1951 Present: Nagalingam J.

RASIAH, Petitioner, and TAMBIRAJAH (Divisional Forest
Officer) et al. Respondents

S. C. 360-Application in revision in M. C. Point Pedro, 11.264

Forest Ordinance (Cap. 311), ss.40, 43-Order of confiscation-Legality of ex parte order-Right of appeal-Revision -criminal Procedure Cods, s. 340.

Where a person is convicted of a forest offence, property used by him in the commission of the offence but belonging to a third party cannot be confiscated by order of Court under section 40 of the Forest Ordinance without an opportunity being given to the third party against the order being made.

Held further, that if an order of confiscation is made against such third party ex pane, he is entitled to move in revision and is not boned by the the time limit imposed by section 43 of the Forest  Ordinance in relation to appeals.

APPLICATION to revise an order of the Magistrate's Court, Point Pedro.

H. Wanigatunga, with M. Ramalingarn, for the petitioner..

L. B. T. Premaratne Crown Counsel, for the Attorney-General.

Cur. adv. vult.

October 25, 1951. NAGALINGAM J.-

This is an application in revision by the petitioner who claims to be the owner of a double bullock Cart 'which was ordered to be confiscated by the Magistrate in these proceedings upon his convicting the accused person who had transported firewood in the cart without permit or pass in breach of Regulations framed under the13'orest Ordinance. The order of confiscation Was in made on 30th May, 1951. These papers were filed on 11th July, 1951.

Learned Crow. Counsel takes a preliminary objection to this application on the ground that the petitioner, who has been given a right of appeal by section 43 of the Forest Ordinance, not having exercised that  right is precluded from seeking relief which he could have obtained  by way of appeal but for his laches by filing papers in revision.

Section 37 of the Forest Ordinance provides that a Forest or police officer may seize any timber or forest production respect of which a forest offence has been committed as well as all tools, boats, carts and cattle used in committing such offence. Section 43 on to prescribe that any person claiming to have an interest in property seized under section 37 may within thirty days from the date of any order passed under section 40 or 41, that is to say, an order of confiscation, present an appeal to this Court. It has been urged that the words "any person claiming to have an interest in property seized" are wide enough to include a person with an interest in the property seized but who has not appeared in Court and taken no part in any proceedings before Court. At first sight such a construction would appear to receive countenance from the very wide wording of the language, but on closer scrutiny it would be found that this contention cannot be sustained.

In Section 340 of the Criminal Procedure Code, which deals with the mode of filing a petition of appeal, there is an express requirement that the grounds of appeal should be set out. If no proceedings had taken place before the Magistrate and in fact the person interested in the property had not appeared before him at any stage before an order of codification was made, it will be difficult to set out in a petition of appeal the grounds upon which the person interested ,appeals from the order of the Magistrate. The words italicized by me are of special importance because an appeal always means an appeal from an order previously made and with which the party appealing is dissatisfied. In a case such as this the appellant can give no grounds of appeal because he has no knowledge of the reasons that would have actuated the Magistrate in making the order, for no grounds were placed before the Magistrate for adjudication, and the only ground of appeal, if one may regard it as a ground of appeal, would be that the Magistrate's order is wrong, which cert