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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
SC Appeal No. 249/2017 SC SPL LA No. 231/2017
Court of Appeal Case No: CA (PHC) APN 04/2017
High Court Monaragala Case No: HC 79/2014
Argued on : 12.12.2023
Decided on : 20.02.2024
K. PRIYANTHA FERNANDO, J
2.
This Court granted
leave to proceed on the questions of law in sub paragraphs (c) and (e) of the petition
dated 19.10.2017. However, at the
argument of this application, both Counsel confined their submissions to the question
of law referred to in paragraph 19(c)
of the petition dated 19.10.2017 and submitted that they would be
satisfied if the question of law set out in paragraph 19(c) would be decided by
this Court.
Question of law
19(c) – Did the Judges of the Court of Appeal misdirect themselves when they failed to consider that there is no necessity for the owner of the vehicle to show that he has taken all precautions to prevent the use of the vehicle for the commission of an offence when an inquiry is held under Poisons Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984.
Facts in brief.
3.
The appellant in the
instant case is a businessman by profession. The appellant has been the
registered owner of the vehicle
bearing No. SP PE 1214, which is a black-coloured Toyota double cab. On
28.03.2013 the elder
brother of the appellant W.M. Sampath
Preethi Viraj (hereinafter
referred to as the accused) has asked the appellant if he could borrow the
appellant’s vehicle for the purpose of bringing a paddy harvesting machine. Admittedly, the appellant has permitted the accused to borrow the vehicle. The accused has been
an ex-police officer who has been interdicted from his services.
4.
At about 5:30 p.m. on the same day, the appellant
became aware that the accused
has been arrested by the Thanamalwila Police.
Thereafter, the appellant along with the wife of the accused has gone to the
said police station. On arriving at the police station, they have come to know that the accused
has been arrested
by the Special Task Force (STF) on the allegation of transporting
Cannabis Sativa (Ganja).
5.
Thereafter, the
accused has been produced before the Magistrate’s Court of Wellawaya along with the productions which included the vehicle in question. Upon an application by the appellant, the learned Magistrate has released the vehicle in question to
the appellant after entering into a bond.
6.
The accused has been
indicted in the High Court of Monaragala for the charges of trafficking and possession of 106 kg and 105 grams
of Cannabis Sativa. Upon pleading guilty to the charges that were levelled
against him, the High Court has convicted him for the said charges and imposed
a sentence of imprisonment and suspended it for a period of 10 years along with
a fine.
7. Subsequent to the conviction of the accused, the learned Judge of the High Court has afforded an opportunity for the appellant to show cause as to why the vehicle in question which was used for the commission of the offence should not be confiscated. Both the appellant and the accused has given evidence at the inquiry. The learned Judge of the High Court, by his Order dated 06.12.2016 [P- 1(e)] has refused to release the said vehicle to the appellant and has ordered that the vehicle be confiscated.
8.
Being aggrieved
by the Order of the learned Judge of the High Court, the appellant has preferred a
revision application against the said Order to the Court of Appeal which was
listed under No. CA (PHC) APN 04/2017 [P-1(f)].
The learned Judges of the Court of Appeal, by Order dated 14.09.2017 [P-1(i)],
dismissed the appellant’s application for revision. Being aggrieved by the Order
of the learned Judges of the Court of Appeal, the appellant preferred
the instant appeal to this Court.
Written Submissions in respect of the
appellant.
9.
At the argument of this appeal,
the main submission which was made by the
learned President’s Counsel for the appellant was that, as the law stands under section 79 of the Poisons Opium and
Dangerous Drugs (Amendment) Act No. 13 of 1984, there exists
no requirement for the owner of a vehicle to prove that he took all
necessary precautions to prevent the use of such vehicle for the commission of
the offence. It was his submission that the learned Judge of the High Court has
erred in including an additional requirement on the appellant which is not
stipulated in the Poisons, Opium and Dangerous
Drugs (Amendment) Act No. 13 of 1984. It
has been imported from section 40 of the Forest Ordinance and section 3A of the Animals Act. The High Court has applied
additional legal burden on the appellant by importing provisions from other statutes. The learned President’s Counsel stated
further, that it is the duty of the Parliament to legislate, and Courts should not include provisions that the
legislature has not included. Therefore,
it was his position that a literal interpretation of the words of the statute
should have been used.
10.
The learned
President’s Counsel for the appellant submitted further that, in the case of Manawadu v. The Attorney
General [1987] 2 SLR 30 considered the vehicle
confiscation provision under the Forest
Act which demonstrates that there is no automatic confiscation or forfeiture of a vehicle where the registered
owner of the vehicle is not the person convicted for the offence (where the
registered owner of the vehicle is a third party). It was his position that the
said interpretation should be given by the Court which was “in pari materia”.
11.
It was also
submitted that, where the owner of the vehicle had no role to play in the commission of the offence
and is innocent, then the
forfeiture of his vehicle would amount to an arbitrary expropriation since he
was not a party to the commission of any offence. Therefore, it was his submission that, in a similar light, under the provisions of
the Poisons Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of
1984, an Order of confiscation can
only be made where, either the owner himself is convicted of the offence, or if
the owner permitted the vehicle to be used by the convict with the knowledge
that it was going to be used in the
commission of such offence. It was his submission that the opportunity should
be provided for the owner of the vehicle to prove this on a balance
of probabilities. It is imperative for the owner of
the vehicle to be heard before an Order of confiscation is made.
12.
The learned
President’s Counsel submitted further that the learned Judges of the Court of
Appeal by their Order dated 14.09.2017, has erred in concluding that the owner
of the vehicle has the burden to prove that he had no knowledge of the Commission of the offence
and that he took all necessary steps
to prevent the offence being committed and this amounts to a
misapplication of the law.
13.
The learned State
Counsel for the respondent while conceding that the law relating to confiscation of a vehicle under the Poisons
Opium and Dangerous Drugs Ordinance has not been amended, also pointed out that, when compared to
present times, dangerous drugs were not so much of a menace at the time. The learned State Counsel also submitted that, there
is nothing wrong in imposing an additional criteria to the statute.
He further submitted
that, giving a literal
interpretation to the words of section 79 of the Poisons Opium and Dangerous Drugs (Amendment) Act No. 13 of 1984 would be too restrictive.
14.
It was his
submission that even “Manawadu” did
not use a literal interpretation of the words of the statute. Further, the
Court is not bound to follow “Manawadu” merely
because the Forest (Amendment) Act No. 65 of 2009 was not in place during the
time “Manawadu” was decided.
15.
The learned State
Counsel submitted that, the honorable Judges of the High Court
and Court of Appeal were correct in taking the
position that the appellant has not shown on a balance of probabilities that he has taken all
precautions to prevent the use of such vehicle for the commission of the
offence or that he had no knowledge. When considering the quantity of dangerous
drugs that the accused was in possession of, which amounted
to 106 kg and 105 grams of
Cannabis Sativa which is not a small quantity, it ought to be preplanned and the owner of the vehicle (appellant) ought
to have known about this. Further, the evidence of the appellant portrays that
he was aware that the accused had a criminal record, and therefore the
appellant ought to have taken all necessary precautions.
Analysis
16. Section 79 of the Poisons, Opium and Dangerous Drugs Ordinance is the relevant provision that deals with vehicle confiscation. The latest amendment that was made to the Poisons Opium and Dangerous Drugs Ordinance was by way of Act No.41 of 2022. However, the last amendment that was made to section 79 of the said Ordinance has been by way of Act No. 13 of 1984. Accordingly, section 79 of the Poisons, Opium and Dangerous Drugs (Amendment) Act No. 13 of 1984 sets out that,
Section 79
“(1). Where any person is convicted of an offence against
this Ordinance or any regulation made thereunder the court shall order that all
or any articles in respect of which the offence was committed and any boat,
vessel, vehicle, aircraft or
air-borne craft or equipment which has been used
for the conveyance of such article shall, by reason of such conviction, be
forfeited to the State.
(2). Any property
forfeited to the State under subsection (1) shall -
(a)
if no appeal has been preferred to the Court of Appeal
against the relevant conviction, vest absolutely in the State with effect from
the date on which the period prescribed for preferring an appeal against
such conviction expires
;
(b)
if an appeal has been preferred to the Court of Appeal
against the relevant conviction, vest absolutely in the State with effect from
the date on which such conviction is affirmed on appeal.
In this subsection " relevant conviction" means the conviction
in consequence of which any property is forfeited to the State under subsection (1).”
17. It is clear that the above section does not include a special provision with regard to a situation where the owner of the vehicle which was used for the commission of the offence is a third party. Both the learned President’s Counsel and the learned Counsel for the State have conceded to the fact that section 79 of the Poisons, Opium and Dangerous Drugs Act has not been amended since 1984.
18. The learned President’s Counsel for the appellant brought the case of Manawadu(supra) to the attention of this Court and submitted that, according to “Manawadu” there can be no automatic confiscation of a vehicle where the owner of the vehicle is a third party. He elaborated that in such a situation, on the lines of “Manawadu” the third-party owner must be heard before an Order of confiscation is made.
19. The case of Manawadu(supra) has been decided on 11.02.1987 and is in reference to section 40 of the Forest Ordinance as amended by Act No. 13 of 1982. A further amendment has been brought to the Forest Ordinance by way of Act No. 65 of 2009.
20. Section 40 of the Forest Ordinance as amended by Act No. 13 of 1982 (the position under which “Manawadu” was decided) sets out that,
“(1) Upon the conviction of any person for a forest offence
-
(a) all timber or forest produce which is not the property of the State in
respect of which such offence has been committed; and
(b)
all tools, boats, carts, cattle and motor vehicles used in committing
such offence (whether such tools, boats, carts, cattle and motor vehicles are
owned by such person or not,
shall, by reason
of such conviction, be forfeited to the State.”
24. Sharvananda CJ in “Manawadu”, after an extensive analysis of the various case law surrounding the principles of natural justice held that,
(14) that "forfeited" meant "liable to be forfeited. " and thus avoid the injustice that would flow on the construction that forfeiture of the vehicle is automatic on the conviction of the accused. Having regard to the above rules of construction, I am unable to hold that the amended subsection 40 excludes by necessary implication the rule of 'audi alteram partem'. On this construction the petitioner, as owner of lorry bearing No. 26 Sri 2518 is entitled to be heard on the question of forfeiture and if he satisfies the court that the accused committed the offence without his knowledge or participation, his lorry will not be liable to forfeiture.” [Emphasis mine]
25. Sharvananda CJ with Atukorale J agreeing and Seneviratne J dissenting allowed the appeal and directed the Magistrate to hear the petitioner who was the owner of the vehicle in “Manawadu” on the question of showing cause as to why the petitioner’s vehicle is not liable to be forfeited.
27. Be that as it may, after the case of Manawadu(supra) was decided, the law has been subject to amendment. Amendments were made to the Forests Act No. 13 of 1982, by way of Act No. 84 of 1988, Act No. 23 of 1995 and finally as the law stands today, by way of Act No. 65 of 2009.
28. Section 40 of the Forest Ordinance as amended by Act No. 65 of 2009 sets out that,
Section 40
“(1) Where any person is convicted of a forest offence -
(a) all timber or forest produce
which is not the property of the State in respect of which such offence has
been committed; and
(b)
all tools, vehicles, implements, cattle and machines used in committing
such offence,
shall in addition to any other
punishment specified for such offence, be confiscated by Order of the
convicting Magistrate:
Provided that in any case where the owner of such tools, vehicles, implements and machines used in the commission of such offence, is a third party, no Order of Confiscation shall be made if such owner proves to the satisfaction of the Court that he had taken all precautions to prevent the use of such tools, vehicles, implements, cattle and machines, as the case may be, for the commission of the offence.” [Emphasis mine]
29.
A proviso to section 40 was added by way of Act No. 65 of
2009 as emphasised above. Thus, the section
explicitly provides the position of a third-party owner of a
vehicle which has been used in the commission of an offence under this Act.
Accordingly, there would be no automatic confiscation of the vehicle in
question where the owner of the vehicle is a third party so long as the
third-party owner is able to satisfy Court that he had taken all precautions to
prevent the use of such vehicle for the commission of the offence. The burden of proving such position is
clearly on the third-party owner.
30. While the Forest Act No. 65 of 2009 clearly sets out this position, as observed earlier, section 79 of the Poisons Opium and Dangerous Drugs Ordinance as amended by Act No. 13 of 1984
has not been amended to this effect.
Hence, it was the position
of the learned President’s Counsel for the appellant that the
additional burden of proving that “…he had taken all precautions
to prevent the use… for the commission of the offence…
” should not be imposed on the
appellant. It is his position that a literal interpretation is appropriate.
31.
Section 79(1) of the Poisons, Opium and Dangerous Drugs
(Amendment) Act No. 13 of 1984 sets out that,
“79 (1). Where any person is convicted of an offence
against this Ordinance or any regulation made there under the court shall order
that all or any articles in respect of which the offence was committed and any
boat, vessel, vehicle, aircraft or
air-borne craft or equipment which has been used
for the conveyance of such article shall, by reason of such conviction, be
forfeited to the State.
32. A literal interpretation of section 79(1) of the Poisons, Opium and Dangerous Drugs Act would mean that, regardless of who the owner of a vehicle may be, the vehicle that has been used for the conveyance of the article which amounts to an offence, shall upon conviction be forfeited to the state. It does not contain a proviso with regard to the position of a third-party owner of a vehicle. Therefore, providing a literal interpretation to section 79(1) of the Poisons, Opium and Dangerous Drugs Act under the facts and circumstances of the instant case would still mean that the vehicle bearing No. SP PE 1214 would be confiscated to the state as in plain meaning, the section lays down that “all or any articles in respect of which the offence was committed and any boat, vessel, vehicle, aircraft or airborne craft or equipment which has been used for the conveyance of such article shall, by reason of such conviction, be forfeited to the State”.
Animals Act was also brought
to the attention of Court.
Section 3A of the Animals Act No. 10 of 1968 as amended
by Act No. 10 of 2009 sets out that,
Section 3A
“Where any person is convicted of an offence
under this Part or any regulations
made thereunder, any vehicle used in the commission of such offence shall, in
addition to any other punishment prescribed for such offence, be liable, by
order of the convicting Magistrate, to confiscation:
Provided, however, that in any case where the owner of the vehicle is a third party, no order of confiscation shall be made, if the owner proves to the satisfaction of the Court that he has taken all precautions to prevent the use of such vehicle or that the vehicle has been used without his knowledge for the commission of the offence.” [Emphasis mine]
36. This Court cannot in good conscience ignore the development of the law surrounding the position of a third-party owner of a vehicle, whose vehicle has been subject to confiscation. Neither can this Court ignore the fact that dangerous drugs have evolved to be a menace in society in the recent past. The law evolves with time and it is the duty of the Court to interpret the law in a manner so as to suit changing times. Further, as the intention of the legislature is understood, there would be no usurpation of its power by the judiciary.
Extension of this rule of context permits reference to other statutes in pari materia i.e. statutes dealing with the same subject-matter or forming part of the same system. It is to be a right and duty to construe every word of a statute in its context. The word context in its widest sense include ‘other statutes in pari materia’.
[‘Legal Maxims & Phrases’ by Nanda Senanayake Attorney-at-law at page 319]
39. Further, where one relies on the position that a third-party owner of a vehicle must be treated differently and that there should be no automatic confiscation and that a hearing should be accorded to such a person, as set out under the Forest Ordinance and the Animals Act, the proviso in its entirety should be considered. One cannot simply request that the proviso should be applied to the extent where it is beneficial to them. The proviso is conditional on the word “if”. The benefit of the proviso could only be attained if the owner of the vehicle proves to the satisfaction of the Court that he has taken all precautions to prevent the use of the vehicle in question or that the vehicle has been used without his knowledge.
40. The knowledge on the commission of the offence and taking necessary precautions to prevent the commission of the offence are to an extent interwoven. In this regard, it is pertinent to consider what was stated by His Lordship S.N. Silva as he was then, in the case of Faris v. The Officer-In-Charge, Police Station, Galenbindunuwewa and Another [1992] 1 SLR 167.
Westminster City Council
v Croyalgrange Limited
And Another [1986] 83 Cr.App.R.
155 at 164, Lord Bridge in his dictum said that,
“…
It is always open to the tribunal of fact… to base a finding of knowledge on
evidence that the defendant had deliberately shut his eyes to the obvious or
refrained from inquiry because he suspected the truth but did not wish to have
his suspicion confirmed.”
(Archbold Criminal Pleading evidence
and practice 2019 at page 2153)
42. This applies to criminal cases in which knowledge being the mens rea requirement, is imperative to prove the offence. In the instant case, the appellant was well aware that the accused who was his brother was a police officer who had been interdicted from his services for various alleged offences and malpractices. Therefore, it was for the appellant to be vigilant when permitting the accused whose character was in question to borrow the vehicle.
45.
Thus, in answering the question of law that has been raised by the
appellant, the Honorable Judges of the Court of Appeal have not misdirected
themselves. For the reasons that I have provided above, I affirm the Order of
the learned High Court Judge and the Order of the Court of Appeal.
The appeal is dismissed.
JUDGE OF THE SUPREME COURT
JUSTICE E. A. G. R. AMARASEKARA.
I agree
JUDGE OF THE SUPREME COURT
JUSTICE A.L. SHIRAN GOONERATNE.
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