T. S. FERNANDO, J.—Munasinghe v. Nelson
1957Present: T. S. Fernando, J.J.MUNASINGHE, Appellant, and W. G. NELSON andanother, Respondents
8. C. 811—M. C. Maktra, 47,756
Fisheries Ordinance, No. 24 of 1940—Section 14— “ In Ceylon waters
In a prosecution for using explosives for the purpose of killing or stupefyingfish in breach of section 14 of the Fisheries Ordinance, the accused person isliable to be Convicted if there is proof that he committed the offence at seawithin three nautical miles from what is commonly accepted as the sea-shore.
^^JPPEAL from a judgment of the Magistrate’s Court, Matara.
Ananda Pereira, Crown Counsel, for the Attorney-General.No appearance for the accused-respondents.
Cur. adv. wit.
October 30,1957. T. S. Fernando, J.—
This is an appeal by the complainant against the acquittal of theaccused-respondents who had been charged in the Magistrate’s Courtwith using explosive or a stupefying substance for the purpose of killing■> or stupefying fish in breach of section 14 of the Fisheries Ordinance,
T. S. FERNANDO, J.—Munaainghe v. Nelson
No. 24 of 1940, an offence punishable under section 22a (1) of the sameOrdinance, as amended by the Fisheries (Amendment) Act, No. 25 of1952. The acquittal resulted from a finding reached by the learnedMagistrate that the prosecution had failed to establish that the offencewas committed in Ceylon waters. The Ordinance itself defines “ Ceylonwaters ” as including the territorial waters of Ceylon. The “ territorialwaters ” have been defined as meaning the part of the sea within a dis-tance of three nautical miles from any point of the coast of Ceylonmeasured from low-water mark of ordinary spring tides. It is cleartherefore that if the contravention of the Ordinance had been committedat sea within three nautical miles from what is commonly accepted as thesea-shore the accused was liable to the punishment prescribed by theOrdinance. The learned Magistrate in acquitting the respondents hasstated that “ from the evidence the accused must be presumed to havebeen within close quarters of the officers ” (who claim to have seen themfrom the shore), “ but at the same time there is no explicit evidencethat they were within territorial waters as defined by the Ordinance.Being a criminal case I think the section has to be striotly construedI believe the reference by the Magistrate to a strict construction of thesection means in the context nothing more than that the prosecutionmust establish beyond a reasonable doubt that the place where theoffence was committed was within three nautical miles from the shore.(A nautical mile, it may be noted, is understood as being 6080 feet)
According to the two officers of the Fisheries Department who werecalled as witnesses for the prosecution the two respondents were seenhovering in a canoe near some rocks in the sea. The 1st respondent wasseen having a fire-brand in his left hand, then bringing both his handstogether and throwing some object into the sea. Immediately therewas an explosion and the water was seen rising up. The 2nd respondentwas then seen getting off the canoe and collecting fish. All these hap-penings were observed by the witnesses who were themselves on theshore “ in a hiding placeWhen the 2nd respondent was busy collecting
fish in the water, the witnesses say they moved towards the respondents-,whereupon the 1st respondent shouted to the 2nd that “ the gentlememwere coming ”. On this warning being given, the 2nd respondent i).alleged to have got on to the canoe hurriedly and the two respondentsare alleged to have rowed off far into the sea.
This evidence adduced on behalf of the prosecution has not beenrejected by the learned Magistrate. The defence called no evidence andcounsel on behalf of the respondents was content to rely on the pointthat the prosecution must establish that the offence was committed" in Ceylon waters ”. It seems to me that if the prosecution witnessesare believed it is incontestable that the offence was committed in Ceylonwaters. The explosive was thrown within a very short distance fromthe shore and indeed so close to the shore that all the movements of therespondents could have been espied therefrom. No reason was advancedby the defence in the Magistrate’s Court why these witnesses should bedisbelieved. The Magistrate has not disbelieved them and it is a fair
T. S. FERNANDO, J.—Munasinghe v. Nelson
inference that the Magistrate would have convicted the respondentsif he had directed himself correctly on the evidence relating to the placewhere the offence is alleged to have been committed.
The first respondent as the person who. threw the explosive is guiltyof a contravention of section 14 of the Ordinance. The 2nd respondenthas conspired with the 1st respondent in committing the said con-travention, and is therefore by reason of the operation of section 22 (3)of the Ordinance deemed to he guilty of the offence alleged against him.I have discussed in a judgment delivered by me today in a similar case—"Weerasinghe v. Kathirgamathamby1—the question of the liability topunishment of persons who conspire with others to commit contraven-tions of the Fisheries Ordinance and it is therefore unnecessary to sayanything here on that question.
I would therefore set aside the order of acquittal and direct that anorder of conviction be entered. Each of the respondents will pay a fineof Rs. 100 or undergo rigorous imprisonment for one month in defaultof payment.
[His Lordship added a postscript in terms identical with those of thepostscript in Weerasinghe v. Kathirgamathamby (supra).]
Acquittal set aside.
1 (1967) 60 N. L. B. 87.
J. MUNASINGHE, Appellant, and W. G. NELSON and another, Respondents