CANEKERATNE J.—Careem v. Wickremeratn e.
1948Present: Wijeyewardene J.JUWANIS PERERA, Appellant, and GORDON (INSPECTOROF POLICE), Respondent.638—M. G. Colombo, 15,749.
Defence (Control of Textiles) Regulation 14 (1)—“ Dealer ” ' means a dealerholding a textile licence —Penal Code, s. 67 applicable to breaches ofDefence Regulations—Penal Code, ss. 38, 67.
The word “dealer” in Regulation 14(1) of the Defence (Control ofTextiles) Regulations means a dealer holding a textile licence.
WIJEYEWARDENE J.—Juwania Per era v. Gordon [Ins. of Police.)420
Section 67 of the Penal Code would apply to breaches of the DefenceRegulations and, in a case falling within it, separate convictions can beentered under two or more counts on the same set of facts providedthat the sentence passed is not in excess of the sentence which can beawarded for any one Of the counts.
yy PPEAJL against a conviction from the Magistrate’s Court, Colombo.
S. Nadesan, for the accused, appellant.
S. Mafiadevan, C.C., for the Attorney-General.
Cur. adv. vuU.
October 1, 1946. Wijkyewaedenb J.—
The accused was charged—
with having exposed for sale certain regulated textiles in breach of
Regulation 4 (2) of the Defence (Control of Textiles) Regulationspublished in Gazette No. 9,388 of March 28, 1946, as amendedby Regulation 3 in Gazette No. 9,430 of July 11,1946, and #
with having been in possession of a quantity of regulated textiles
in excess of that which he as a consumer could have purchasedfrom a dealer by surrendering all the coupons issued tohim for a year in breach of Regulation 14 (1) of the aboveRegulations.
Each of these offences is punishable with a fine of not less than Rs. 500and not more than Rs. 5,000 or with imprisonment of either descriptionfor a period not exceeding one year or with both suoh fine and imprison-in' nt (Regulation 59.)
The Magistrate convicted the accused on both the counts and sentencedhim to pay a fine of Rs. 1,000 and in default to undergo rigorous imprison-ment for three months.
Admittedly the accused was a hawker and was, therefore, a porsoncarrying on business as a dealer within the meaning of Regulation 2. Hedid not hold a textile licence authorising him to carry on such business.I see no reason, therefore, to interfere with his conviction on the firstcount.
Mr. Nadesan contended against the conviction on the second count—
(i.) that Regulation 14 (1) penalised only the possession by personsother than dealers and that the accused who was admittedly adealer, though an unlicensed one, would not be liable underthat Regulation.
(ii.) that there was no proof of the quantity of regulated textilesthat the accused could have purchased by surrendering all thecoupons issued to him for a year.
430 WIJBYEWARDBNE J.—Jvnvanxa t'erera v. (Jordon (irw. of folice.)
Regulation 14 (1) reads :—
“ No person other than a dealer Bhall, except under the authorityof a permit granted by the Controller, transport, or have in his pos-session or under his control at any one time, whether for his own useor for any other purpose whatsoever, any quantity of regulatedtextiles in excess of that which a consumer can purchase from a dealerby surrendering all the coupons issued to the consumer for a year:provided, however, that the preceding provisions of this paragraphshall not apply in any case where a person employed by any dealertransports any regulated textiles to a registered store of that dealer. ”
Part II of the Regulations consisting of Regulations 3 to 14 deals withtrading in regulated textiles and the importation, transport and pos-session of such textiles. Regulation 2 empowers the Controller to issuea textile licence and Regulation 4 prohibits any person who does nothold such a licence from carrying on business as a dealer. Regulation 7requires a “ dealer ” to exhibit his textile licence and Regulation 13states that every “ dealer ” importing regulated textiles shall obtain aninvoice containing such particulars as the Controller may prescribe.The proviso of Regulation 14 (1) itself states that the earlier provisionsof that Regulation shall not apply where a person employed by any“ dealer ” transports any regulated textiles to a registered store of that“ dealer ”. A study of these Regulations shows clearly that the word“ dealer ” in “ No person other than a dealer ” in Regulation 14 (1)means a dealer holding a textile licence. The accused who is not such adealer would, therefore, be a person coming under that Regulation.
With regard to the second objection it is sufficient to state that theInspector of Textile Control who gave evidence as to the quantity thatthe accused was entitled to possess was not even cross-examined. Thatevidence stands uncontradicted.
The accused is however charged with being in possession of the textilegoods at the time and place that he was exposing the identical goods forsale. Could the prosecution frame two charges on the same set of factsand ask for separate convictions and sentences on the two charges ?
Section 67 of the Penal Code states that “ where anything is an offencefalling within two or more separate definitions of any law in force for thetime being by which offences are defined or published …. theoffender shall not be punished with a more severe punishment than theCourt which tries him could award for any one of such offences ”.
This section would apply to breaches of the Defence Regulations(vide Section 38 of the Penal Code). It enacts a rule of substantivelaw regulating the measure of punishment and it does not affect thequestion of conviction. The conviction therefore under both the countswould be in order and as the sentence passed is not in excess of thesentence which the Magistrate could have given for any one of themI do not see any reason for interfering with the sentence.
For the reasons given by me I dismiss the appeal.
JUWANIS PERERA, Appellent, and GORDON (INSPECTOR OF POLICE), Respondent