023-NLR-NLR-V-20-GOVINDEN–v.-NAGOOR-PITCHE.pdf
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In Revision.
Present : Ennis J.
GOVINDEN v. NAGOOR PITCHE.
P. C. Colombo {M. C.), 6,983.
Obstructing road—Conviction under s. 53(4), Police Ordinance, 1865—
Forfeiture of sherbetcart causingobstruction—Criminal Procedure
Code, ss. 3, 15, and 413.
Accusedwasconvictedundersection53 (4)ofthe Police
Ordinance,1865,withobstructinga publicroad by asherbet cart
containing sherbet,aerated waters, Ac., for sale,andwas fined
Rs. 5, and anorderwasmadeforfeitingthe cart andits contents.
Held, that the order as to forfeiture was wrong.
" l| is to be observed that if the value of the goods forfeited(about Rs.260 in value) be regarded, as coming within the term
' pecuniary forfeiture' in Bection 3 of the Crimifial Procedure Code,it would seem that the punishment exceeds the amount of the fineawardable under section 53 of the Police Ordinance."
Under section 413 of the Criminal Procedure. Code an order forthe disposal of propertymaybeone of forfeiture, as when knives,
guns, or clnbs are used in the commission of' an offence. In such’ a case anorderthat they are to be handed tothepolice for
custody, sale, or destruction would work a forfeiture and would come withinthe section.Wherethe property belongs to a personwhois. not a
party to the offence, itwouldbeinequitablein most, cases to make
any orderotherthanonedirecting thereturn ' oftheproperty to
the owner.
The question resolvesitselfinto one offact in each ' case, If,
for instance, the- property were “ used for" obstructing passengersan order for confiscationcouldbemade, butif it were being carried
1M7.
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1917.
Qovindenv,
Nagoor
Pfefte
along the rood and incidentally, obstructed passengers, it cannotbe said to have been "used for" the purpose of obstruction: theoffence is the consequence of an unlawful user of the property onthe one hand, and is incidental to a lawful use of the property onthe other.
The facts are set out in the judgment.
Tisseverasinghe for applicant.—The order is apparently madeunder section 413, Criminal Procedure Code. The “ disposal ” ofproperty under that section cannot be held to incrude confiscationor forfeiture. A penal provision of that kind should be expresslyenacted, and cannot be implied. When forfeiture or confiscationis intended the Legislature expressly enacts it. See sections 51and 52 of the Excise Ordinance, 1912; sections 7, 8, and 21 of theOpium Ordinance, 1910, &c. Suppose the cart had been hired bythe accused. A provision of adjective law cannot authorize anencroachment on the legal rights of the owner of the property whois not before Court.
In India, under the corresponding section 517 of the Indian Code,it has been held that such an order cannot be made. LakshmiNarayan Dutt v. Ureagan,1 Prithwegir v. Emperor.x
If it does include forfeiture, property used in the actual commissionof the offence only comes under its purview. In case of rash driving,harness, carriage, and pony cannot be confiscated or sold, Crown v.llahi Baksh;z nor a press when seditious matters have been printedin it, Bhattachariya v. Emperor;4 nor the gold ornaments found onthe accused who was afterwards convicted of criminal breach oftrust, Queen Empress v. Fattar Ghand.5
Obeyesekere, C.C., for the Crown.—An order for “ disposal ”includes an order for forfeiture or confiscation. In re Ishwar,®
Cur. adv. vult.
November 17, 1917. Ennis J.—
This application raises an intricate question. The accused wasconvicted of exposing for Ssale a sherbet cart containing sherbet,oranges, aerated waters, &c., on the side of a public road in sucha manner as to obstruct foot passengers. On his plea of guilty hewas fined Bs. 5, and an order forfeiting the cart and its contents wasmade. The affidavit of the accused in support of his applicationstates that the forfeited property is about Bs. 60 in value, and isthe only property and means of livelihood of the accused, who isonly seventeen years of age and has to support his mother. Tin*Magistrate explains that he has fixed the punishment to prevent
9 2 Grim. L. J. R. 273.
2 0 Grim. L. J. R. 639. .9 4 P. L. R. 1904.
«I. L. R. 34 Cal. 986.
«I. L. R. 24 Cal. 499.* Rat. Unrep. Gr. Casey 492.
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the accused committing the offence again, and to deter others fromcommitting a similar offence. I need not discuss the severity ofthe sentence, as the application is pressed on another point. Section53 of the Police Ordinance, No. 16 of 1865, under which theconviction is had, limits the punishment for an offence under thesection to a fine not exceeding £5 (i.c., Be. 50, see Ordinance No. 2of 1882), or imprisonment not exceeding three months; no mentionis made of a forfeiture.
Section 15 of the Criminal Procedure Code, which enumerates thepunishments which a Police Court can impose, makes no mentionof forfeiture, but ” fine,*’ which is mentioned, is defined by sectiono to include a “ pecuniary forfeiture.” The forfeiture in this case,however, is not a pecuniary forfeiture. (It is to be observed thatif the value of the goods forfeited be regarded as coming within theterm ” pecuniary forfeiture,” it would seem that the punishmentexceeds the amount of fine awardable under section 58 of the PoliceOrdinance.) It is suggested that the Magistrate acted undersection 413 of the Criminal Procedure Code, which authorizes acriminal Court to make orders ” for the disposal of any documentor other property produced before it regarding which any offenceappears to have been committed or which has been used for thecommission of any offence/'
Two Indian cases have been cited in which a similar section (517)of the Indian Code was considered. In Lakshmi Narayan Dutt v.Ureagan,* articles alleged to be stolen were found in the possessionof the informant. On a charge against the informant for givingfalse information the order forfeiting the articles was made.The High Court set aside the order, on the ground that ” section 517was never intended to authorize the disposal of property in themanner directed in this case. The object of the section is to enablethe Magistrate to direct the property to be given to some personto whom it appears to belong, or to allow it to continue in thepossession of the person in whose possession it wasv found, or to makesome order of that character.”
In Bhattackariya v. Emperor 2 an order confiscating a printingpress on a conviction for publishing seditious articles was set aside,the Judges holding: “ The first part of section (517) appears to us
; to have reference to cases of offences relating to property
or relating to documents, e.gwhere the Court directs, as in the caseof theft or criminal misappropriation or offences of similar descrip-tion, that the property which is stolen or misappropriated be restoredto its owner. The last words of the section must refer to cases ofthe same nature, i.e., to instruments like guns or swords producedin Court. The Magistrate has, under section 517, power to givedirections as to disposal of property or instruments produced inCourt, and not to direct a forfeiture.”
1917.Ennis Jl
Oovinden v.NagoorPUche
12 Crim. L. J. B. 273.
8I. L. B. 34 Cal. 986.
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1917.
Oovinden v.NagoorPitche
Both of these- cases were decided on the intention and scope-of the section. It must be remembered that the section underconsideration appears in the Procedure Code and not the PenalCode, and where a construction consonant with procedure is avail-able, it would not be right to read a highly penal provision intothe words of the section.
Under the section it is clear that an order for the disposalof property may be one of forfeiture, as when knives, guns, or clubsare used in the commission of an offence. In such a case an orderthat they are .to be handed to the police for custody, sale, or destruc-tion would work a forfeiture and would come within the section. .Where the property belongs to a person who is not a party to theoffence, it would be inequitable in most cases to make any orderother than one directing the return of the property to the owner,so the consideration of the point can be limited conveniently tocases in which the property belongs to the accused. This appearsto have been the position in both the Indian cases mentioned, butin neither of them has it been enunciated clearly when an orderworking a forfeiture can be made and when it cannot.
In considering the matter it is desirable- to take an illustration;.e.g., a baulk of timber belonging to an accused may (1) be used asa battering ram for the commission of house-breaking, and (2) beexposed on the public road in such a manner as to obstruct passen-gers. 'May an order for forfeiture be made in the one case and notin the other? The illustration sufficiently shows that the kind orvalue of the property does not affect the question. In my opinionthe distinction lies in the words “ used for." When can propertyproperly be said to b,e “ used for ’’ the commission of an offence?In the case of the printing press mentioned above, the Judges added:" We are also of opinion that the press could not be said to havebeen used for the commission’ of the offence in the same way as-a gun, sword, or dagger. The offence' was publication and' notprinting, and the press is a remote instrument."
In my opinion the question resolves itself into one of fact in eachcase. In the illustration I have given, if the baulk of timber wereused for the purpose of obstructing passengers an order for confis-cation could be made, but if it were being carried along the roadand incidentally obstructed passengers, through want of care inthe transport or otherwise, although it may be said to have been“ exposed so as to obstruct passengers," it cannot be said tohave been “ used for ” the purpose of obstruction; the offenceis the consequence of an unlawful user of the property on theone hand, and is incidental to a /lawful use of the property onthe other.
I doubt if any statutory offence as distinct from an offence underthe Penal Code would ever, in the absence of express provisionjustify an order for forfeiture. In the present case the- sherbet
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cart was being used for street sales, and not for the purpose ofcommitting the offence of obstruction. In* the circumstances I setaside the order for forfeiture.
Since the above was written I have seen the reports of two otherIndian cases. In re Ishwar 1 and Queen Empress v. Bcera, 2 butthey afford no assistance on the question as to when an order forforfeiture can be made, but they show that the section underconsideration has no extensive application.
1917.
ENOT8 J.
Chvinden
Nagoor
Pitche
Set aside.