Joseph V. The Attorney General

1946 Present : Wijeyewardene J.

JOSEPH, Appellant, and THE ATTORNEY-GENERAL,
Respondent.

426-Application for revision in M. C. Colombo, 14, 738

Criminal Procedure Code, s. 413 (1)- Disposal of property under-Validity of such order where accused is acquitted-Evidence Ordinance, s. 24- Admissibility of confession for other purposes than as a confession.

Where an accused is acquitted on the ground that the evidence to prove the alleged offence is insufficient, the court can, nevertheless, by virtue of section 413(1) of the criminal procedure code, make an order for the disposal of the property produced before it by directing its delivery to a person entitled to its possession, if the court considers that an offence has been committed in respect of that property. The opinion of court as to the ownership of the property may be based on a confession made by the accused; section 24 of the Evidence Ordinance which makes confessions ?irrelevant in a criminal proceeding? does not prevent a court from acting on them in an application under section 412 (1) of the Criminal Procedure Code.

APPLICATION to revise an order of the Magistrate?s Court, Colombo.

                        S. Alles (with him C.J. Ranatunge), for the petitioner.

                      A. C. M. Ameer, C.C., for the Attorney-General.

Cur. adv. vult.

October 3, 1946 WIJEYEWARDENE J.-

The first accused was the cleaner and the second accused was the driver of a motor lorry employed by the Co-operative Wholesale Establishment to transport 58 bags of Maldive fish from St. Sebastian Stores to New Maradana Stores. Acting on certain information received by him immediately after the lorry left the St. Sebastian Stores, Mr. Canagasuriya, the chief Storekeeper of the Co-operative Wholesale Establishment, telephoned to the New Maradana Stores not to unload the bags of Maldive fish from the lorry but to inform him as soon as the lorry arrived at the New Maradana Stores. Shortly afterwards, Mr. Canagasuriya received information of the arrival of the lorry was examined in the presence of the accused and it was found that there were only 48 bags of Maldive fish there were ten bags of ?Maldive dust?. Mr. Canagasuriya questioned the second accused who said ?that ten bags of good Maldive fish were unloaded at a certain place and ten bags of dust were put in its place and that he got Rs. 2,000? and added that he acted in that way at the request of some other employees of the Co-operative Wholesale Establishment. The second accused then handed to Mr. Canagasuriya the bundles of notes containing Rs. 2,000. A little later the accused made written statements P 5 when Mr. Canagasuriya told them that he would otherwise hand them over to the Police.

The accused were charged before the Magistrate under section 367 of the Penal Code with the theft of ten bags of Maldive fish valued at Rs. 570 and the Police produced before the Magistrate the bundles of notes which were handed to them by Mr. Canagasuriya.

The Magistrate convicted the accused and made an order directing Rs. 570 to be paid to the Commissioner of Co-operative Development and confiscating the balance Rs. 1,430.

The conviction of the accused was set aside in appeal on the ground that there was insufficient evidence against the accused, as the confessions made by them were inadmissible under section 24 of the Evidence Ordinance.

After the acquittal, the second accused applied to the Magistrate for the return of the sum of Rs. 2,000 to him. The Magistrate refused that application and the second accused now brings up that order in revision before this Court.

Several Indian decision (e.g., Russul Bibee v. Ahmed Mosajee1 and Kanaga Sabai et al. The Emperor2) were cited before me in support of the argument that the Magistrate had jurisdiction to deal with the property even though the accused were acquitted. I find however, that these decisions hav

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