MACDONELL C.J.—Bartholomeusz v. Sinnetamby.
Present: Macdonell C.J.
BARTHOLOMEUSZ v. SINNETAMBY445—P. C. Kandy, 35,673
Excise Ordinance—Notification prohibiting sale of ganja under s. 16 (?) —Rules passed subsequently under s. 31—Effect of subsequent notification—Ordinance No. 8 of 1912, ss. 16 and 31.'
Where the Governor, in exercise of the powers vested in him by section16 (3) of the Excise Ordinance, issued a notification prohibiting thepossession of ganja,—
Held, that the notification in question was not affected by a notificationmade under section 31 of the Ordinance by which the Governor purportedto repeal all the rules previously made under the Excise Ordinance.
PPEAL from a conviction by the Police Magistrate of Kandy.
Soertsz, for the accused, appellant.
M. de Silva, Deputy S.-G. (with him Deraniyagala), for theAttorney-General.
December 3, 1931. Macdonell C.J.—
In this appeal it is quite clear that the finding on the facts is correct.
The only point really before me is this point of law which has beenraised. To decide it, we must understand what the Interpretation Ordi-nance, No. 21 of 1901, lays down, particularly section 11 (1)(a),
where it says that a rule may at any time be amended or revoked bythe same authority and in the. same manner by that in which • it Wasmade, and this provision is supplemented – by section 11b- of thesame Ordinance, which says that, where an Ordinance confers powerto make any instrument, that is to say, any orders, rules, or regula-tions, expressions used in the instrument shall, unless the contr£iry
intention appears, have the same respective meanings as in the Ordi-nance conferring the power. If we keep these sections in mind—andI am very much obliged to learned counsel for drawing my attentionto them—then the difficulty raised on the appeal disappears. TheGovernor in Executive Council is by section 16 (3) of the Excise Ordi-nance, No. 8 of 1912, empowered to issue an instrument, that is to say, anorder by means of notification, prohibiting the possession by any personthroughout the whole Island of any excisable article, and by ExciseNotification No. 26 he has exercised that power with regard to the excis-able article known as ganja. Then applying section 43, we find thata person who possesses ganja does so in contravention of “ an ordermade under this Ordinance ” and, if so, is punishable accordingly. It isperfectly true that under an entirely different section, number 31, theGovernor has in accordance with the powers given him by that sectionmade an instrument, that is to say, certain rules, which rules are to befound in Excise Notification No. 135 (see again section 11 (1) (a) of theInterpretation Ordinance). The authority by which the Governor makesthese rules is to be found in section 31 of the Excise Ordinance which is. anentirely different one from the authority, section 16 (3), under whichhe has made the order to be found in Excise Notification No. 26. 'Conse-quently when Excise Notification No. 135 purports to repeal, all rulespreviously made under the Excise Ordinance, No. 8 of 1912, it does notdo anything more than it has power to do, it repeals all rules made underthe authority of section 31 of the Ordinance. It does not repealorders made under a different authority, namely, section 16 (3) of theOrdinance, nor does it purport to do so. I am quite satisfied that thisdisposes of the appeal before me, and in support of it one can look at thecontents of the Notification No. 135 which are in their subject-matterquite different from the contents of Notification No. 26. I am quitesatisfied that Excise Notification No. 26 is still of full force and effectand also, although it is not necessary.for the decision of this case, Notifica-tion No. 46. For the foregoing reasons I am of opinion that this appealmust be dismissed.
BARTHOLOMEUSZ v. SINNETAMBY