WEERASOORIYA, J.—Wilbert v. Inspector of Police, Wellcnoatte 41ft
Present: Weerasoorlya, J.
WILBERT, Appellant, and INSPECTOR OF POLICE,WELLAWATTE, Respondent
S. G. 495—M. G. Colombo South, 88,695 '
Emergency (Miscellaneous Provisions and Powers) Regulations, 19S8—Regulation, 26“—Charge framed thereunder—Public Security Ordinance, No. 25 of 1947, s, 5.
Paragraphs (1) and (4) of Regulation 26 of the Emergency (MiscellaneousPrpvisions and Powers) Regulations deal with two distinct offences. Theformer deals with possession of art “ offensive weapon ” or “ offensive substance **and the latter with possession of unlicensed guns.
A XPPEAL from a judgment.of the Magisfcrate’s.Court, Colombo South.8. B. Lekamge, for Accused-Appellant.
J. A. D. de Silva, Crown Counsel, for Attorney-General.
Our. adv. wit.
January 16, 1959. Weebasooriya, J.—
The material portion of the charge on which the accused-appellant
was tried and convicted is as follows:—
That he “ did without lawful authority or reasonable excuse have inhis possession or under his control an unlicensed and offensive weapon:to wit a * La Rapide ’ pistol bearing No. 1985 with a live ammunition)(sic) in breach of Regulation 26 of the Emergency (MiscellaneousProvisions and Powers) Regulations published in Government Gazette-No. 11,321 of 27 .5.58 and made by the Governor-General under.section,'5 of the Public Security Ordinance No. 25 of 1947 as amended by Act,No. 22 of 1949 and Act No. 34 of 1953 and thereby committed an;offence punishable under section 26 (4) of the said Regulations . .
Regulation 26 referred to in the charge reads—
-j, .•'.. . '' ’
“26 (1) Any person who without lawful authority or reasonable• excuse, the proof whereof shall lie on him, has in-his possession or underhis control any offensive weapon or any offensive substance shall beguilty of.anjpfifence against this regulation.
(2) A police officer, a member of the Ceylon Army of a rank notbelow that of Sergeant, a member of the Royal Ceylon Navy of a ranknot below that of Petty Officer, or a member of the Royal Ceylon AirForce of a rank not below that of Sergeant, may remove any offensive^weapon or any offensive substance which is in the possession or underthe control of any person whom he has reasonable cause to believeto he committingan offence against this regulation.,
Ammugam v. Vijayaretnam
In this regulation—
‘Offensive substance’ means any inflammable, corrosive orvolatile substance; and * offensive weapon ’ means a bomb or grenadeor any other device or contrivance made or intended for a use or pur-pose similar to that of a bomb or grenade, or any article capable ofbeing used for causing injury to the person.
Notwithstanding anything in the Firearms Ordinance, any personwho is convicted of an offence against that Ordinance by reason of thecontravention of the provisions of section 22 of that Ordinance re-
i lating to the custody, or possession or use of unlicensed guns shall beliable to a fine not exceeding five thousand rupees or to imprisonmentof either description for a term not exceeding five years or to bothsuch fine and imprisonment. ”
It will be seen that paragraphs (1) and (4) of Regulation 26 deal withtwo. distinct offences. Paragraph (1) makes it an offence against theregulation for any person without lawful authority or reasonable excuseto have in his possession or under his control (inter alia) any “ offensiveweapon ” as defined in paragraph (3). Such offence would be punishableunder Regulation 42. Paragraph (4) of Regulation 26 refers to an offencecommitted under the Firearms Ordinance (Cap. 139) by reason of thecontravention of the provisions of section 22 of that Ordinance relatingto the custody, possession or use of unlicensed guns, and renders a personconvicted of such an offence liable to the enhanced punishment specifiedin that paragraph.
The charge framed against the accused-appellant does not, however,state clearly whether the offence which he is alleged to have committedis the one referred to in paragraph (1) of Regulation 26 or the one referredto in paragraph (4). In my opinion the charge has not been framed inaccordance with the requirements of section 168 (1) of the Qriminal Pro-cedure Code. The defective nature of the charge is such that the accusedmust necessarily have been misled in his defence. I therefore quash hisConviction and the sentence passed on him, and remit the proceedings"to the Court below for a new trial to be had before another Magistrate on acharge framed in accordance with the requirements of section 168 (1) ofthe Criminal Procedure Code.
WILBERT, Appellant, and INSPECTOR OF POLICE, WELLAWATTE, Respondent