Sub-Inspector Of Police, Kurunegala V. Ran Manika

 1927 Present: Dalton J.

SUB-INSPECTOR OF POLICE, KURUNEGALA v. RAN MENIKA.

638-P. C. Kurunegala, .9,873.

Lotteries Ordinance-Forfeiture of properly-Prizes of the lottery- Powers of Court-Criminal Procedure Code, Chapter XL.

Where a person was convicted of an offence under the Lotteries Ordinance, the Court has no power to order the forfeiture of articles in the possession of the accused said to be the prospective prizes in the lottery.

APPEAL from an order of the Police Magistrate of Kurunegala, confiscating a travelling cart, a race cart, and a bull, which were in the possession of one Herathamy, who was convicted of publishing proposals for a lottery. They were seized us the prospective prizes in the lottery, but no order was made confiscating them on the conviction of the accused. Some time later the appellants filed a petition claiming the property as theirs; and after inquiry the learned Police Magistrate made the order appealed from.

H. V. Perera (with Chelvanayagam), for appellants.

Schokman C. C., for the Crown.

January 18, 1927. DALTON J.-

This is an appeal by two persons, Ran Menika and Ukku Banda, against an order of the Police Magistrate confiscating a travelling cart, a race cart, and a bull.

It appears that one Herathamy was convicted on June 4 last under section 288 of the Penal Code of publishing proposals for a lottery and, under section 4 of the Lotteries Ordinance of 1844. of selling tickets in a lottery. This conviction was confirmed on appeal on July 20. The property, the subject of this appeal, was found in Herathamy's possession and was said to be the prospective prizes in the lottery. It was seized by the Police in the course of the proceedings, but no order was made at the conclusion of the case as contemplated by section 413 (1). It appears, although I can find no definite evidence to that effect, to have remained in Police custody.

Some time in August the two appellants filed a petition claiming the property as theirs. A date for inquiry was fixed by the Magistrate, and evidence was led.

The proceedings in the lower Court appear to have been most informal and casual, counsel before me not being able to say under what authority the petition was filed, or by what authority the

Magistrate held any inquiry. I can in fact find no petition. It is assumed, however, the Magistrate purported to proceed under some section contained in Chapter XL. of the Criminal Procedure Code. At the conclusion of the inquiry he, made the order o confiscation appealed against.

The first point raised is that the appellants have no right of appeal. They are no parties to the case against Herathamy which is the only " criminal case or matter " related to this application. They have no right of appeal derived from section 338 of the Criminal Procedure Code. It is urged, however, that, assuming the order of confiscation is made under some section of Chapter: XL., the right of appeal given by section 420 (2) applies. The right clearly applies only in case of an order made under section 420. It is admitted that the order appealed from has not beer made under that section, therefore, the provisions of sub-section (2) do not apply. The wording of the section is quite clear and explicit. This point was raised and dealt with in King v. Mack 1.

It was then urged for appellants that if they have no right of appeal, the matter be dealt with in revision as the Court had no power to make the order of confiscation. I am satisfied that then is no right of appeal here, but I am equally satisfied that the Court had up power to make the order complained of. I am disposer therefore to deal with the matter in revision.

The argument on both sides was, based upon the assumption that the order of confiscation was made under some provision of Chapter XL. already referred to, and I am dealing with the matter on that footing. Crown Counsel w

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