Kalembe v. R. Crim. App. 702-M-70; 9/4/71; Mnzavas Ag. J.

Kalembe v. R. Crim. App. 702-M-70; 9/4/71; Mnzavas Ag. J.

            The appellant, a first offender and who had owned a shot-gun for 10 years, was convicted on his own plea of guilty, of Hunting Game animal with unsuitable weapons c/ss 22(3) and 53(1) (b) of the Fauna Conservation Ordinance, Cap. 302. He was sentenced to a fine of Shs. 300/- or 3 months imprisonment in default and had his shot-gun confiscated.

                        Held: (1) “As far as the confiscation order of the shot-gun is concerned; the Republic argued that he learned magistrate had no alternative but to order confiscation of the shot gun because it was mandatory that he confiscated the weapon. With due respect tot eh learned State Attorney I cannot see any such mandatory provision in the Ordinance. Section 53(2A) under which the confiscation order was made says if a person is convicted of an offence under section 22 of the Ordinance, the- “court may order that any weapon with which the offence was committed or which was in the possession of the accuse at the time of the offence shall be forfeited to the Government.” The fact that the legislature has used the phrase “the court may” and not “the curt shall” show that the court orders forfeiture at its discretion. It is not mandatory on a court to order forfeiture of a weapon.” (2)”In the present case it is shown that the appellant has owned the shot-gun for 10 years. This is his first offence under the Fauna Conservation Ordinance. He says that he uses the gun to protect his crops and those of his neighbours from wild animals. These are factors in favour of the appellant. It would appear from the record that the learned district magistrate did not take these mitigating factors into account when he decided to order forfeiture of the gun. Had he done so he would certainly have found that the order of forfeiture of the gun was unnecessary.” (3) Order of forfeiture set aside.