Three Judgments of the Court of Appeal on the confiscatory provisions of the Mines and Mineral Law in one post
OFFICER IN CHARGE
VS
MOHOMMED KALEEL MOHOMMED AZAM
Court of Appeal No: CA (PHC) 0008/21
HC Ampara Case No. HC/AMP/REV/508/19
MC Ampara Case No. 82290/S
In the matter of an application for
appeal in terms of section 11 of the High Court of the Provinces (Special
Provisions) Act No. 19 of 1990 read with Article 154 P (3) (b) of the
Constitution of Sri Lanka.
Officer-in-Charge,
Police station, Damana.
COMPLAINANT
Vs.
1. Mohommed Kaleel Mohommed Azam,
No. 22, Jummah Mosque Road,
Nainakadu, Samanthurai.
2. Kamurdeen Hizbulla, No. 218, Konawatte,
Adtalachchena 08.
ACCUSED
Ahamed Lebbe Mohommed Saleem,
No. 44/72, Kirulapone, Colombo 06.
CLAIMANT
AND NOW BETWEEN
Ahmed Lebbe Mohommed Saleem,
No. 44/72, Kirulapone, Colombo 06.
CLAIMANT -PETITIONER- APPELLANT
Vs.
Officer-in-Charge,
Police station, Damana.
COMPLAINANT -RESPONDENT - RESPONDENT
Hon. Attorney General,
Attorney General's Department, Colombo 12.
RESPONDENT -RESPONDENT
Before :
Sampath B. Abayakoon, J.
: P.
Kumararatnam, J.
Counsel : Chathura Galhena with
Dharani Weerasinghe and Devmini Bulegoda for the Claimant-Petitioner- Appellant
and Ridma Kuruwita, SC for the Respondent-Respondent
Argued on : 09-03-2023
Written Submissions : 10-01-2023 (By
the Claimant-Petitioner-Appellant)
Decided on : 06-04-2023
Sampath B Abayakoon, J.
This is an appeal by the claimant-petitioner-appellant (hereinafter referred to
as the appellant) on being aggrieved by the judgement pronounced by the learned
High Court Judge of Ampara on 09-03-2021, wherein the Revision Application
preferred by him challenging the Order dated 16-01-2019 by the learned
Magistrate of Ampara had been dismissed.
At the hearing of this appeal, the learned Counsel for the appellant intimated
to the Court that he is not contesting the facts of the matter, but making
submissions purely on two questions of law, Namely;
1. Whether the confiscated item comes
within a meaning of a vehicle or not.
2. Was the interpretation given by the learned High Court Judge in that regard
correct.
Accordingly, this Court heard the submission of the learned Counsel for the appellant as well as the submission of the learned State Counsel. This Court also had the opportunity of scrutinizing the written submissions tendered by the appellant in determining this appeal.
Facts
that led to the confiscation of the vehicle bearing registration number EP
ZA-5559 by the learned Magistrate of Ampara are, briefly as follows.
On 27th August 2017, the Officer-in-Charge of Damana police station reported
the facts to the learned Magistrate of Ampara in MC Ampara Case Number
B-5035-17, producing two suspects who allegedly have engaged in digging soil
using a loader machine and transporting the soil in a tipper truck without a
permit. Along with the B-report, he has produced the mentioned loader as well
as the tipper truck used in the transportation of the soil, along with the
other productions.
Subsequently, the two accused had been charged in MC Ampara Case Number 82290/S
on following counts.
The charge against the first accused was that he, on 25th
August 2017, used the loader numbered EP ZA-5559 to dig soil without a permit,
and thereby committed an offence punishable in terms of section 63 (1) of the
Mines and Minerals Act No. 33 of 1992 as amended by the Amendment Act No. 66 of
2009.
The charge against the 2nd accused was that he, at the same time and at the
same transaction, transported the soil that was digged, using a lorry numbered
EP LL-44168 without a permit, and thereby committed an offence punishable in
terms of section 63 (1) of the Act mentioned above.
Both
the accused had entered an unconditional plea of guilt before the learned
Magistrate when they were charged, and the learned Magistrate has imposed
sentences on both the accused.
Thereafter, the learned Magistrate has proceeded to release the vehicle which
was the subject matter of the 2nd count preferred against the 2nd accused, but
has decided to allow the parties to show cause as to why the loader used in the
commission of the 1st count should not be confiscated.
Accordingly, the appellant who was the owner of the loader has claimed the vehicle and had given evidence before the learned Magistrate. He has called witnesses to support his claim. The learned Magistrate of Ampara by his Order dated 16-01-2019 has determined that the appellant failed to show sufficient cause as to why the mentioned loader should not be confiscated and had ordered the confiscation of the said loader.
It is against this Order that the appellant has preferred an application in
revision to the High Court of Ampara.
I find that the main contention at the hearing the revision application before
the learned High Court Judge of Ampara had been that the loader which was the
subject matter of this claim by the appellant would not fall within the meaning
of machinery or equipment that would be subjected to confiscation in terms of
the Mines and Minerals Act, since a loader is classified as a vehicle in terms
of the Motor Traffic Act. It had been the contention that since 'vehicle' has
not been mentioned as an item that can be confiscated in terms of the Act, the
learned Magistrate was misdirected when he ordered an inquiry and decided to
confiscate the loader.
I find that the learned High Court Judge, after having considered the legal
principles, the intention of the legislature when the amended Act was passed,
as well as the decided cases in this regard, and other relevant facts and
circumstances into consideration, has agreed with the Order of the learned
Magistrate in dismissing the revision application of the appellant.
At the hearing of this appeal, the learned Counsel for the appellant
strenuously contended that although the learned High Court Judge has very
correctly identified the points of determination, the determination that the
loader used in the commission of the offence would fall under the category of
an equipment or machinery used in the commission of the offence, although it
had been registered as a vehicle under the terms of the Motor Traffic Act, was
a misdirection.
It was
the position of the learned State Counsel that the decided cases pointed out
are cases where the vehicles used in transportation of soil or sand were
confiscated. It was her contention that the decided Court of Appeal cases which
determined that a vehicle used in the transportation of any material that falls
within the interpretation of the Mines and Minerals Act, would not be subjected
to a confiscation order, is different to the facts and the circumstances of the
case under appeal. It was her view that the facts and the circumstances reveal
that the loader used in the commission of the offence had been used not for the
purpose of transportation but as a machinery to dig earth soil and to load the
same to the vehicle which transported the soil. It was her position that it was
the very reason why two separate charges have been framed against the two
accused before the learned Magistrate, for which they have pleaded guilty.
For the better understanding of this judgement, I would now reproduce the
section 63 B (1) of the Mines and Minerals Act as amended by Amendment Act No.
66 of 2009.
63 B (1). Where any person is convicted
of an offence under this Act, the Magistrate may make order that any mineral,
machinery, equipment or material used in or in connection with, the commission
of that offence or the proceeds of the sale of any such material, or material
deposited in Court under the proviso to section 63 A, be forfeited to the
State.
Although
it was the contention of the learned Counsel for the appellant that any vehicle
registered as a vehicle in terms of the Motor Traffic Act would not be
subjected to confiscation in terms of section 63 B (1) of the Act, I am in no
position to agree with such a contention.
I am in no position to disagree with the determination of his Lordship Salam, J. in Nishantha and Three Others Vs. The State (2014)
1 SLR 2005 and the determination by His
Lordship Dehideniya, J. in Punchirala Danapala Vs. OIC Police Station
Horowpathana and two Others CA (PHC) APN 106/15 decided
on 19-02-2016,
given the facts and the circumstances relevant to the appeals considered by
their lordships.
In both the above-mentioned instances, the vehicles that had been used for
transportation of mines and minerals had been confiscated, whereas the facts
and the circumstances in the matter under appeal is very much different.
As determined by Salam, J. in Nishantha and Three Others Vs. The State (supra),
there is no provision that has specifically mentioned that a vehicle used in
the commission of an offence in terms of the Mines and Mineral Act can be
confiscated. His Lordship has made this determination after well considering
the provisions of similar Acts where the vehicle confiscation has been
permitted.
However, it is my considered view that there should be a distinction between an
Act which specifically mentions that a vehicle used in commission of a crime is
subjected to confiscation and an Act which has omitted the term 'vehicle' but
has specifically mentioned that any mineral, machinery, equipment or material
used in or in connection with the commission of that offence would be subjected
to be forfeited to the State.
It is my view that even a vehicle registered in terms of the provisions of the
Motor Traffic Act that has been used as machinery or equipment to commit an
offence under the Act, other than transporting the mineral can, fall under the
category of a machinery or equipment, which would be subjected to confiscation.
It is abundantly clear that from the very outset of this action, the
Officer-in- Charge of Damana Police had been well aware of the distinction
between a vehicle and machinery or equipment used in the commission of an
offence under the provisions of the Act. That may be the very reason why he has
formulated two separate charges against the two accused charged before the
learned Magistrate of Ampara. He has preferred the first charge only against
the first accused for digging earth soil without a valid permit using the
loader vehicle mentioned in the charge sheet. The second charge preferred
against the second accused had been on a different basis of transporting the
soil in a truck without a valid permit.
It is
also very much evident that the learned Magistrate of Ampara was also
knowledgeable of the distinction and the cases decided by the Court of Appeal
in that regard, when he decided to release the vehicle used in transporting the
illegally cut soil while ordering the show cause relating to the loader used in
the offence of digging earth soil as to why it should not be confiscated.
I find that the learned High Court Judge in his well-considered judgement has
considered all the angles of the arguments presented on behalf of the appellant
in coming to his finding that he has no basis to interfere with the order of
the learned Magistrate.
Although the learned Counsel for the appellant contended that a loader is a
vehicle and a vehicle cannot be confiscated under the terms of the Act, as I
have stated before, it is a matter that has to be considered subjective to the
facts and the circumstances of each case.
The learned Counsel for the appellant stated at the very outset of the appeal
that he is not contesting the facts of the matter. It is clear from the charge
against the 1st accused in the Magistrate Court of Ampara, that he had been
charged for digging soil using the mentioned loader for which he has pleaded
guilty. Although a loader is a vehicle that needs registration in terms of the
provisions of the Motor Traffic Act, it becomes necessary to consider the
literal meaning of a loader in order to determine whether it falls under the
strict interpretation of a vehicle or though it may have registered as a
vehicle under the Motor Traffic Act, it can fall under a different definition.
The meaning attributed to the word loader in the Oxford dictionary is that "a
machine or a person that loads something."
The meaning given in the Cambridge dictionary is that "a machine used for putting heavy
goods onto a vehicle so they can be transported, or the vehicle used to
transport them."
In the Longman dictionary of
Contemporary English, the meaning given to the word loader is "a
machine used for loading the goods onto trucks or ships."
The above definitions clearly demonstrate that the loader used in the
commission of the offence can under no circumstances be determined as a vehicle
used in the transportation of the illegally mined minerals but used only as a
machinery used in the offence.
I am in no position to agree with the contention of the learned Counsel for the
appellant that the learned High Court Judge has gone on a voyage of discovery
to give a different meaning to the intention of the legislature when the
legislature in its wisdom omitted the name vehicle under the category of the
items that can be subjected to forfeiture in the Act. On the contrary, I find
that the learned High Court Judge has well considered the intention of the
legislature in its correct perspective to come to his determinations, for which
I have no reason to disagree with.
Accordingly, the appeal is dismissed as it is devoid of merit. The judgement
dated 09-03-2021 of the learned High Court Judge of Ampara and the order dated
16-01-2 of Ampara affirmed 019 by the learned Magistrate.
The Registrar of the Court is directed to forward this judgement to the High
Court of Ampara along with the original case records, if any, and also to the
Magistrate Court of Ampara for necessary information and action.
Judge of the Court of Appeal
P. Kumararatnam, J.
I agree.
Judge of the Court of Appeal
Court Of Appeal Law Reports Year 2016
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PHUNCHIRALAGE DHANAPALA VS. HON. ATTORNEY GENERAL & OTHERS - HON. L. T. B.
DEHIDENIYA, J - NO FORFEITURE OF VEHICLE UNDER MINES AND MINERALS ACT Court
of Appeal Case No. Phunchiralage
Dhanapala, Before
: Malinie Gunarathne J. L.
T. B. Dehideniya J. 63B. (1) Where any person is convicted of an offence under this Act, the Magistrate may make order that any mineral, machinery, equipment or material used in, or in connection with, the commission of that offence or the proceeds of the sale of any such mineral, or material deposited in court under the proviso to section 63A, be forfeited to the State. The
items that can be confiscated under this section are mineral, machinery,
equipment or material only. The vehicle used in connection with the
commission of the offence is not mentioned in this section as an item that is
liable to be confiscated. "As
far as the various confiscatory provisions in several enactments are
concerned, Court has to necessarily presume that the Legislature knew well,
the confiscatory provisions affecting vehicles contained in the Legislative
Enactments prior to the passing of the statute titled Mines and Minerals Act
and exact expression used favour confiscation of the vehicles. Hence, I am of
the view that it is not without significance that the Legislature vested with
the exclusive right to deprive the citizens of their property rights, had
clearly though it fit not to use word "vehicle" or any other words
of similar meaning in the Mines and Minerals Act" At the end, at page 13 of the judgment, it has been held that; "In
the circumstances, I set aside the order of confiscation of the vehicle as it
is not forfeitable to the state under the Provisions of the Mines and
Minerals Act. " If
there is no provision to confiscate a vehicle under the Mines and Minerals
Act, the order of the learned Magistrate confiscating the vehicle is
manifestly erroneous or otherwise it was pronounced without jurisdiction.
The
question whether delay is fatal to an application in revision depends on the
particular facts and circumstances of the case. Dealing with the question of
delay in relation to a writ of certiorari, Sharvananda J (as he then was) in
Biso Menika v. Cyril de Alwis (3) stated: "when the court has examined
the record and is satisfied the Order complained of is manifestly erroneous
or without jurisdiction the court would be loathe to allow the mischief of
the order to continue and reject the application simply on the ground of delay,
unless there are very extraordinary reasons to justify such rejection",
(emphasis added). The plea of undue delay relied on strongly by Mr. Premadasa
has to be considered in the light of the very special facts and circumstances
of this case. As stated earlier, there are several suspicious circumstances
strongly indicative of a collusive partition action. The refusal of the
application of the Petitioners for intervention in the partition action is
manifestly erroneous, considered particularly in the light of the duty
imposed by the statute on the court to ensure that the rights of persons
claiming title to the land are not placed in jeopardy by the decree sought
from court. The claim of the 2nd Petitioner was that the property belonged to
the estate of a deceased person. The matter does not rest there. The judgment
entered for the partition of the land is clearly contrary to law as there has
been a total failure by the court to investigate the title of each party. In
a situation where the order is ex-facie wrong, the Court can exercise the
revisionary power to give relief even the right of appeal is available. It
has been held in the case of Mallika De Silva V. Gamini De Silva [1999] 1 Sri
L R 85 that; Where the Order of Court is wrong
ex facie ii would be quashed by way of revision even though an appeal may lie
against such order. NISHANTHA AND 3 OTHERS VS. STATE COURT OF APPEAL Mines and Minerals act no. 33 of 1992 Section 63(6)(1) -
Transporting sand in a lorry without a license - Could the lorry be
'forfeited' - "Machinery or equipment" does it include the vehicle?
Code of Criminal procedure - Forest Conservation Ordinance Section 40,
Section 78 - Excise Ordinance no. 8 of 1912 Section 54 (1) - Offensive
Weapons Act - Section 8 - Motor Traffic (amendment) act no. 8 of 2009 Section
17(1), Section 13, Section 14 - Vehicle Ordinance Section 50, Sri Lanka ports
authority act - Customs Ordinance Section 37(2) - Coast Conservation act no.
57 of 1981 Section 31a Statutory interpretation - Duty of Court -
Constitution article 28. Held: (1) The legislature in enacting the
provisions of the mines and minerals Act in its own wisdom has adopted a
comparatively lenient and tolerant attitude with regard to the vehicle of
whatever nature that are used in the transportation of minerals and
contemplated only the machinery and equipment used in the commission of an
offence. Per Abdul Salam, J. (P/CA) "It is axiomatic that in
exercising the judicial function, courts seek to give effect to the will of
Parliament by declaring the meaning of what has been enacted. On the contrary
courts do not impute to the legislature an intention to abrogate or deprive
the citizen of their possessory rights affecting properties by attempting to
read in to the legislation what the legislature in reality did not
intend." (2) It is not without significance
that the legislature vested, with exclusive right to deprive the citizens of
their property rights had clearly thought is fit not to use the word
"vehicle" or any other words of similar meaning in the mines and
minerals Act. (3) The duty of Courts is carry out
the intention of the Parliament. It is by making sense of the enactment, the
legislative wisdom is given effect to and not by giving extended meaning to
the language, especially when such an extended meaning would result in the
deprivation of a right. Per Abdul Salam, J. "Adverting us to certain
decisions the state invited us to give effect to the confiscatory clauses in
the Act by not altering the material of which the Act as woven by
ironing out the creases. I regret my inability to respond to this invitation
in a positive manner as an interpretation given on the lines suggested by the
State would definitely alter the material of which the piece of legislation
in question in woven. As regards the wording of the confiscatory clause in
the Act, I find no creases or wrinkles in the Act and as a matter of law the
legislature in question is crease proof" Cases referred to:- (1) Shantha Vs.
Attorney General and another 1991 - 1 SLLR 201 (4) Silva Vs. Muthai 45 NLR 142 APPEAL from the
Judgment of the High Court (Ratnapura) Chathura Galhena for the
Appellants in CA 108/2012 Cur.adv.vult 03rd September
2014 This
appeal involves the confiscation of vehicles used in the transportation of
sand, contrary to the provisions of the mines and minerals Act No. 33 of 1992
[as amended] by Act No 66 of 2009. The appellants and respondents in CA 107/2012,
CA 119/2012 and CA 120/2012 have agreed to abide by this judgment, since the
only question of law that arises for determination in all these appeals and
CA 108/12 is the same. The background to this appeal needs to
be set out in a nutshell. The accused-respondent was charged in the
magistrate's Court for transporting sand without a permit, and found guilty
on his own plea. Upon such conviction under the Act,
the magistrate is left with a discretion to forfeit any, machinery or equipment, used in, or in
connection with, the commission of the offence, to the State under Section 63
(b) (1). In this case the accused stood charged
with transporting sand in a lorry without a licence. The question that arises
for determination in this appeal is whether the expression machinery and/ or
equipment can be considered as a vehicle used for the commission of the
offence. The learned Magistrate took the view
that by reason of the fact that transportation of sand being an offence and
the conveyance has been done by the use of a lorry, the term equipment and/or
machinery as used in Section 63 (b) (1) should be construed to include a
"vehicle". Discontentment in the mind of the
owner of the vehicle arising from the ruling of the learned magistrate
resulted in his electing to invoke the revisionary jurisdiction of the High
Court seeking a variation of the order. The end result of the revision
application was that learned High Court Judge affirmed the confiscation of
the vehicle concluding that a vehicle is a necessary equipment for moving a
thing from one place to another and therefore is liable to be forfeited under
the mines and minerals Act. This appeal has been preferred against the said
judgment of the learned High Court Judge. The learned High Court Judge was guided
by the meaning attributed to the words "machinery",
"equipment" and "vehicle" in the Oxford Advanced Learners
Dictionary (6th edition 2000)
and the Concise Oxford Dictionary of Current English (8th edition
1990) to give effect to section 63 (b) (1) of the Act.
An alternative definition given in the
judgment to "machinery" is machines collectively or components of a
machine or mechanism. The word "equipment" in the impugned judgment
is defined as "the things that are needed for a particular purpose or
activity" or "the necessary articles, clothing etcetera for a
particular purpose". As is referred to in the impugned
decision, as per the Oxford Advanced Learners Dictionary (6th edition 2000) and The Concise
Oxford Dictionary of Current English (8th edition
1990), the word vehicle means" a thing that is used for transporting
people or goods from one place to another or any conveyance for transporting
people, goods etcetera especially on land." Relying heavily on the meaning
attributed to the relevant expressions, the learned High Court Judge arrived
at the following conclusion. "It is the considered opinion of
this court that the vehicle is a necessary article or thing for the purpose
of transporting minerals. In that context vehicle could be considered as
equipment for the purposes of the mines and minerals Act.
The contention of the appellant is
that a vehicle cannot be forfeited in terms of Section 63 (b) (1) of the
mines and minerals Act, as vehicles are not included and therefore not meant
to be forfeited. There are several enactments which
envisage the confiscation of a vehicle used in the commission of an offence.
These enactments specifically refer to the word vehicle or such other
expression to the like effect. For purpose of a fuller discussion on
the question, I propose to refer to some of enactments in which the word
vehicle or expression to the like effect has been referred to by the
Legislature. In terms of Section 40 of the Forests
Conservation Ordinance upon the conviction of a forest related offence the tools, vehicles, implements, cattle and machines used to commit such offence,
should necessarily be
confiscated subject to the owner, if he be not the offender, being afforded
an opportunity to show cause against an order of a possible confiscation. It is quite clear that in the Forest
Conservation Act, the words machines, tools and implements have been used as
being articles subject to confiscation in addition to "vehicles"
and cattle. In the case of a cart usually drawn by cattle both the cart and
the animals are meant to be confiscated as the confiscatory clause includes
both. Significantly, Section 78 of the
Forest Conservation Ordinance defines the word vehicle as a boat, cart,
motor vehicle, tractor, trailer, container, raft, tug or any mode of
transport whether motorized or otherwise. Cattle, under Section 78
includes elephants, buffaloes, neat cattle, horses, ponies, mules, asses,
pigs, sheep, goats and the young of the same. The Animals Act - Chapter 570 of the
Legislative enactments under Section 3A, enacts that any vehicle used in the transportation of cattle without a permit shall, be
liable, by order of the convicting magistrate, to confiscation. The
excise Ordinance of No 8 of 1912 which basically deals with the law relating
to the import, export, transport, manufacture, sale and possession of
intoxicating liquor and intoxicating drugs, by section 54 identifies as to
what things are liable to be confiscated under that Ordinance when an offence
is committed against the provisions of that Law. In terms of Section 54(1)
whenever an offence has been committed under the excise Ordinance, the
excisable article, material, still, utensil, implement, or apparatus, and the
other contents, if any, of the receptacles or packages in which the same is
found, and the animals, carts,
vessels, or other conveyance used in carrying the same, shall
likewise be liable to confiscation. Under the Offensive Weapons Act, in
terms of Section 8, dealing with the powers of the police officers with
regard to a search carried out in certain premises for offensive weapons, the
Legislature specifically granted the power to the police to search vehicles for
offensive weapons by defining the word premises so as to include any place or
spot, whether open or enclosed, and
any ship, boat or other vessel, whether afloat or not, and any vehicle. In terms of motor Traffic (Amendment)
Act No 8 of 2009, any person who contravenes the provisions of Section
17(1), (13) of (14) shall be guilty of an offence and liable to the
confiscation of such motor vehicle. The Sri Lanka Ports Authority Act inter alia deals with property to be
taken into custody for purpose of confiscation under Section 66A. Where there
is reason to believe that an offence has been committed under that Act, all
equipment, tools, carts, vessels, guns, tackle, apparel, motor vehicles or any other means of
conveyance used in committing any such offence may be taken into
custody. However, such equipment, tools, carts, vessels, guns, tackle,
apparel, motor vehicles or other means
of conveyance used in the commission of any such offence shall not
be taken into custody if they are liable to be taken over under the Customs
Ordinance. In terms of Section 37 (2) of the
Customs Ordinance, if any goods are transshipped, or attempted to be removed
from one vessel to another contrary to the provisions of the Law, such goods,
together with the boat and other means
used for conveying the same, may be seized and shall be liable to
forfeiture. Coast Conservation Act No 57 of 1981
deals inter alia with the
survey, preparation, and management plan of the coastal Zone. It is aimed at
regulating and controlling the development activities within the coastal
zone. The objectives of the Coast Conservation Act are quite similar in many
ways to the mines and minerals Act. Section 31A(1) of the Coast
Conservation Act enacts that it is an offence to (a) engage in the mining,
collecting, possessing, processing, storing, burning and transporting in any
form whatsoever, of coral; (b) own, possess, occupy, rent, lease, hold or
operate kilns for the burning and processing of coral; (c) use or possess any equipment, machinery article or substance
for the purpose, of breaking up coral; and (d) use any vehicle, craft, or
boat in, or in connection with, the breaking up or transporting of any coral but
the Director, may under the authority of a licence issued in that behalf,
permit the removal of coral for the purpose of scientific research. 31A (2) states that where any vehicle,
vessel, boat, craft, machinery or other equipment is used in contravention of
the provisions of subsection (1) any Police Officer shall have the power to
seize any such vehicle, vessel, craft, boat, equipment or machinery along
with any article or substance found thereon. Further Section 31A (3) prohibits the
release of such vehicle, vessel, craft, boat, equipment or machinery seized
under the provisions of subsection (2), unless an order of court permitting
such release has been obtained. The aforementioned provisions
contained in the Coast Conservation Act demonstrate in no ambiguous manner
the obvious intention of the Legislature towards the implementation of the
scheme as embodied in that Act. In contrast, In Shantha
Vs. The Attorney-General and Another(1) in
the Court of Appeal, it was pointed out by Sarath N. Silva, J [later the
Chief Justice] that under Section 54 of the Excise Ordinance, the excisable
article or materials or the apparatus used in the commission of the offence
could have been confiscated and the motorcycle used for the transport is not
liable for confiscation. Elaborating further the Court highlighted that the
Magistrate has not indicated the provision under which the motorcycle was
confiscated and therefore set aside the order of confiscation. In Perera
Vs. Van Sanden(2) Cannon J
held that where the accused was convicted, under a defence regulation, of
buying cement without a permit and the Magistrate ordered the confiscation of
the cement, in the absence of the provision for forfeiture, in the penalties
paragraph No. 52 of the Defence (Miscellaneous) Regulations, the Magistrate
had no power to order confiscation. Section 413 of the Criminal Procedure
Code did not justify the Magistrates order as the words for the disposal of
in the Section were not sufficiently wide enough to include confiscation. The decision in Perera Vs. Van Sanden (supra) is
justified in the light of the dictum of MacDonnell CJ made in the case of Police Sergeant vs Raman Kankan(3) where His Lordship stated
that "the Courts must remember that the forfeiture or confiscation is a
penal provision and the power to confiscate should clearly be given by
law". Silva Vs Muthai(4) concerns the violation of Regulation 6 (e) of
the Defence (Purchase of Foodstuffs) Regulations, 1942, which provided that
transporting country rice from one district to another is an offence and in
such a case the vehicle or vessel in which certain produce has been
transported may, after notice to the owner of the vehicle or vessel, be
confiscated. Moseley SPJ held that the bull in the circumstances of the case
was unable to be regarded as a vehicle or vessel. In Govindan
Vs. Magoor Pitchche(5) the
accused was convicted under Section 53 (4) of the Police Ordinance, with
obstructing a public road by a sherbet cart containing sherbet, aerated
waters for sale, and was fined Rs. 5, and an Commenting on the long standing
assumptions of Statutory Interpretation Lord Diplock in Fothergill v. Monarch Airlines(6) stated that "the Court is
a mediator between the State in the exercise of its Legislative power and the
private citizen" In the case of De Saram Vs Wijesekara(6), it was held that the provisions
dealing with the disposal of properties under the Code of Criminal Procedure
is never intended to authorise a court to order the forfeiture in any case
where there is no express penal provision in law requiring or permitting
forfeiture of property on the commission of any offence. It is axiomatic that in exercising the
Judicial function, courts seek to give effect to the will of Parliament by
declaring the meaning of what has been enacted. On the contrary, Courts do
not impute to the legislature an intention to abrogate or deprive the citizens
of their possessory rights affecting properties by attempting to read into
the Legislation what the Legislature in reality did not intend. In this
particular appeal the interpretation given to the relevant Section in the
lower Courts could not have been intended by any stretch of imagination.
Deprivation of property rights should not be contemplated unless such an
intention is clearly and explicitly manifested to the rights or freedoms in
question, and has consciously decided upon abrogation or curtailment of such
rights. A reproduction of a pertinent comment
by Maxwell from the fourth edition of Maxwell on Statutes would throw light
on the concept against deprivation of rights without the expression of clear
intention. It states that it is the last degree improbable that the
Legislature would overthrow fundamental principles, infringe rights or depart
from the general system of law, without expressing its intention with
irresistible clearness. The Constitution in Article 28
promulgates that the exercise and enjoyment of rights and freedoms is
inseparable from the performance of duties and obligations, and accordingly
it is the duty of every person in Sri Lanka inter
alia to uphold and defend the Constitution and the law; to respect
the rights and freedoms of others; and to protect nature and conserve riches. As far as the various confiscatory
provisions in several Enactments are concerned, Court has to necessarily
presume that the Legislature knew well, the confiscatory provisions affecting
vehicles contained in the Legislative Enactments prior to the passing of the
Statute titled "The Mines and Minerals Act" and exact expressions
used to favour confiscation of the vehicles. Hence, I am of the view that it
is not without significance that the legislature vested with exclusive right
to deprive the citizens of their property rights, had clearly thought it fit
not to use the word "vehicle" or any other words of similar meaning
in the Mines and Minerals Act. In this background to construe the
intention of the Legislature in any other manner would amount to making the
statutory expression senseless of it and give an undue extended meaning to
the word equipment which could never have been in the contemplation of the
Law Maker even in the remotest possibility. Now, it should be crystal clear
that the Parliament had never intended to enforce through court a
draconic measure such as the one incorrectly construed in the order of the
learned Magistrate and that of the learned Judge of the High Court. To permit the construction of the
provisions regarding forfeiture in the relevant Statute unvaried, in my
opinion would amount to condoning an attempt to legislate which is not within
our domain. The duty of courts is to carry out the intention of the
Parliament. It is by making sense of the Enactment the Legislative wisdom is
given effect to and not by giving extended meaning to the language especially
when such an extended meaning would result in the deprivation of a right. It is appropriate to quote the
assertion of Lord Hoffman in R v. Secretary of State for Home Department; Ex
parte Simms [2002] 2 AC 115 at 131 where His Lordship stated that "the
principle of legality means that Parliament must squarely confront what it is
doing and accept the political costs. Fundamental
rights cannot be overridden by general or ambiguous words. This is because
there is too great a risk that the full implications of their unqualified
meaning may have passed unnoticed in the democratic process. In the
absence of express language or necessary implication to the contrary, the
courts therefore presume that even the most general words were intended to be
subject to the basic rights of the individual". A physical count of the Motor Traffic
Act shows that the word "vehicle" has been used there at 302
places. In terms of Section 240 of the Motor Traffic Act, "vehicle"
is a conveyance that is designed to be propelled or drawn by any means,
whether or not capable of being so propelled or drawn and includes a bicycle
or other peddle powered vehicle and trailer carriage, cart, coach, tram car
and mechanically propelled and/or electrically and/or solar energy propelled
vehicle or vehicle propelled by liquid petroleum gas or vehicle propelled by
alternative fuel and any artificial contrivance used or capable of being used
as a means of transportation on land but does not include a railway
locomotive. The word "equipment" is never contemplated under the
Motor Traffic Act or the other Enactments to equate it to a
"vehicle" or a mode of transport nor can it be identified as
machinery. If the Statute lacks the quality of
being unequivocal, it is left to the Parliament, in exercise of the
legislative power of the People, to look into it, and contemplate measures,
in its own wisdom for taking steps that it may deem necessary. Until then, it
is our duty to interpret it, as between the state and its subjects, unmoved
by the social conditions and/or other considerations outside the purview of
the judicial function. In terms of the same Section
"motor vehicle" means (a) any mechanically and/or electrically, and
/or solar energy propelled vehicle or vehicle propelled by liquid petroleum
gas or vehicle propelled by alternative fuel including a tractor or trailer
which is intended or adapted for use on roads but does not include a
road-roller; (b) any mechanically and/or
electrically and/or solar energy propelled vehicle, or vehicle propelled by
liquid petroleum gas or vehicle propelled for alternative fuel or intended
for use on land in connection with an agricultural or constructional purposes
such as levelling dredging, earthmoving, forestry or any similar operation
but does not include a road-roller; Under Section 50 of the Vehicles
Ordinance a "vehicle" includes carriages, carts, coaches, tram cars
and mechanically propelled vehicles, and every artificial contrivance used or
capable of being used as a means of transportation on land. The authorities cited by the learned
Senior State Counsel, in my opinion are not applicable to the present issue.
The issue before court is more in the nature of a set of non-complex facts
and how best the law could be applied to them, in the best possible manner as
stated in the statute and without stepping out from the Mines and Minerals
Act. In such an event, the only interpretation that could be and ought to be
given to the confiscatory provisions contained in the Mines and Minerals Act
is that no vehicles or other means of transport had been in the contemplation
of the Legislature, to be made subject to confiscation. The learned Senior State Counsel
contended that we must supplement the written words (machinery and equipment)
so as to give force and life to the intention of the Legislature. No doubt as
contended by the learned Senior State Counsel the court must set to work on
the constructive task of finding the intention of the legislature. However it
is to be noted that the intention of the Legislature plays an important role
only when the Statute is not clear or cannot be applied in reference to its
plain meaning. However in this case no such necessity arises to gather the
Legislative intent. He further invited us to implement this, taking into
consideration the social conditions which give rise to it and of the mischief
which it intended to prevent. Adverting us to certain decisions, the State
invited us to give effect to the confiscatory clause in the Act, by not
altering the material of which the Act is woven, but by ironing out the
creases. I regret my inability to respond to this invitation in a
positive manner, as an interpretation given on the lines suggested by the
State would definitely alter the material of which the piece of Legislation
in question is woven. As regards the wording of the confiscatory clause in
the Act, I find no creases or wrinkles in the Act and as a matter of Law the
Legislation in question is crease proof. SUNIL RAJAPAKSE, J. I agree. This being the last
decision I make, in my judicial career aggregating to a period of well nigh
three and half decades, I avail of the opportunity to acknowledge my
indebtedness to the Bar both official and unofficial for making my task
easier. A.W.A SALAM J. (P/CA) |
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