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Present: Porter and Jayawardene JJ.THE CHAIRMAN, MUNICIPAL COUNCIL, KANDY, v.MOHOMED ALI et al.564 and 200—P. C. Kandy, 8,755.
Ordinance No. 3 oj 1897, s. 12—Delegation of authority by Governor—Storing grain at a place not licensed—Case sent back for disposalby Magistrate—Magistrate delivering judgtnent written by anotherMagistrate who had been transferred from station—Second appeal—Right of accused to urge points not urged at the hearing of first appeal.The accused were charged by the Chairman, Municipal Council,Kandy, with allowing grain in excess of five bushels to be storedin a place which was not licensed as a grain store in breach ofregulation 6 under Ordinance No. 3 of 1897. At the trial inAugust, 1922, the accused called no evidence, but relied on twopoints of law : (1) That the delegation required by section 12 hadnot been conferred on the Chairman (complainant), and that there-fore the regulations could not be enforced by him ; and (2) that theregulations were ultra vires of the powers conferred on the Governorin Executive Council. The Magistrate held that the regulationswere not ultra vires, but upheld the first contention and acquittedthe accused. The Supreme Court held that a delegation of author-ity was not necessary, and that if necessary a delegation must beimplied ; and set aside the order of acquittal and sent the caseback to be dealt with as the Magistrate should think fit. The Magis-trate who tried the case had been transferred to another station.The new Magistrate ordered the case to be forwarded to Mr. Roger-son, who had tried the case, for final judgment. He noted whenforwarding that counsel for the accused wished to.call furtherevidence. Without hearing evidence Mr. Rogerson wrote out hisjudgment and sent it to Kandy to be delivered on a day on whichhe was appointed to officiate as Magistrate of Kandy.
Held, that the judgment was not invalid, though delivered byanother Magistrate ; and that accused was not in the circumstancesentitled to lead further evidence. It was not open to the accusedat the hearing of the second appeal to urge that the regulationwere ultra vires, as he should have urged it at the hearing of thefirst appeal.
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The Chair-man,MunicipalCouncil,Kandy, v.MohomedAli
ri AHE facts are set out in the judgment of Jayawardene J. Thejudgment of the Supreme Court on the first appeal was asfollows:—
Hayley (with him Soertsz), for appellant.
H. J. C. Pereira, K.C. (with him R. L. Pereira and R. C. deFonseka)J for respondent.
February 7, 1923. Porter J.—
The accused in this case were charged with having acted inbreach of section 6 of the regulations made by His Excellency theGovernor in Executive Council under. “ The Quarantine andPrevention of Diseases Ordinance, 1897,” in that without obtaininga license from the complainant they allowed grain in excess of fivebushels to be kept or stored in their place of business in Colombostreet, Kandy.
When the case came on for trial on August 31 last, the accusedwere acquitted on the sole ground that there was no proof that HisExcellency the Governor in Executive Council had delegated theenforcement of the above-mentioned regulations to the Chairmanof the Municipal Council of Kandy under section 12 of OrdinanceNo. 3 of 1897.
Section 12 of Ordinance No. 3 of 1897 reads as follows :—
“ The Governor, with the advice of the Executive Council, maydelegate the enforcement and execution of any regulationmade under the Ordinance to any Municipal or localauthority, subject to such restrictions as the Governor withsuch advice may from time to time think fit to impose.”
The regulations alleged to have been infringed were published“ by His Excellency’s command” in the Ceylon Goverment Gazetteon May 20, 1921, and from that date had the force of law. I donot think that any delegation of authority to prosecute wasnecessary, and, if so, such authority is implied. I consider that theChairman of the Kandy Municipal Council was the proper person toprosecute. It is difficult to know exactly what section 12 of Ordi-nance No. 3 of 1897 means, but it probably means that the Governormay delegate any executive functions to some one other than theChairman of the Municipal Council, who, as I have said, I think, isthe proper person to prosecute for a breach of any of the regulationsmade under the Ordinance. I would, therefore, set aside thisacquittal and send the case back to the Police Court to be dealtwith as the learned Magistrate may deem fit.
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The following is the judgment of the Supreme Court on thesecond appeal in this case :—
Elliott, K.C. (with him Vethavanam and Canekeratna), fo1,appellants.
Bayley (with him Soertsz), for respondent.
The accused who are dealers in rice in Kandy were charged bythe Chairman of the Municipal Council of Kandy with allowing grainin excess of five bushels to be stored or kept in premises Nos. 199to 201, Colombo street, Kandy, which are not licensed as a grainstore, in breach of regulation 6 of the regulations under OrdinanceNo. 3 of 1897 by the Governor in Executive Council. They havebeen convicted and sentenced to pay a fine of Rs. 30 each. At thetrial held on August 31,1922, when the cases, both for the prosecu-tion and the accused, were fully gone into, the accused called noevidence, but relied on two points of law firstly, that the delegationrequired by section 12 of Ordinance No. 3 of 1897 had not beenconferred on the Chairman of the Municipal Council of Kandy, thecomplainant, and that therefore the regulations could not beenforced by him ; and secondly, that the regulations were ultra vireson the powers conferred on the Governor in Executive Council. Thelearned Police Magistrate dealt at length with both these points andupheld the first contention and acquitted the accused. As regardsthe second point, he held that the regulations were not ultra viresas alleged. The complainant appealed against this order, and thisCourt on February 7 of this year set aside the judgment of acquittal,holding that a delegation of authority to prosecute was not necessary,and that, if necessary, a delegation must be implied. The case wasordered to be sent back to the Police Court to be dealt with as thelearned Magistrate shall think fit.
When the case was called before the Police Court for the purposeof communicating to the accused the result of the appeal, it camebefore another Magistrate, as Mr. Rogerson, the Magistrate, who hadtried the case, had been transferred to another station. This Magis-trate ordered the case to be forwarded to Mr. Rogerson for finaljudgment and tt> fix a date for such judgment. Counsel for theaccused then stated that he wished to call further evidence for thedefence. The complainant’s proctor objected. The applicationand objection were noted, but without any order being made on itthe record was forwarded to Mr. Rogerson. On March 14, forwhich date Mr. Rogerson had been appointed Police Magistrate ofKandy, the judgment convicting the accused and .imposing on thema fine of Rs. 30 was delivered by his successor. The accused appealagainst this judgment. It is contended for them that the judgmentis invalid, as it was not delivered by the Magistrate who heard the
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J AYE WAR-DEN E J.
U he Chair-man,
case. It is also urged that when the case was s nt back, it shouldhave been called before the Magistrate who had tried it, as theaccused should then have had an opportunity of leading in furtherevidence and urging other grounds in their defence. The judg-ment convicting the accused has been written by Mr. Rogerson,and was delivered at Kandy on a day on which he was appointed,to officiate as Police Magistrate of Kandy. His judgment, althoughhe was not physically present at Kandy when it was delivered,is valid. As regards the other contention, I do not think theaccused were entitled to lead evidence or urge further arguments.The case was fully and completely heard by Mr. Rogerson atthe trial held on August 31, 1922. At that trial the Magistratewished to hear the defence, but the accused called no evidence,and I find in the record the entry, “ no witnesses called,”under the heading “ Defence.” The accused’s counsel contendedthemselves with urging the two points of law I have referred toabove. I could understand a complaint of this kind being madeif the Magistrate had said that he did not wish to hear the defenceon the facts, and had asked counsel to confine himself to the legalobjection. But in this case the Magistrate had desired to hear thecase for the defence fully both on the facts and on the law, blit theaccused’s counsel chose to stake their case on points of law alone.In the circumstances, I do not think the accused are entitled to leadfurther evidence or to urge other grounds at this stage of the proceed-ings. The case must be decided on the record as it stood at theconclusion of the trial on August 31. Counsel for the appellantwished to urge before me the objection that the regulations wereultra vires. This was a matter on which Mr. Rogerson had expresslygiven a decision in his judgment which came up in appeal. Thequestion could have been, and ought to have been, debated at thefirst argument before this Court, if there was any substance in theobjection. It directly arose on the judgment then under appeal,and the acquittal of the accused could have been justified on thatground. But the objection appears to have been abandoned andnot pressed, as the judgment of this Court contains no reference toit. I do not think I would be justified in allowing it to be raisednow. Then it is contended that there is no proof that the commo-dity that was stored in accused’s premises was “ grain,” as definedin the regulations, or that the quantity so stored was in excess of fivebushels. The evidence of the witness Abeysinghe proves that thequantity stored was clearly in excess of five bushels. This witnessalso spoke of the commodity found in the accused’s store as “ grain.”Regulation 2 of these regulations declares that the word “grain” asused in these regulations shall mean “ foreign or imported grain only….” When the witness spoke of “grain” he must be
taken to have referred to “ foreign or imported grain.” He wasspeaking with reference to the violation of the regulation and to
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grain which, these regulations required to be kept in licensed grainstores. It is not contended even now that the commodity was not“ foreign or imported grain.” No question was raised with regardto it in the lower Court. It is in my opinion without substance.The only result of upholding the objection would be to give theprosecution an opportunity of proving that the grain was foreign orimported grain which it is not seriously contended it was not. Nodoubt in these cases it is necessary for the prosecution to prove thatthe grain stored is foreign or imported grain, and it is to be hopedthat in similar prosecutions in the future the fact of the grain storedbeing foreign or imported grain will be clearly and specifically statedand proved.
I dismiss the appeal.
THE CHIRMAN MUNICIPAL COUNCIL KANDY v.MOHOMED ALI et al