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).

T
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.
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

“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)
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

and The Concise Oxford Dictionary of Current 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). 19/2012

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 refer to some of the Enactments in
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). 19/2012

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). 19/2012

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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

transhipped, 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.
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

31 A (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 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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

and contemplated only on the machinery and equipment used
in the commission of the offence.
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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

include confiscation.
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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

made forfeiting the cart and its contents. Ennis J held that the
order as to forfeiture was wrong.
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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

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, 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.
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

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 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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

in the relevant Statute to remain 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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

“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 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.
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

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
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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

possible manner as stated in the statute and without stepping
out. 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. 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
(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

the Act and as a matter of Law the Legislation in question is
creaseproof.
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). 19/2012

(1.) CA 120/2012 – (2). CA 108/2012- (3). CA 107/201 (4). 19/2012

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