SWAN J.—Simon Singho v. Thoradeniya
1954iPresent: Swan J.
S. P. STMOTSf SINGHO, Appellant, and C. B. THORADENIYA (S. I.
S. C. 1,346—M. C. Matara, 32,038
Poisons, Opium and Dangerous Drugs Ordinance (Cap. 172), ss. 26, 76 (1) (a)—Charge of unlawful possession of seeds, dkc., of hemp plant—Mention of wrongperson as proper authority—Curable irregularity—Criminal Procedure Code,s. 426—Burden of proof—Evidence Ordinance, s. 106.•
Appellant was charged with being in possession of certain quantity of seeds,pods, leaves and flowers of the hemp plant without a licence from the properauthority in breach of section 26 of the Poisons, Opium and Dangerous DrugsOrdinance. The “proper authority” mentioned in the plaint was the Ministerof Justice instead of the Minister of Health.
Held, that the mention of the wrong person in the plaint as the properauthority was nothing more than a mere irregularity curable under section425 of the Criminal Procedure Code.
Held further, that under section 106 of the Evidence Ordinance the burdenwas on the accused to pr$>ve that his possession of the prohibited seeds, &c.,was lawful. Sanitary Inspector, Mirigama v. Thangamani Nadar (1953) 55N. L. R. 302, distinguished.
jfj^PPEAL from a judgment of the Magistrate’s Court, Matara.
Sir LaMta Rajapakse, Q.C., with M. L. S. Jayasekera and D. R. P.Goonetilleke, for the accused appellant.
P. Colin Thome, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 9, 1954. Swan J.—
The appellant in this case was charged with being in possession of89 J pounds of seeds, pods, leaves and flowers of the hemp plant commonlyknown as Cannabis Saliva L without a licence from the proper authorityin breach of section 26 read with section 76 (1) (a) of the Poisons, Opiumand Dangerous Drugs Ordinance, Cap. 172 of the New LegislativeEnactments. The proper authority mentioned in the plaint was theMinister of Justice. The appellant was found guilty after trial andsentenced to 6 nyonths rigorous imprisonment.
Learned counsel for the appellant contends that the conviction ishad for two reasons, namely : (1) the prosecution did not prove thatthe alleged possession of this stuff was without a licence from the properauthority, (2) that the charge was defective in that it mentioned theMinister of Justice as the proper authority.
SWAIN J.—Simon Singho v. Thoradeniya
Dealing "with, the latter point X find that the proper authority under-Gazette Notifications No. 10,407 of the 2nd June, 1952 an| No. 10,605-dated 28th October, 1953, is the Minister of Health and not' the Ministerof Justice. I cannot ho-wever agree with the contention that the defectin the charge is an illegality. In my opinion it is nothing more than amere irregularity and section 425 of the Criminal Procedure Code wouldtherefore apply and the conviction cannot be set aside on that account,learned counsel for the appellant referred me to a judgment of Gratiaen J.in M. G. Negombo No. 3,3891 where the conviction was quashed insimilar circumstances. But in that case I find that there were othprdefects, the most vital of which was that the production was not"provedto be the identical article on which the Government Analyst had submittedhis report. I was also referred to another judgment of Gratiaen J. iniff. G. Colombo A. 1,831 [B 2. In that case the proper authority referredto was the Minister of Home Affairs and not the Minister of Health.Gratiaen J. dismissed the appeals and affirmed the sentences subject tothe alteration that the convictions should be recorded as for the commis-sion of the offence charged ‘1 without a licence from the Minister of Health5 5.It will thus be seen that Gratiaen J. did not consider the defect in thecharge as fatal to the conviction.^
I shall now deal with the other point taken, namely that the prose-cution had to prove that the accused did not have a licence from theproper authority. Learned counsel for the appellant relied on thedecision of Nagalingam A.C.J. in Sanitary Inspector, Mirigama v.Thangamani Nadar3. That was a prosecution under Regulation 46-of the Prevention of Diseases Ordinance. It was there held that theburden was on the prosecution to prove that the accused hadfailed to inform the proper authority of the presence in his house ofa person suffering from a contagious disease. In my opinion that casecan have no application to the present ease. I find that dealing withthe interpretation of the Regulation the learned Acting Chief Justicesaid :
“ Had, for instance, the Regulation in the present instance run asfollows :—c
‘ No person shall permanently or temporarily reside in any buildingin which there shall be any person affected with any contagious disease^unless he shall forthwith inform the proper authority thereof."’
there can be no question but that the prosecution need only prove (a)that the accused person had resided in a building, (6) that in that buildingthere was a person affected with the contagious disease, and then itwould be upon the accused person to establish that he had informed theproper authority ; for the offence would consist in occupying a buildingin which a person affected with a disease was present and not consistin a failure to do an act such as to give information of the presence of a 1 2
1S. G. No. 1,137—S. G. Min. of 1.2.50.
2S. C. No. 1,377—S. G. Min. of 1.2.54.
a (1953) 55 N. L. R. 302; 49 C. L. W. 81.
STV-4X J.—Cidlin Per era v. Sa .naradiaakara453
diseased person. Xn these circumstances on his failure to do so he couldproperly ba fc had guilty of the offence as under section 106 of the EvidenceOrdinance thi, burden of proving the exception would lie on him. ”
In this case the relevant section reads as follows :—
“ Xo person shall, without the licence of the Governor, sow, plant,cultivate, obtain or have in his possession any poppy plant, cocoaplant or hemp plant, or collect or have in his possession the seeds,pods, leaves, flowers or any part of any such plant. ”
In my opinion section 106 of the Evidence Ordinance applies and theburden was on the accused to prove that his possession was not in con-travention of section 26 and that he had a licence from the Minister ofHealth to possess the prohibited plant or any of its component parts.It is quite plain from the wording of the section that the law prohibitedthe sowing, planting, cultivation or possession of the hemp plant or theseeds, pods, leaves and flowers thereof. Any person found in possessionof the prohibited stuff is bound to prove that he holds a licence from theproper authority.
The appeal is dismissed and the conviction and sentence affirmed.
S. P. SIMON SINGHO, Appellant, and C. B.THORADENIYA (S. I. Police), Responden
SWAN J.—Simon Singho v. Thoradeniya