NISHANTHA AND 3 OTHERS VS. STATE

NISHANTHA AND 3 OTHERS VS. STATE

COURT OF APPEAL
ABDUL SALAM, J. P/CA
RAJAPAKSE, J.
CA PHC 120/2012, 108/2012
107/2012, 119/2012
HCR RATNAPURA 21/2011
MAY 22ND 2014
FEBRUARY 17, 2014

Mines and Minerals act no. 33 of 1992 Section 63(6)(1) - Transporting sand in a lorry without a license - Could the lorry be 'forfeited' - "Machinery or equipment" does it include the vehicle? Code of Criminal procedure - Forest Conservation Ordinance Section 40, Section 78 - Excise Ordinance no. 8 of 1912 Section 54 (1) - Offensive Weapons Act - Section 8 - Motor Traffic (amendment) act no. 8 of 2009 Section 17(1), Section 13, Section 14 - Vehicle Ordinance Section 50, Sri Lanka ports authority act - Customs Ordinance Section 37(2) - Coast Conservation act no. 57 of 1981 Section 31a Statutory interpretation - Duty of Court - Constitution article 28.

The Accused respondent was charged in the magistrate Court for transporting sand without a permit and found guilty on his own plea. The magistrate held that by reason of the fact that transportation of sand being an offence and the conveyance has been done by the use of lorry, the term equipment and or machinery in Section 63 (6)(1) should be construed to include a vehicle and therefore liable to be forfeited under the mines and minerals Act. The High Court affirmed the confiscation of the vehicle concluding that a vehicle is a necessary equipment for moving a thing from one place to another - In Appeal -

Held:

(1) The legislature in enacting the provisions of the mines and minerals Act in its own wisdom has adopted a comparatively lenient

and tolerant attitude with regard to the vehicle of whatever nature that are used in the transportation of minerals and contemplated only the machinery and equipment used in the commission of an offence.

Per Abdul Salam, J. (P/CA)

"It is axiomatic that in exercising the judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what has been enacted. On the contrary courts do not impute to the legislature an intention to abrogate or deprive the citizen of their possessory rights affecting properties by attempting to read in to the legislation what the legislature in reality did not intend."

(2) It is not without significance that the legislature vested, with exclusive right to deprive the citizens of their property rights had clearly thought is fit not to use the word "vehicle" or any other words of similar meaning in the mines and minerals Act.

(3) The duty of Courts is carry out the intention of the Parliament. It is by making sense of the enactment, the legislative wisdom is given effect to and not by giving extended meaning to the language, especially when such an extended meaning would result in the deprivation of a right.

Per Abdul Salam, J.

"Adverting us to certain decisions the state invited us to give effect to the confiscatory clauses in the Act by not altering the material  of which the Act as woven by ironing out the creases. I regret my inability to respond to this invitation in a positive manner as an interpretation given on the lines suggested by the State would  definitely alter the material of which the piece of legislation in question in woven. As regards the wording of the confiscatory clause in the Act, I find no creases or wrinkles in the Act and as a matter of law the legislature in question is crease proof"

Cases referred to:-

(1) Shantha Vs. Attorney General and another 1991 - 1 SLLR 201
(2) Perera Vs. Van Sanden 46 NLR 187
(3) Police Sgt. Vs. Ramen Kankanan 37 NLR 187

(4) Silva Vs. Muthai 45 NLR 142
(5) Govindan Vs. Nagoor Pitchche 20 NLR 115
(6) Fothergill Vs. Monarch Air Lines 1981 Ac 251, 275

APPEAL from the Judgment of the High Court (Ratnapura)

Chathura Galhena for the Appellants in CA 108/2012

MCM Muneer for the Appellant in CA 107/2012, 119, 120/2012

Thusith Mudalige SSC for State.

Cur.adv.vult

03rd September 2014

A.W. ABDUL SALAM, J (P/CA)

Click Here to Read the rest of this document