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February ISand 23.
GUNARATNE v. WICKREMANAYAKA.
P. C., Matara, 28,014.
Disobeying direction of law—Positive direction—Ceylon Penal Code, a. 214.
In a prosecution under section 214 of the Ceylon Penal Code thecharge ought to set forth the direction of the law that was dis-obeyed, and such direction of law ought to be-distinctly proved.The direction of law must be a positive one, and not the meregeneral obligation by which every subject is bound not to stiflea prosecution.
'J^'HE facts appear in the judgment.
Jayawardena, for appellant.
Cur. adv. vult.
23rd February, 1897. Lawbie, J.—
The charge was that “ You on the 7th day of November, 1896,
“ at Medawatta, within the jurisdiction of this Court, disobeyed“ a direction of law, in that you, being a public servant, and having“ seized an unlicensed gun belonging to Don Barnes Disanayaka,
“ and being bound by law to produce the said gun, did disobey“ the direction of law and return the said gun to the said Don“ Barnes.”
It has been ruled in cases cited by Mayne and by Starling intheir commentaries on the 217th section of the Indian Penal Code,that the direction of law disobeyed ought to be set forth in thecharge, and it must be a positive direction, not the mere generalobligation by which every subject is bound not to stifle a prosecu-tion ; consequently the direction of law must be distinctly proved.
Here the Magistrate states that the direction of law is to producean unlicensed gun, I presume to produce to a Magistrate, but it isnot stated where that direction is to be found.
The possession of an unlicensed gun is not per se an offence.It is so made by an Ordinance No. 19 of 1869, section 3, and ispunishable by a fine not exceeding £2, and by forfeiture of thefirearm. I find no authority given to headmen to seize unlicensedguns, nor any direction given to them to produce them before aCourt. The procedure seems to be by information, see sections11 and 12 of the Ordinance.
It is said that the accused demanded and took money with theintent of stifling a prosecution ; if he did, he is punishable undersection 210, but that is a separate" offence.
All I have to do here is to decide whether the charge and theproof warrant a conviction under section 214. I hold that they donot. I set aside and acquit the accused.
GUNARATNE v. WICKREMANAYAKA