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Present: Jayewardene A.J.
POOSARI v. PERERA.224—P, C, Nuwara Eliya, 6,238.
Thoroughfares Ordinance, 1861—Removal of cattle from possession oflicensed cattle seizer—License signed, not by Chairman, but bysome other person “/or Chairman ”—Licence invalid.
Accused was charged under section 94 of the ThoroughfaresOrdinance, 1861, with having removed a cow from the Jawfulcustody of a licensed cattle seizer. The licence was signed byMr. S. for the Chairman of the Board of Improvement,-NuwaraEliya.
•Held, that licence was invalid, and that accused had, therefore,not committed an offence.
Licenses of this kind must be signed by the Chairman himself*for their issue is not a ministerial matter, but his discretion has tobe exercised in the choice of suitable persons as cattle seizers.
rj IRE facts appear from the judgment.
Peri Sunderam, for the appellant.
May 16, 1923. Jayewardene A.J.—
In this case the accused has been charged with a breach of sub-section (2) of section 94 of Ordinance No. 10 of 1861, called theThoroughfares Ordinance. He is said to have removed a brown andwhite cow from the lawful custody of the Board of Improvement’s
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Jaybwar-dene A. J.
licensed cattle seizer, Poosari. Ordinance No. 5 of 1915, whichamended section 94 (2) of the Thoroughfares Ordinance, has madeit an offence to remove any animal from the custody of a licensedcattle seizer, or to molest or obstruct him in the performance of hisduties. The learned Magistrate convicted the accused and imposeda fine of Rs. 25. The appeal must, therefore, be based on a questionof law. Several points of law have been taken on behalf of theappellant, but 1 will only deal with one of them, which appearsto me to be fatal to the conviction. It is necessary for the prose-cution to prove, in cases of this kind,, that the cattle seizer islawfully authorized or licensed to seize cattle. The lawful authorityunder section 94 has to be issued by the Chairman of the Provincialor District Committee, who is generally the Government Agent ofa Province or the Assistant Government Agent of a District. Butthe license issued in this case to the seizer is signed by one Mr.Sudbury, for Chairman, Board of Improvement, Nuwara Eliya.Licenses of this kind must, in my opinion, be signed by the Chairmanhimself, for their issue is not a ministerial matter, but his discretionhas to be exercised in the choice of suitable persons as cattle seizers.The license under which the accused’s head of cattle was seized,was, therefore, invalid in law, and Poosari had no lawful authorityto seize the accused’s head of cattle. On..this short ground I allowthe appeal, and set aside the conviction.
Set aside. .
POOSARI v. PERERA