KEUNEMAN J.—Ponnudurai and Mailvaganam.
1943Present: Keuneman J.
PONNUDURAI, Appellant, and MAILVAGANAM, Respondent.
555—M. C. Point Pedro, 2,535.
Burden of proof—Charge of failing to furnish a return specifying a store orplace for keeping controlled articles—Control of Prices Regulations1942, s. 6.
Where a person is charged with having in his possession a stock ofcontrolled articles in his house, which is not a registered store or place,and failing to furnish to the Controller a return specifying such store orplace,—-
Held, that the burden of proving that the accused failed to furnishto the Controller a return, in the manner specified; lay upon theprosecution.
y^PPEAL from a conviction by the Magistrate of Point Pedro.
L. A. Rajapakse (with him N. M. de Silva), for accused, appellant.
G. E. Chitty, C.C., for respondent.
Cur. adv. vitit.
September 14, 1943. Keuneman J.—-The accused in this case was charged with having in his possession astock or quantity of seven bags of chillies, a price-controlled article, inhis house Which is not a registered store or place and failing to furnish tothe Controller a return specifying such store or place, and thereby commit-ting a breach of section 6 of the Control of Prices Regulations of 1942published in Government Gazette No. 9,019 of October 8, 1942. Thecharge set out that the offence was punishable under section 5 (6) of thePood Control Ordinance (Cap. 32), but this is not correct, as the offence isreally punishable under the Control of Prices Regulations of 1942.
Section 6 of the Regulation runs as follows : —
“ Every person who desires to keep any stock or quantity of anyprice-controlled article at any store or other place which is not a regis-tered store, Shall furnish to the Controller a return specifying suchstore or other place, and the Controller may in respect of such store orother place exercise the powers conferred on him by Regulation 5.”
KEUNEMAN J.—Ponnudurai and. Mailvaganam.
It is to be noted that the offence alleged is the breach of a positiverequirement to furnish a return to the Controller.
This case has followed an unusual course. The Inspector of Policegave evidence of the search at the house of the accused who was present,and of the finding of the seven bags of chillies. The Inspector provedthat chillies were a price-controlled article, and produced a Gazette insupport of this, and added that the accused had no permit to store thechillies. The cross-examination of the Inspector was directed to thepoint whether the accused was or was not a wholesale trader or importer.Thereafter the record runs as follows :—
“ Defence concedes that the premises where these chillies wereseized were not registered, and also that the chillies were found in thehouse of the accused. In view of this, the prosecution closes its case.The accused leads no evidence.
I find the accused guilty. ”
I think the proceedings at this point were irregular, and that the Magis-trate should not have accepted what is apparently an admission of theaccused’s Counsel But I need not consider that matter further, forCounsel for the appellant urges that there is no evidence that the accusedfailed to furnish a return to the Controller. Certainly there is no evidencewhatsoever on that point.
Crown Counsel contends that the burden of proof on this point layon the accused, and that it was not incumbent on the prosecution toprove a negative. He relies on the case of Perkins v. Dewadasan1, andthe English cases followed in that decision. In 39 N. L. R. 337, thecharge was that the accused “ not being a medical practitioner didpractice for gain . …” in breach of section 41 (b) of OrdinanceNo. 26 of 1927. de Kretser A.J. followed the English cases and came tothe conclusion that the burden of proving that he is a medical practitionerlay on the accused.
I have examined the English cases relied upon. In The King v. Turner'the offence charged was that the accused being a carrier, and nothaving the qualifications set out under 10 heads, did unlawfully have inhis custody and possession sixteen pheasants and five hares. It was held,that the burden of proving the qualifications was on the accused persons.In Apothecaries Co. v. Bentley *, a penalty was claimed in that the defendantpractised as an apothecary “ without having obtained such certificate asby the said Act is required ”. It was held that the affirmative had tobe proved by the defendant and not the negative by the plaintiffs.In Williams v. Russel' Talbot J. said,—
“ On the principle laid down in Rex v. Turner (supra) and numerousother cases, where it is an offence to do an act without lawfulauthority, the person who sets up lawful authority must prove it,and the prosecution need not prove the absence of lawful authority. ”This was a case where the accused was charged with using a motorvehicle without there being in force in respect of such user a policy ofinsurance.
1 39 N. L. B. 337.3 171 E. B. 978.
* 105 E. B. 1026.* 149 L. T. 190.
KEUNEMAN J.—Veerasinghe and Barlis.
In Roc he v. Willis,1, the offence alleged was that the respondent didunlawfully drive a heavy locomotive when under the age of 21. Thesection in the Road Traffic Act, 1930, was as follows: —
“ A person under 21 years of age shall not drive a heavy locomotive…. on a road unless on first applying for a licence ….he satisfies the licensing authority that he was …. in thehabit of driving a motor vehicle of that class.”
It was held that the onus of bringing himself, if he could, within theproviso or exception or exemption lay upon the respondent.
I do not think any of these cases are applicable in the present instance.The proof of the finding of the chillies in the house of the accused nodoubt establishes that the accused desired to keep a stock or quantityof such articles in his hous»e. The substance of the charge is that the .accused failed to furnish to the Controller a return in the manner specified.The accused is not trying to force upon the prosecution the proof' ofany proviso, or exception or exemption. In my opinion the burden ofproving this fact lay upon the prosecution', and in the circumstances theprosecution fails.
I set aside the conviction and confiscation and acquit the accused.
PONNUDURAI Appellant, and MAILVAGANAM, Respondent_2