a confiscation inquiry, belatedly during the appeal, having failed to raise any objection at the time of the inquiry?

6. At the hearing, referring to Section 40 of the Forest Ordinance the Learned Deputy Solicitor General for the appellants stated that, the Court of Appeal has erred in law by incorrectly applying the proviso to Section 40 of the Forest Ordinance to the given matter. The Learned Deputy Solicitor General argued that, in the instant case it is the registered owner who has control and possession of the vehicle, who has also pleaded guilty for the commission of the offence. Therefore, the learned Deputy Solicitor General took the position that, the proviso to Section 40 of the Forest Ordinance, does not apply when the owner himself committed the offence under the Forest Ordinance.

7. The learned Deputy Solicitor General further contended that, it is very important to consider and under