Section 666

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In the Court of Appeal of the Democratic socialist Republic of Sri Lanka
In the matter of an appeal in terms of Article 154 P (3) (b) read with Article 154 P (6) & 138 (1) of the Constitution read with section 5 of the High Court of the Provinces (Special Provisions) Act No.19 of 1990.
                        H.C. Kandy 137/98(REV)

                        M.C. Dambulla 663/98 AR

                        C.A(PHC) 234/02
The Officer-in-Charge,
Police Station,
Galewela.
COMPLAINANT
VS.
1.     A.K. Lahirdeen
7th Mile Post,
Madipola.

2.     Abusally Akbar,
No.1, 7th Mile Post,
Madipola, and presently of 
329, Kalawewa, Vijithapura.

RESPONDENTS

And

Abusally Akbar,
No.1, 7th Mile Post,
Madipola, and presently of 
329, Kalawewa, Vijithapura.
PETITIONER
VS.
A.K. Lahirdeen
7th Mile Post,
Madipola.
RESPONDENT-RESPONDENT
The Officer-in-Charge,
Police Station,
Galewela.
COMPLAINANT-RESPONDENT

AND NOW BETWEEN
A.K. Lahirdeen
7th Mile Post,
Madipola.
RESPONDENT-RESPONDENT-
APPELLANT
Vs.
Abusally Akbar,
No.1, 7th Mile Post,
Madipola, and presently of 
329, Kalawewa, Vijithapura.
RESPONDENT-PETITIONER-
RESPONDENT
The Officer-in-Charge,
Police Station,
Galewela.
COMPLAINANT-RESPONDENT-
RESPONDENT

Before :  W LR Silva J and A W A. Salàm J.
Counsel : Appellant absent and unrepresented. Farook Thahir with M S M Faris for the respondent.
Argued on : 25.06.2009.
Decided on :  29.06.2009

A.W.Abdus Salàm J
The respondent-respondent-appellant (hereinafter referred to as the "appellant") has preferred the present appeal to challenge the propriety of the judgment of the learned High Court judge of Kandy dated 30 October 2002. By the said impugned judgment, the learned High Court judge set aside the order of the learned magistrate dated 31st of August 1998 and directed that vehicle be handed over to the respondent-petitioner-respondent (hereinafter referred to as the "respondent").

The facts briefly are that in the course of an investigation over a dispute between the appellant and the respondent, the officer in charge of Galewala police station took vehicle bearing No 53 -7475 to his custody from the possession of the "respondent" and produced the same in the Magistrate's Court. The learned magistrate after a lengthy inquiry ordered the restoration of the vehicle to the custody of the "appellant” on the misapprehension that it has to be handed over to the registered owner.

Upon the revisionary jurisdiction of the High Court being invoked to challenge the legality of the order of the Magistrate, the learned High Court judge reversed the order inter alia on the grounds that the vehicle in question had not been seized under section 29 of the Criminal Procedure Code, that it is not alleged or was suspected to have been stolen and that it had not been found under any circumstances creating the suspicion of the commission of an offence.

In setting aside the order, the learned High Court judge proceeded on the authority that when a police officer seizes any property alleged to have been stolen, but does not proceed with the case the magistrate has no jurisdiction to order the restoration of the property to any person other than the one from whose possession it was taken.

Significantly, no criminal prosecution has been filed against the respondent in regard to the dispute the parties have had over the vehicle in question. In the circumstances, the learned High Court judge had no alternative but to set aside the order of the learned magistrate and to hand over possession of the vehicle to the "respondent". As such the appeal preferred does not merit any favourable consideration. Hence, the appeal stands dismissed subject to costs.

                                                                   Judge of the Court of Appeal

I agree.
W L R Silva J

 Judge of the Court of Appeal

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