( 260 )
WACE v. LEWISHAMY et al.
P. C., Balapitiya, 17,954.
Plumbago mining—Ordinance No. 2 of > 1896, s. 3—Declaration toGovernment Agent, by whom to be made—Disobedience to summons—Proof necessary for conviction under s. 172 of the Penal Code.The person who should make the declaration under section 3 ofthe Ordinance No. 2 of 1896'is the owner of a plumbago mine, andno one else.
It is irregular to convict an accused under section 172 of the PenalCode for not attending Court in obedience to a summons allegedto have been served on him, unless the summons be produced inevidence.
N a charge laid under Ordiauce No. 2 of 1896, section 6, foedigging plumbago 'without furnishing the Government
Agent with the declaration required by seotion 3, the accused wasfound guilty and sentenced.
( 261 )
He was also found guilty under section 172 of the Penal Codefor improperly omitting to attend Court after summons dulyserved on him. His defence was that he did not receive thesummons, but the Magistrate, after examining the process server,who deposed that summons was served on him on the 26th May,believed the process server, and sentenced the accused to pay afine of Rs. 25, or in default to a month’s imprisonment. Heappealed.
Waiter Pereira, for appellant.
A. Drieberg, for respondent.
1st August, 1898. Bonser, C.J.—
In this case the appellant Lewishamy, who, according to theevidence of the headman who was responsible for the prosecution,had previously been a cooly in a plumbago pit, was convictedof having worked a plumbago mine without furnishing theGovernment Agent of the Southern Province with the declarationrequired by section 3 of Ordinance No. 2 of 1896.
Now, it is obvious, on reading that section, that the person whoshould make the declaration is the owner of the mine and noone else. It would be absurd to hold that a cooly, before heworked in a plumbago pit, must furnish the Government Agentof the Province with a declaration such as is prescribed bythe Ordinance. The only evidence against the appellant is thathe was seen working in the mine. He swears that he wasworking only as a cooly. It has not been shown that he has anyinterest, in the land or in the mine; and that being so, I amof opinion that he was wrongly convicted.
Then, in the course of the same proceedings, he was foundguilty of another offence—an offence under section 172 of thePenal Code—in not attending Court in accordance with thesummons served op him. The only evidence in support of thecharge was the evidence of the process server, who says that heserved a summons on him. The summons was not produced.Without the production of the summons it is impossible to saythat the appellant was legally bound to obey it. It may havebeen such a summons as I have seen in this Court, one signed bysomebody for the chief clerk, in which case the appellant wouldnot have been-bound to obey it.
The case should, therefore, be remitted to be further dealtwith on that charge.
WACE v. LEWISHAMY et al