Mines and minerals confiscation for merge

IN THE COURT OF APPEAL OF THE DEMOCRATIC

SOCIALIST REPUPLIC OF SRI LANKA.

CA 120/2012.

1. M C NISHANTHA

2. P N WIJEPALA

3. W M HEENMENIKE

4. W W INDIKA RUWAN

CLAIMANT-PETITIONER-APPELLANTS IN

CA 120/2012, CA 108/2012, CA 107/2012

and CA 119/2012.

BEFORE: A.W.A SALAM, J (PRESIDENT) &

SUNIL RAJAPAKSE, J

COUNSEL: IN CA 107/2012, CA 119/2012, 120/2012, – M C M

MUNEER AND IN CA 108/2012 CHATHURA GALHENA FOR THE

APPELLANTS AND THUSITH MUDALIGE SSC FOR THE STATE.

ARGUED ON: 17.2.2014

DECIDED ON 03.09,2014.

A W ABDUL SALM, J (P/CA).

9

his 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 19921 [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.

T

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 permit2,

and found guilty upon 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 license. The question that arises for

determination in this appeal is whether the expression

1 hereinafter referred to as the “Act”2 which is an offence under Section 28(1) of the Mines and Minerals Act

(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).

19/2012 JUDGMENT - 03RD SEPTEMBER 2014 A W A SALAM,

(P/CA)

MINES AND MINERALS ACT

SALAM ABDUL

9

“machinery and/or equipment” can include 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 revision 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 (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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English (8th edition-1990) to give effect to Section 63 B (1) of

the Act.

According to the dictionary meaning relied upon by the

learned High Court Judge “machinery” means, machines as a

group, especially large ones, agricultural/industrial machinery

and the parts of the machine that makes it works. 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 (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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following conclusion.

“it is the considered opinion of this court that the vehicle

is a necessary article or thing for the purpose of

transporting mineral. In that context vehicle could be

considered as equipment for the purposes of the Mines

and Minerals Act.

This court is of the view that the learned magistrate had

not erred himself in law, when he made orders, while

holding that word “equipment” has to be interpreted for

the purposes of the Mines and Minerals Act to include

the “vehicles” as well3”.

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

3 Vide page 5 of the impugned judgment- paragraphs 2 and 3.

(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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refer to some of the 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, is afforded an opportunity to

show cause against an order of 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.(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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 (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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) No 8 of 2009, any

person who contravenes the provisions of Section 17 (1), (13)

or (14) 17 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

liable for confiscation to be taken into custody under Section

66 A. 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 (2) of the Customs Ordinance, if any goods are

transhipped, or attempted to be removed from one vessel to (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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.

31 A (2) states that where any vehicle, vessel, boat, craft, (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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 31 A (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, no such draconically worded scheme to confiscate

vehicles is introduced in the commission of an offence under

the Mines and Minerals Act. 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 vehicles of whatever nature that are used

in the transportation of minerals and contemplated only on

the machinery and equipment used in the commission of the

offence. (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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In Shantha Vs The Attorney-General and Another 1991 1 S L

R 201 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 46 NLR 383 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

Magistrate's order as the words "for the disposal of" in the

section were not sufficiently wide enough to include

confiscation.

(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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The decision in Perera Vs Van Sanden 46 NLR 383 is justified

in the light of the dictum of MacDonnell CJ made in the case

of Police Sergeant vs Raman Kankani 37 NLR 187 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 45 NLR 142 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 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 20 NLR 115 Govindan Vs Nagoor Pitchche 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

order was made forfeiting the cart and its contents. Ennis J

held that the order as to forfeiture was wrong.

(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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Commenting on the Long standing assumptions of Statutory

Interpretation Lord Diplock in Fothergill v. Monarch Airlines

stated that “the Court is a mediator between the State in the

exercise of its Legislative power and the private citizen”

[1981] A.C. 251, 279.

In the case of De Saram Vs Wijesekara 4 CWR 403, 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 (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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contemplated unless such an intention is clearly and explicitly

manifested, indicating that the Legislature had directed its

attention 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 (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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Enactments are concerned, Court has to necessarily presume

that the Legislature knew well, the confiscatory provisions of

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 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 no sense 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 to remain unvaried, in my

opinion would amount to condoning an attempt to legislate (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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 (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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 as under the Motor Traffic

Act or the other Enactments to equate it to a “vehicle” or a

mode of transport. It cannot neither 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 measures that 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 (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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

purpose 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. In such an event, the only interpretation that (1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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. He 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 creaseproof.

(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


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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.

This judgment would be applicable with necessary changes to

appeals bearing numbers CA 108/2012, CA 107/2012 (PHC)

and CA 119/2012 (PHC.

President/Court of Appeal

Sunil Rajapakse, J

I agree.

Judge of the Court of Appeal

Post scriptum

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

(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4).


(P/CA)


SALAM ABDUL

Mines and minerals confiscation for merge

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