MATILDA SILVA

Vs.

INSPECTOR OF POLICE, HABARANA AND ANOTHER

COURT OF APPEAL
DE ABREW, J.
ABEYRA THNE, J.
CA/PHC/86/1997
HC/ANURADHAPURA/REV/51/1996
JUNE 10, 2010

Animals Act, proviso to section 3A-Confiscation of the vehicle-Burden of proof on the owner of the vehicle

The driver of the lorry and three others were convicted of transporting cattle in contravention of the provisions of the Animals Act. After inquiry, the lorry was confiscated under section 3A of the Act by the Magistrate's Court. The High Court affirmed the order. The owner of the lorry appealed to the Court of Appeal.

Held:

1. Section 3A of the Animals Act enacts that where any person is convicted of such an offence, any vehicle used in the commission of the offence shall, in addition to any other punishment prescribed for such offence, be liable to confiscation by the Magistrate's Court.

2. However, the proviso to section 3A states that if 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 (a) he took all precautions to prevent the use of such vehicle in the commission of the offence or (b) the vehicle was used without his knowledge in the commission of the offence.

3. For the owner of the vehicle to discharge the burden of proof that he took all precautions to prevent the use of the vehicle in the commission of the offence or that the vehicle was used without his knowledge in the commission of the offence, mere instructions given to the driver is not sufficient. The owner must establish that genuine instructions were in fact given and that he took every endeavour to see that those instructions were followed.

4. In this case, the evidence of the owner that she was unaware of the fixing of two iron rods to the body of the lorry and that she gave instructions to the driver not to use the vehicle for illegal activities cannot be accepted. The owner did not call the driver to establish that the instructions were in fact given.

5. The proviso to section 3A does not exist to protect an owner who is privy to the offence. If the behaviour of the owner indicates that he is privy to the offence, then he has not discharged his burden.

Cases referred to:

1. Faris v. OIC Galenbidunuwewa [1992] 1 Sri LR 167

APPEAL from the Judgment of the High Court of Anuradhapura.

Dr. Ranjith Fernando for the Appellant.

Riyaz Hamza, S.S.C., for the Respondents.

cur. adv. vult.

July 8, 2010

DEABREW,J.

The appellant is the owner of the lorry bearing Registration No. 43-7056. The driver of the said lorry and three others were convicted on their own pleas for transporting 27 head of cattle in contravention of the provisions of the Animals Act and Cruelty to Animals Act. The learned Magistrate thereafter held an inquiry and made an order dated 10.10.1996 confiscating the lorry. At the inquiry, the owner of the lorry gave evidence. The appellant's revision application was dismissed by the learned High Court Judge of Anuradhapura by his judgement dated 28.2.1997. The appellant has preferred this appeal against the said judgement.

Learned Counsel for the appellant, drawing our attention to page 108 of the brief, contended that the learned Magistrate having observed that the owner of the lorry did not have knowledge of the commission of the offence proceeded to confiscate the lorry and that the order is therefore bad in law. But I am unable to agree with this contention when I consider the entire order. The learned Magistrate at page 109 of the brief concluded that the appellant (the owner of the lorry) had not proved that the offence was committed without her knowledge. I therefore reject

the above contention. Learned counsel however conceded that the word 'atha' in the last paragraph of page 109 of the brief (the judgment) is a typographical error.

Section 3 of the Animals Act reads as follows:

Where any