THE FINANCE COMPANY PLC V. PRIYANTHA CHANDANA AND 5 OTHERS

THE FINANCE COMPANY PLC V. PRIYANTHA CHANDANA
AND 5 OTHERS

SUPREME COURT,
DR. SHIRANI A. BANDARANAYAKE, J.
AMARATUNGA, J. AND
EKANAYAKE, J.
S. C. APPEAL NO. 105A/2008
S.C. (SPL.) L. A. NO. 166/2008
H. C. A. NO. 131/2005 - HAMBANTOTA
M. C. NO. 61770
JULY 2ND, 2009

Forests Ordinance - section 24 (1) b - Prohiitit the transport of timber without a permit from a forest officer duly authorized to issue the same- Section 25(2)- transport of timber in Contravention of any regulation made under Section 24(1) . - Section 25(1) - penalties for the breach of any provision of, or regulation made under the Chapter of the Forest Ordinance - Section 40, as amended - power of Court to confiscate timber, forest produce, vehicles used in committing such offences etc. under the Ordinance.

At the request of the 1st respondent, the appellant, a registered Finance Company, had purchased and provided on lease the vehicle (used by the 1st' respondent to transport illicit timber) to the 1st respondent. Unknown to the appellant, the Beliatta Police had arrested the 3rd, 4th, and 5th respondent for transporting timber without a lawful permit, in terms of Section 24(1)(b)a nd Section 25(2)o f the Forest ordinance. The Beliatta Police also seized the said vehicle which had been used by the 3rd, 4th and/or 5th respondents to transport the said illicit timber. The Beliatta Police filed action against the 3rd, 4th and 5th respondents. The 3rd respondent pleaded guilty and the case was fixed for trial against 4th and 5th respondents.

A confiscation inquiry had been held regarding the lorry under the Code of Criminal Procedure Act. After inquiry the learned Magistrate made order to confiscate the said lorry used for the transport of illicit timber. The appellant being the absolute owner of the lorry filed an appeal against the Magistrate's order. The Learned Judge of the High Court after hearing the appeal dismissed the same.

The Supreme Court granted special leave to appeal against the order made by the Provincial High Court in the exercise of its appellate jurisdiction.

Held:

(1) It would be necessary for the owner of the vehicle to establish that the vehicle that had been used for the commission of the offence had been so used without his knowledge and that the owner had taken all precautions available to prevent the use of the vehicle for the commission of such offence. The owner has to establish the aforesaid matters on a balance of probability.

(2) Both the absolute owner and the registered owner should be treated equally and there cannot be any type of privileges offered to an absolute owner, such as a Finance Company in terms of the applicable law in the country. It would be necessary for the absolute owner to show the steps he had taken to prevent the use of the vehicle for the commission of the offence and that the said offence had been committed without his knowledge.

(3) The Learned magistrate had not erred when he held that the appellant had not satisfied Court that he had taken every possible step to prevent the Commission of the offence.

Cases referred to:

1.    Manawadu v. Attorney General - (1987) 2 SLR 30
2.    Inspector Fernando v. Marther - (1932) 1 CLW 249
3.    Sinnetamby v. Ramalingam - (1924) 26 NLR 371
4.    Mudunkotuwa v. Attorney General- (1996) 2 SLR 77
5.    Nizer v. I.P. Wattegama (1978-79) SLR 304
6.    Fans v. OIC, Police station, Galenbindunuwewa (1992) 1 SLR 167
7.    Rasinh v. Thambirak (1951) 53 NLR 574
8.    Mercantile Investments Ltd v. Mohamed Mauloom and others (1998) 3 SLR 32

APPEAL from an Order of the High Court of Hambantota.

I.S. de Silva with Suren de Silva for Claimant-Appellant-Appellant.

Riyaz Hamza, SSC, for the 6th Respondent.

Cur.adv. vult.

September 30th 2010
DR. SHIRANI A. BANDARANAYAKE, J.

    This is an appeal from the order of the High Court dated 30.06.2008. By that order the High Co

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