H. N. G. FERNANDO, J.-—Tulin Per era v. Rajakulasingkam
1958Present: HVN. G. Fernando, J.
TULIN PERERA, Appellant, and G. RAJAKULASINGHAM(Inspector of Police), Respondent
8. C.130—M. C. Colombo, 49,827/<7
Explosives Act, No. 21 of 1956— Sections 9 (2), 10, 11—Possessionof dashing-crackers—Culpability—Explosives Regulations 1957, Regulations 5, 9 (2), 49.
A permit under section 9 (2) of the Explosives Act is not required for thepossession of fireworks in a quantity not exceeding 50 lbs. Nevertheless,Regulation 5 of the Explosives Regulations absolutely prohibits the possessionof any firework the explosive mixture of which contains the chlorate of anymetal or any sulphide of arsenic.
xXPPEAL from a judgment of the Magistrate’s Court, Colombo.
Colvin B. de Silva with V. W. Vidyasagara, for the Accused-Appellant,V. C. Gunatilalca, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 24, 1958. H. N. G. Fernando, J.—
The appellant has been convicted on a charge that he possessed “ dan-gerous explosives ”, to wit two hand bombs, in breach of Section 9 (2) ofthe Explosives Act, No. 21 of 1956. The report of the GovernmentAnalyst stated that the two hand bombs contained “ a mixture ofpotassium chlorate, Arsenic sulphide and pebbles ” and that they are“ dashing-crackers ” and are “ prohibited explosives
Section 9 (1) of the Act prohibits inter alia the possession of explosivesfor certain specified.business purposes except under the authority of alicence, and Section 9 (2) prohibits possession of explosives for other pur-poses except under the authority of a permit. But there is an importantexception to the latter prohibition, for Section 10 provides that a permitis not required for the possession of such a quantity of fireworks as doesnot exceed the prescribed quantity. The quantity has been prescribedin Regulation 9 (2) of the Explosives Regulations 1957 (Gazette 11,125of June 3rd, 1957) and in the result a permit under Section 9 (2) of the Actis not required to authorise possession of fireworks in a quantity notexceeding 50 pounds.
The effect of the definition of “ cracker ” and “ fireworks ” in Regulartion 49 is that what is commonly called a dashing-cracker is includedwithin the meaning of the term “ fireworks ”. Accepting then the reportof .the Government Analyst in this case that the hand bombs in questionare dashing-crackers, the effect of the various statutory provisions towhich I have already- referred is that it is not an offence under Section
H. H. G. FERNANDO, J.— Tulin Perera v. Sajakulasingham
(2) of the Act to possess dashing-crackers except in a quantity whichexceeds 50 pounds. That being so, the accused in this case could not havebeen properly convicted of such an offence.
This conclusion is surprising, particularly in view of the fact that theGovernment Analyst described the hand bombs as “dangerous explo-sives one would not expect that the law would permit people to possessor use such articles with impunity. I have therefore examined the ques-tion further after reserving judgment, and am satisfied that there is nosuch defect in the law.
Section 11 of the Act authorises regulations to be made inter aliaprohibiting the possession of any explosives. By virtue of this powerRegulation 5 of the Explosives Regulations 1957 prohibits the possessionof any firework the explosive mixture of which contains the chlorate of anymetal or any sulphide of arsenic. Par then from allowing a person, eitherfreely or under a permit, to possess hand bombs of the description whichthe appellant in this case is alleged to have possessed, the law absolutelyprohibits the possession of any firework containing the explosive mixturefound by the Analyst in these bombs. The appellant therefore undoub-tedly committed an offence by possessing articles prohibited byRegulation 5, and should have been charged for that offence.
I have anxiously considered whether in view of the gravity of hisoffence he should not now be convicted as for a contravention of thatRegulation. I desist from doing so for the following reasons :—
(а)The offence of'contravening Regulation 5 is an offence quite distinct
from that contemplated in Section 9 (2) of the Act.
(б)It would he unfair at this late stage to substitute a conviction for
an entirely different offence, particularly when it was not sugges-ted duiing the argument of the appeal that an offence underRegulation 5 had been made out.
There was evidence to prove that the two hand bombs markedPI and P2 were dispatched in proper custody to the GovernmentAnalyst for report and duly returned by him to theMagistrate’sCourt. There was however no evidence to prove that Pi and P2were the hand bombs found in the possession of the appellant.The Police Constable who is alleged to have detected the offencesaid that on searching the appellant he saw two paper ballsin his hand similar to PI and P2. There was lacking thenecessary evidence to establish beyond doubt that the articles 'seized from the possession of the appellant were the identicalarticles produced in Court and subsequently transmitted to theAnalyst for report.
My remark during the course of the argument, that “ this case has beenbungled from beginning to end”, has been amply confirmed upon con-sideration of the evidence and of the relevant statutory provisionsgoverning the possession of explosives of the type concerned in this case.
1 am compelled to set aside the conviction and acquit the accused.
TULIN PERERA, Appellant, and G. RAJAKULASINGHAM (Inspector of Police), Respond