Govinden V. Nagoor Pitche

Present : Ennis J.

GOVINDEN v. NAGOOR PITCHE.

P. C. Colombo (M. C), 6,983.

    Obstructing road-Conviction under s. 53 (4), Police Ordinance, 1865- Forfeiture of sherbet cart causing obstruction-Criminal Procedure Code. ss. 3, 15, and 413.

Accused was convicted under section 53 (4) of the Police Ordinance, 1865, with obstructing a public road by a sherbet cart containing sherbet, aerated waters, &c, for sale, and was fined Rs. 5, and an order was made forfeiting the cart and its contents.

Held, that the order as to forfeiture was wrong.

" It is to be observed that if the value of the goods forfeited (about Rs. 260 in value) be regarded as coming within the term ' pecuniary forfeiture in section 3 of the Criminal Procedure Code, it would seem that the punishment exceeds the amount of the fine awardable under section 53 of the Police Ordinance."

Under section 413 of the Criminal Procedure Code an order for the disposal of property may be one of forfeiture, as when knives, guns, or clubs are used in the commission of an offence. In such a case an order that they are to be handed to the police for custody, sale, or destruction would work a forfeiture and would come within the section. Where the property belongs to a person who is not a party to the offence, it would be inequitable in most cases to make any order other than one directing the return of the property to the owner.

The question resolves itself into one of fact in each case. If, for instance, the property were " used for" obstructing passengers an order for confiscation could be made, but if it were being carried

along the road and incidentally obstructed passengers, it cannot Re said to have been "used for" the purpose of obstruction: the offence is the consequence of an unlawful user of the property on the one hand, and is incidental to a lawful use of the property on the other.

THE facts are set out in the judgment.

Tisseverasinghe for applicant.-The order is apparently made under section 413, Criminal Procedure Code. The " disposal " of property under that section cannot Re held to include confiscation or forfeiture. A penal provision of that kind should Re expressly enacted, and cannot Re implied. When forfeiture or confiscation is intended the Legislature expressly enacts it. See sections 51 and 52 of the Excise Ordinance, 1912; sections 7, 8, and 21 of the Opium Ordinance, 1910, &c. Suppose the cart had been hired by the accused. A provision of adjective law cannot authorize an encroachment on the legal rights of the owner of the property who is not before Court.

In India, under the corresponding section 517 of the Indian Code, it has been held that such an order cannot Re made. Lakshmi Narayan Dutt v. Ureagan,1 Prithwegir v. Emperor.2

If it does include forfeiture, property used in the actual commission of the offence only comes under its purview. In case of rash driving, harness, carriage, and pony cannot Re confiscated or sold, Crown v. Ilahi Baksh;3 nor a press when seditious matters have been printed in it, Bhattachariya v. Emperor;4 nor the gold ornaments found on the accused who was afterwards convicted of criminal breach of trust, Queen Empress v. Fattar Chand.5

Obeyesekere, C.C., for the Crown.-An order for " disposal " includes an order for forfeiture or confiscation. In re Ishwar.6

Cur. adv. vult.

November 17, 1917. ENNIS J.-

This application raises an intricate question. The accused was convicted of exposing for sale a sherbet cart containing sherbet, oranges, aerated waters, &c, on the side of a public road in such a manner as to obstruct foot passengers. On his plea of guilty he was fined Rs. 5, and an order forfeiting the cart and its contents was made. The affidavit of the accused in support of his application states that the forfeited property is about Rs. 60 in value, and is the only property and means of livelihood of the accused, who is only seventeen

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