RAUF AND OTHERS -v.
THE RANGE FOREST OFFICER, PUTTALAM
COURT OF APPEALGRERO, J.
C.A. 258 – 260/85
M.C. PUTTALAM NO. 17095
12 SEPTEMBER, 1991
Forest Ordinance – Entry into forest reserve and transporting teak logs -Misjoinder of charges – Omission of words “in the course of the sametransaction" – Prejudice.
The omission to mention the words ‘in the course of the same transaction’ in count2 has caused the accused no prejudice as all the ingredients of the offence werestated. Hence the objection of misjoinder fails.
Though the Magistrate's order was scrappy there was evidence to support count1 of unlawful entry into a forest reserve. The evidence however did not establishbeyond reasonable doubt that the accused transported ten logs of teak.
As the accused were first offenders, a jail term was not justified. A fine would besufficient.
APPEAL from the order of Magistrate’s Court. Puttalam.
G. J. i. Alagaratne for 3rd accused-appellant.
K. Waidyaratne, S.C. for complainant-respondent.
Cur adv vult.
1st October, 1991.
The accused-appellants in the said three cases have filed theirpetition of appeal against the order of the Learned Magistrate of
Puttalam. The accused, according to the charge-sheet, had beencharged on two counts to wit:
That they have entered (trespassed) a reserved forest bearingNo. lot 5, Sellakandal and thereby committed an offenceunder Section 6 of the Forest Ordinance.
That they engaged in the act of transporting ten logs of teakwithout a permit from the said reserved forest Sellakandaland thereby committed an offence punishable underSection 7 of the Forest Ordinance.
At the end of the trial, the Learned Magistrate on 23.5.85convicted all three accused on both counts and'on 29.5.85 he hadsentenced each accused to 6 months R.l. on each count. Againstthis order, all the three accused appealed to this Court.
When this case was taken up before the Court on 12.9.91 the 1stand the 2nd accused-appellants were absent and they were notrepresented by any Counsel, but the 3rd accused-appellant wasrepresented by Attorney-at-Law Mr. Alagaratna. He made hissubmissions in such a manner that the Court was able to look into theappeals of the 1st and 2nd accused although they were notrepresented by any Counsel. Therefore, the Court is of the view noprejudice is caused to them although no Counsel appeared for them.The Learned Counsel for the 3rd accused-appellant submitted toCourt that in the first place, there has been a misjoinder of charges inthe charge sheet in question. He pointed out that there should havebeen two distinct charges and it is not possible to have these twocharges in one charge-sheet, unless there appears in count No. 2,that the offence has been committed in the course of the sametransaction as that of count No. 1. This Court perused the chargesheet that is filed of record. With regard to Count No. 2, the words “atthe above stated place and at the same time the accused committedan offence punishable under Section 7” are stated very clearly. Nodoubt that the words “in the course of the same transaction” are notgiven in the said charge-sheet, but the question will be as theLearned State Counsel argued whether the accused-appellants weregreatly prejudiced or an injustice has been caused to them for not
having the words “in the course of the same transaction” in thecharge sheet. Apart from those words (in the course of the sametransaction), the other necessary ingredients that should be presentin a charge are embodied in this charge-sheet. Therefore, the Courtcannot come to the conclusion that an injustice has been caused tothe accused for the simple reason that in regard to count No. 2, thewords “in the course of the same transaction” are not stated. As allthe necessary ingredients that should be contained in a charge arefound other than the said words “in the course of the sametransaction” this Court is of the view that there is no misjoinder ofcharges as adduced by the Learned Counsel for the 3rd accused-appellant. The Learned Counsel for the 3rd accused-appellantdealing with the count No. 1 stated to Court that there is no evidencewhatsoever to show that these accused-appelfants transported tenlogs of teak on the day in question. Therefore, he submitted to Courtthat it was not correct for the Magistrate to convict the said accused-appellants on count 2, in view of thq fact that there was no evidenceto show that they transported ten logs of teak. He also drew theattention of Court to the order of the Learned Magistrate and stated toCourt that the Magistrate had acted on a statement of a confessionalnature made by the accused in this case. Therefore, he stated thatthe conviction with regard to count No. 2 cannot be sustained. Hefurther submitted to Court that the Magistrate has not addressed hismind with regard to the question of trespass in this case andtherefore that conviction in respect of count No. 2 cannot besustained.
At the outset, it must be stated that this Court is of the view that theorder of the Learned Magistrate is a scrappy one. This Court is of theview that a much better order should have been written by theLearned Magistrate than the one which he has already written.Although it was a scrappy order yet this Court feels that the LearnedMagistrate had addressed his mind to the fact that they entered thereserved forest which is grown with the teak plantation. In fact, in hisorder, he has stated when the prosecution witnesses went into theplantation area, they had seen five logs by the side of the road. Againhe stated that it is not necessary for the accused to wait in an areawhere there is a teak plantation. Therefore, it could be possible tocome to the conclusion that at the time of writing his order (althoughscrappy) the Learned Magistrate had addressed his mind to thequestion of accused entering the reserved forest on the day inquestion.
In fact this Court perused the evidence of the prosecutionwitnesses and they have given evidence to show that these accusedhave entered into the reserved forest area on the day of the incident.This Court is of the view that there is ample evidence before theLearned Magistrate to convict these three accused-appeliants oncount No. 1.
The Learned Counsel for the 3rd accused-appellant stated toCourt that the Learned Magistrate had not properly addressed hismind with regard to the evidence given by the accused in this case.Therefore, he stated that the Learned Magistrate has come to anerroneous conclusion with regard to their presence in the area wherethey were found. In his order, the Magistrate had given reasons as towhy he rejected the defence put forward by the accused-appellants.This Court is of the view that he had given sufficient reasons todisbelieve the version of the accused-appellants and therefore thisCourt cannot agree with the contention of the Learned Counsel forthe 3rd accused-appellant that he had come to an erroneousconclusion without proper assessment of the evidence of the saidaccused. This Court after considering the evidence placed beforethe Learned Magistrate with regard to the removal of 10 logs of teak,agrees with the submissions made by the Learned Counsel for the3rd accused-appellant that there is no sufficient evidence to convictthe accused with regard to count No. 2. In fact, there was evidenceto show that these three accused on the day in question werecarrying one log of teak, but not ten logs of teak. In fact, the LearnedMagistrate had drawn an inference with regard to the other logsbecause there had been some other logs lying near to the placewhere the accused were detected; but this Court is of the view thatsuch an inference could not be drawn in view of the evidence placedbefore the Magistrate. In fact, this Court is of the view that countNo. 2 has not been proved beyond reasonable doubt due to the lackof sufficient evidence. Therefore, the conviction and sentences withregard to count No. 2 are hereby set aside and all the three accused-appellants are acquitted on count No. 2 of the charge sheet.
As this Court sets aside the conviction of the accused-appellantsin respect of count No. 2 for the above stated reasons it is notnecessary to go into the question as to whether the Magistrate tookinto consideration a confessional statement of an accused-appellantat the time he wrote his order.
For the above stated reasons, the conviction of the accused-appellants with regard to count No. 1 of the charge sheet is herebyaffirmed. With regard to the question of sentence passed by theLearned Magistrate, on count No. 1, it seems that he had imposedthe maximum jail sentence prescribed by Section 6 of the ForestOrdinance.
The record does not speak that the accused-appellants hadprevious convictions of similar offences as stated in the charge-sheet.
Therefore it is justifiable to treat them as first offenders and imposea fine instead of the maximum jail sentence.
The sentence of 6 months R.l. in respect of count No. 1 in respectof all the accused-appellants is hereby set aside and a fine ofRs. 500/- on each of them is hereby imposed. If the said fine is notpaid, each accused is given a default sentence of 2 months R.l.
Subject to these variations, the appeal is dismissed.
Appeal dismissed subject to variations.
RAUF AND OTHERS V. THE RANGE FOREST OFFICER PUTTALAM