Weerasinghe v. Kathirgamalhamby
1957Present:T. S. Fernando, J.I). WEERASINGHE, Appellant, arul KATHIRGAMATHAMBY and
S. C. 451—M. G. Trincomalee, 17,443
Fisheries Ordinance, No. 24 of 1940—Sections 14 and 22 (3)—“ Conspires ”—Common
intention—Penal Code, s. 32—Applicability to statutory offences.
By section 22 (3) of the Fisheries Ordinance :—
" Any person who attempts or conspires to commit any offence under thisOrdinanco shall he deemed to be guilty of that offence. ”
Held, that the word “ conspires ” should be given its ordinary meaning, viz.,plots or combines secretly for an unlawful purpose.
Quaere, whether section 32 of the Penal Code relating to “ common intention ”is applicable in a case where persons are charged with the commission of anoffence other than an offence under the Penal Code.
^^PPEAL from a judgment of the Magistrate’s Court, Trincomalee.
V. 8. A. PuTlenayegum, Crown Counsel, for the Attorney-General.
No appearance for the accused-respondents.
1 (1958) 59 N. L. It. 481.
Our. adv. wit.
T. S. FE-RXAXDO, J.—Weerasinghe v, Katkirgamatkamby
October 30, 1957. T. S. Fernando, J.—
The two accused-respondents and another were charged in the Magis-trato’s Court with using explosives or a stupefying substance for thepurpose of killing or stupefying fish in breach of seotion 14 of the FisheriesOrdinance, No. 24 of 1940, an offence punishable under section 22 a (1)of the same Ordinance, as amended by the Fisheries (Amendment) Act,No. 25 of 1952. At the end of the trial, the accused-respondents wereacquitted, but the other man charged along with them was convicted andsentenced to pay a fine of Rs. 500, in default 3 months’ rigorous imprison-ment. The complainant has appealed against the acquittal of the tworespondents.
The evidence accepted by the learned Magistrate shows that the res-pondents and the convicted man were in a boat at sea about 40 yardsfrom the shore, and the convicted man was seen to stand up in the boat,raise both his hands together and throw something into the water where-upon there was an explosion in the water near the boat. One of the res-pondents was thereafter seen jumping from the boat into the sea andcollecting fish with the aid of a ring net, while the other respondent keptthe boat in position on the water. After some time the respondent whojumped into the water and collected fish got back into the boat and allthree rowed off towards the beach. When the boat was about to beach,preventive officers of the Fisheries Department rushed up, but tho threemen rowed off without beaching, paying no heed to the calls of the officersto come back. An officer of the Fisheries Department collected somefish from the water close to the place whero the explosive was throwninto the sea, and these fishes when examined showed signs of death fromrupture of the gut due to under water explosives.
In acquitting the respondents the learned Magistrate stated that he wasunable to infer from their respective acts of collecting the fish and keepingthe boat in position while the collecting was being done an intention incommon with the convicted man of using explosives for tho purpose ofkilling fish.
Crown Counsel has argued that the proved facts, viz. (i) that the res-pondents and the convicted man had come together on a fishing expedition,(ii) that one of them had brought an explosive and used it withoutprotest from the other two, (iii) that after the explosive was used byone the other two took action in furtherance of their joint purpose,and (iv) that they all made away on the approach of officers of theFisheries Department, show without possibility of doubt that all threemen were acting in furtherance of an intention shared by them in commonand, invoking the aid of section 32 of the Penal Code, he contended thatthe acquittal was wrong. If the general explanation embodied in section32 of the Penal Code was available to be applied in a case where personsare charged with the commission of an offence other than an offenceunder the Penal Code, I have no doubt that on the facts accepted by thelearned Magistrate as proved in this case all three persons accused shouldhave been found guilty. I am not aware of any previous decision inwhich it has been held specifically that section 32 of the Penal Code
T. S. FERNANDO, J.—Weerasinghe v. Kathirgamathamby
can be applied in the way indicated above. For that reason I indicatedto Crown Counsel that I wished to hear further argument in this case. and, as the respondents were not represented at the appeal, I arrangedfor the assistance of counsel, amicus curiae, to argue that section 32 of thePenal Code can be applied only in the case of offences under the PenalCode. Before argument on this point could bo resumed, I was referred,in the course of an appeal in another case where a person had been charged,with the commission of an offence in breach of section 14 of the FisheriesOrdinance, to a provision of that Ordinance which in my opinion makesargument on the point referred to above unnecessary. I refer to section22 (3) of the Fisheries Ordinance which enacts that “ any person whoattempts or conspires to commit any offence under this Ordinance shall bedeemed to be guilty of that offence Giving the word “ conspires ” itsordinary meaning—plots or combines secretly for an unlawful purpose—it seems to mo that the respondents have certainly conspired to committhe offence which they were charged with committing. The question oflaw T have referred to above could therefore be left for consideration in acase where persons are charged with the commission of a statutory offenceother than one under the Fisheries Ordinance.
I would set aside the order of acquittal of the respondents and convictthem of the offence specified in the charge read out to them. Each ofthem will pay a fine of Rs. 100 or undergo rigorous imprisonment forone month in default of payment.
I delivered judgment in appeal in the above case on 30th October, 1957’setting aside the acquittal of two of the persons accused and holding thatboth these persons had acted in contravention of the provisions of sec-tion 14 of the Fisheries Ordinance and had thereby committed an offencepunishable under section 22 A(l) of the Ordinance, as amended by theFisheries (Amendment) Act, No. 25 of 1952. I also ordered each ofthe accused to pay a fine of Rs. 100 or undergo rigorous imprisonmentfor one month in default of payment.
Crown Counsel has now brought to my notice the question of thelegality of the sentence ordered by me and has invited me to revise thesentence in the event of that sentence having been ordered per incuriam.
I regret that in imposing a fine of Rs. 100 on each of the accused I hadoverlooked that part of section 22 A(l) of the Amending Act, No. 25 of1952, which renders a person found guilty of contravening any of theprovisions of section 14 of the Ordinance liable to a fine not less thanfive hundred rupees or to imprisonment of cither description for a termnot exceeding one year. As a result of the introduction of section 22 A(1)it is therefore clear that, if a Court decides to give a person convictedof an offence punishable under this section the opportunity of payinga fine, the fine has to be one of not less than five hundred rupees. I ob-serve that there is no minimum term of imprisonment directed to beimposed in default of the payment of the fine.
While I agree that the sentence of fine indicated in my judgment of30th October 1957 is not legal, I have to take note of the fact that both
90iSIXXETAAIBY, J.—Fernando v. Holloway
accused persons have already paid the fines I have ordered. I havealso to bear in mind that they were acquitted by the Magistrate at thetrial and were convicted only on an appeal preferred by the complainant.While it is, no doubt, open to me to revise an order made by me perhtcurkim, I think that in the circumstances of this case the regularisingof the sentence is not imperative. I have no doubt that the learnedMagistrate will take note of the interpretation of section 'll A(l) indicatedby me herein.
Acquittal set akdr.
D. D. WEERASINGHE, Appellant, and KATHIRAGAMATHAMBY and another, Respondents