HEARNE J.—Simon and Perera.
1943Present: Hearae J.
SIMON, Appellant, and JPERERA (Inspector of Police)
949—M. C. Panadure, 20,592.
Rubbei Thefts Ordinance (Cap. 29), s. 16 (I)—Charge of being in possession ofrubber reasonably suspected of being stolen—Essence of offence.
In a charge under section 16 (1) of the Rubber Thefts Ordinance ofbeing in possession of rubber reasonably suspected of being stolen theessence of the offence is the inability of the person in possession toaccount "satisfactorily for his possession.
Undue stress should not be placed oh the grounds of suspicion of thepolice officer concerned.
^ PPEAL from a conviction by the Magistrate of Panadure.
K.W. E. Perera, for accused, appellant.
A. C..Alles, C.C., for complainant, respondent.
Cur. adv. vult.
February 11, 1943. Hearne J.—
A Police Officer found the appellant in possession of 40 lb. of rubberwhich he suspected were stolen and he accordingly applied for a summons“ to bring ” him before a Magistrate. He was charged under section 16 (1)of the Rubber Thefts Ordinance and convicted.
HEARNE J.—Simon and Pot era.
My attention was drawn to a case decided by this Court Soysa v.Davith Singho*. The accused in that case was charged under section 4rof the Protection of Produce Ordinance which is similar to but notidentical with section 16 (1) of the Rubber Thefts Ordinance. It washeld by Schneider J. that “ the circumstances of the case did not giverise to any suspicion that the tea was not honestly in the possession of theaccused and that being so, the section did not oblige the accused to givethe Court a satisfactory account of his possession of the tea, although theevidence in the case undoubtedly showed that the account given by theaccused was by no means satisfactory.”
Now to be in possession of property suspected of being stolen is nooffence under the Penal Code. It is not even an offence to be in possessionof property which is actually stolen. The offence is possession and aguilty knowledge or reasonable belief that the property is stolen. Undersection 4 of the Protection of Produce Ordinance the circumstances mustbe such as to give rise to a suspicion that the property is not “ honestly inpossession ”. It seems to imply that the<circumstances must give rise tosuspicion of dishonesty of possession in the sense of guilty knowledgennHpr the Penal Code. That, however, inadvertently or not, is not whatthe Legislature has laid down in the Rubber Thefts Ordinance. UndertViig Ordinance a Police Officer may take action merely “ if he finds anyperson in possession of rubber which he suspects to have been stolen ”.The two Ordinances are capable of differentiation.
But apart from this, whether one is dealing with the Protection ofProduce Ordinance or the Rubber Thefts Ordinance undue stress shouldnot, I think, be laid on the grounds of suspicion entertained by the PoliceOfficer concerned. The two Ordinances, so far as he is concerned,merely enable him to do something he could not otherwise do, and theessence of the offence is the inability of the person in possession to accountsatisfactorily for possession. I think that it is in this way that theprovisions of 2 & 3 Viet. C. 47 S. 66 and 2 & 3 Viet. C. 71 S 24 areregarded in England though, as these sections have been construed,because of certain additional words “ or conveying ” which do not appearin our law, they have been held to apply only to possession on the street“ and not in house ”. It is just possible Schneider J. had the decided:cases in England in mind for, in the case that was before him on appeal,possession was not in a street but “ in a boutique ”.
In the present case the circumstances were certainly of a suspiciousnature. The accused offered no explanation personally but put forwarda witness whose evidence was not believed.
Another objection was taken to the effect that the rubber found in the-appellant’s possession was not proved to' have been rubber obtained fromthe latex of any of the rubber plants mentioned in section 22. In thatsection, “ rubber plant ” includes certain varieties and is not exhaustive.I would mention that this objection was not taken at the trial or in thepetition of appeal.
The appeal is dismissed.
1 29 N. L. B. 118.
SIIMON, Appellant, and PERERA (Inspector of Police ) Respondent