ARUMUGAM alias PODITHAMBIv.
RANGE FOREST OFFICER
COURT OF APPEAL.
ABEYWARDENA, J. AND RAMANATHAN. J.
C.A. 136/83, M.C. MORAWAKA 19134.
APRIL 4, 1986.
Evidence-Charge under statutory rule, regulation or by-law published inGazette-ls production of Gazette by the prosecution necessary?-JudicialNotice-Evidence of bad character led at trial by Judge-Is it fatal to a conviction?When a charge is laid under a statutory rule, regulation or by-law which is required bylaw to be published in the Government Gazette the prosecution need not produce thegazette in which the rule or regulation or by-law appears m proof thereof. Reference tothe particular gazette is sufficient. The Court can take judicial notice of the rule,regulation or by-law. The only exception to this is where the defence queries theexistence of such an offence or law. The list of facts given in s. 57 of the EvidenceOrdinance of which the Court may take judicial notice is not exhaustive and it is open tothe Court to take notice of other facts.
Where evidence of bad character is given in a trial it is not fatal to a conviction by ajudge (without a jury) if there is evidence to convict the accused and the judge is notinfluenced by the evidence of bad character.
Where the judge merely directs his mind to the question of the credibility of the accusedbut casts no burden on the accused, the conviction is not illegal
Cases refered to:
Peter Smgho v. Werapitiya – 11953) 55 NLR 155
' Bazeerv. Perera – (1978-79) 2 SLR 185
Sivasampu v. Juan Appu – 11937) 38 NLR 369.
Gunananda Thero v. Atukoraie – 19 CLW 77.
State of Bombay v. Balsara – AIR (195 1) S.C. 318. 329
Bogstra v. Co-operative Condensed Fabnk – (1943) 44 NLR 272
Hassen v. I. P . Panadura – f1960) 72 NLR 449
King v. Perera – (1941) 42 NLR 526
APPEAL from conviction by the Magistrate of Morawaka.
R. I. Obeysekera. P.C. with K. Ediriwickrema and C. Padmasekera for the appellant.
T. Walaliyadde. State Counsel for Attorney-General.
Cur. adv. vuti.
May 30. 1986.
* RAMANATHAN, J.
The accused-appellant M. Arumugam was charged under two countsof the Forest Ordinance-
That he did on or about the 28.12.80 enter withoutauthorisation into a reserve forest to wit – the DiyadawaReserve Forest which was declared to be a reserve forest byproclamation in the Government Gazette No. 8,240 of21.8.1936 and thereby committed an offence of trespassingin a reserve forest punishable under section 6 (a) of the ForestOrdinance.
That at the time and place aforesaid and in the course of thesame transaction he did cut a milla tree and thereby committedan offence punishable under section 7 (1) of the ForestOrdinance.
The case was heard in the Magistrate's Court of Deniyaya and aftertrial the Magistrate found the accused guilty on both counts. On count
he was fined Rs. 500 with a default sentence of 3 months. On count
he was sentenced to 3 years' rigorous imprisonment.
The prosecution case was unfolded by the following witnesses. M.G. A. Silva of the Survey Department. Galle had produced for theinspection of court the Forest Survey Preliminary Plan No. 30. Fiestated the plan contained a lot numbered 35 and that this lot 35 hadundergone amendments and lot 35 was now numbered lot 129.Furthermore, lot 1 29 was a reserved forest belonging to the State andDiyadawa was included within the Reserve Forest. The present chargereferred to an offence committed within lot 1 29.
The next witness called by the prosecution was D. T. L. Appuhamy,a Range Forest Officer and has stated that on 28.1 2.80 he and S. K.Abeyratne a beat officer had detected the accused cutting a milla treewithin the Diyadawa Reserve Forest. As the accused failed to producethe permit he was taken into custody along with the axe he had usedto cut the tree. On the way to the forest office, the accused grabbedthe axe from the Forest Officer and ran away. They had gone to the- Police Station and with the assistance of the Police taken the accusedinto custody. This witness's evidence has been corroborated by theforest beat officer S. K. Abeyratne. The prosecution closed its case.
The accused gave evidence and stated that he lived close to the0forest His cow had got loose and gone into the forest. He had goneinto the forest and caught the cow and returned to his house. Whenhe was chopping an albizzia tree in his compound the forest officershad come and asked him as to why he had entered the forest. Theaccused had replied that it was to retrieve his cow. Then the forestofficers had asked for the accused's axe. The accused had refused togive his axe and an argument followed between the accused and theForest Officers. Thereafter the forest officers had gone away andsubsequently returned with a police constable and taken the accusedinto custody. The accused denied having been taken into custodywhile cutting a milla tree.
The mam submissions made by counsel for the appellant were asfollows:
Firstly, the prosecution had not produced the particular gazettementioned in the charge sheet to establish the boundaries of thereserve forest which was an essential ingredient m the charge. Thisfailure to produce the gazette was fatal to the prosecution case, andM. S. A. Silva's oral evidence by referring to a map was insufficient toestablish the boundaries of the reserve forest. The nulla logs cut downby the accused had not been produced m court as a production.
Secondly, the trial judge had permuted inadmissible evidence of theaccused's bad character that the accused had been convicted of anoffence previously,mto the record This was prejudicial to the accusedgetting a fair trial. Learned counsel cued Peter Smgho v Werapitiya(1).
Thirdly, the trial judge had misdirected himself on the burden ofproof and had placed a high burden of proof on the accused-appellant.
On the question of the failure to produce the specific gazettereferred to m the charge, learned counsel referred to Bazeer v. Perera(2). In this case it was held that the charge did not refer accurately tothe reserved forest specified m the gazette and hence the convictionwas bad.
It was also observed m that case that it was incumbent lor theprosecution to produce the gazette in evidence at the trial to establishthe boundaries of the National Park and oral evidence was insufficient.It was further held that the Order did not fall into any of the classes ofdocuments enumerated in section 57 of the Evidence Ordinance ofwhich the court was bound to take judicial notice.
I have perused section 57 of the Evidence Ordinance which states acourt shall take judicial notice of the following facts:
"All laws or rules having the force of law, now or heretofore inforce or hereafter to be in force in any part of Ceylon".
It would appear to me that the term 'All Laws' must necessarilyinclude written laws. The term 'Written Law' is defined in th.eInterpretation Ordinance, section 2 (gg) as-
"Written laws shall mean and include 'alLOrdinances and Acts of
Parliament, and all orders, proclamations, letters patent, rules,by-laws, regulations, warrants and process of every kind made orissued by anybody or person having authority under any statutory orother enactment to make or issue the same in and for Ceylon".
This definition includes proclamations, rules, by-laws andregulations. It appears that proclamations and orders would fall withinone of the classes of documents falling within section 57(1) of theEvidehce Ordinance provided they constitute "Law". Thus where acharge is laid under a statutory rule, regulation or by-law which isrequired by law to be published in a Government Gazette it has beenheld that the prosecution is not bound to produce the gazette in whichthe rule or regulation or by-law appears in proof thereof in order toestablish the charge. There would be sufficient compliance with therequirement of law if in the complaint or report to court there is areference to the gazette in which the rule appears. (See Sivasampu v.Juan Appu (3)).
To answer the question whether the contents of a proclamation ororder constitute "Law" one has to examine the enabling Acrand theorder contained m the proclamation or order. Section 6(a) of theForest Ordinance provides that any person who trespasses in areserved forest shall be guilty of an offence. Similarly, section 7(1)■creates the offence of cutting'a tree in a reserved forest. Section 78defines a reserved forest as a forest and every part of a forest declaredunder the relevant provisions of the law. The order contained in theproclamation declares the land within certain specified limits as'reserved forests', for the purpose of the Ordinance.
To ascertain whether there is any prohibition of any specific type ofactivity within any particular forest one has therefore to examine theOrdinance and the relevant regulation or order made thereunder. Theoffence created by the Ordinance is inchoate until the Order is made
specifying the”reserved forest'. So it is the Act and the Order whichjointly specify the offence and thereby constitute law'. As long as the°proclamation is part of the law. the court has a duty to judicially noticeit. (See Gunananda Thero v. Atukorale (4)).
It is pertinent at this stage to refer to the treatise on the Law ofEvidence by Woodroffe and Amir Ali — 14th Edition. Vol. 2. pages1472 and 1473 where the following passage occurs:
"In State of Bombay v. Balsara (5) the Supreme Court pointed outthat a notification issued in exercise of powers conferred by aspecific provision in an Act of the Legislature, has the force of law as
if made by the Legislature itselfafter this
pronouncement of the Supreme Court, the question whether anotification issued by the Government or any Competent Authorityin the exercise of delegated powers of legislation can be judiciallynoticed cannot be doubted. The notification is part of law itself andtherefore judicial notice of the notification can be taken undersection 57 of the Evidence Act".
The learned authors have also proceeded to consider whether proofof such notifications are necessary and stated that-
"Indeed it is not necessary that notifications should be tenderedas exhibits in the case for the court has to take judicial notice ofthem".
I am in respectful agreement with these views. A duty is cast on courtto give judicial recognition to a.law wherever it is found. A Regulationor Proclamation which is part of the law need not be proved by leadingevidence of its contents since the law requires that the court should"judicially notice" such law without any such proof. The onlyexception, in my view, to this would be where the defence queries theexistence of such an offence (or law). In this case no such query wasraised.
The learned Magistrate was entitled to proceed on the assumptionthat it was an offence to commit the alleged acts in the DiyadawaForest, without requiring proof (by means of the gazette) that the latterforest was .indeed made a reserved forest by proclamation. Therewas. in my view, sufficient evidence that the act was committed in theDiyadawa Reserve Forest. I am of the view that the non-production ofthe gazette is therefore not fatal to the conviction.
Although section 57 of the Evidence Ordinance gives a list of thefacts which the court shall take judicial notice, this list is not exhaustiveand it is open to a court to take notice of facts other than thosementioned in the section. The principle is set out in Bogsrra v.Co-operative Condensed Fabrik (6). In Hassan v. I. P. Panadura (7) forthe purpose of ascertaining whether the village of Keselwatta (wherethe offence took place) came within the province of Panadura,Weeramantry, J. held that he was entitled by virtue of section 57 ofthe Evidence Ordinance to consult an appropriate book of referenceprepared by the Department of Census and Statistics, therebysatisfying himself that there was sufficient material that the offencewas committed within the area proclaimed.
The second submission made by counsel for the appellant was thatthe trial judge had permitted inadmissible evidence relating to theaccused's bad character to be elicited and thereby the accused hadbeen prejudiced. He^cited the case of Peter Singho<v. Werapitiya(supra) where Gratiaen, J. observed in a case tried before a Magistrate(not before a Jury) that,he does not see how this distinction can bedrawn where a judge of first instance has in spite .of his legal trainingand experience permitted through an improper appreciation of law toallow evidence to be led which was of such a character as to prejudicethe chance of a fair trial on its real issues of a case. Gratiaen, J. did notfollow King v. Perera (8) but considered whether to send the case backbefore another Magistrate for retrial. As the offence was committedover four years ago it did not seem just to call upon the accused todefend himself a second time. Therefore he set aside the convictionand acquitted the accused.
In Peter Smgho v. Werapitya (supra) Gratiaen, J sat alone while inKing v. Perera (supra) a different judicial attitude was adopted.Howard, C.J. sat with Soertsz, J. who agreed that in a case whereevidence of bad character of the accused had been given m a trialbefore a District Judge, it was not fatal to a conviction as there wasample other evidence to convict the accused and the Judge was notinfluenced by the fact of the accused's bad character.
I do not think that any of the judges who sat in these two caseswished the judgment to lay down an inveterate principle of law. Theirviews have to be considered in the background of the cases beforethem. I am prepared however to state that a mere misreception ofevidence (even of bad character) will not necessarily vitiate theconviction especially if the rest of the evidence placed before the court(like in this case) was of a satisfactory nature.
It was also submitted by counsel for the appellant that theMagistrate had misdirected himself on the burden of proof by casting •a burden on the accused.
However, I find that having referred to the evidence given by theaccused the Magistrate has merely made the observation that theversion of the facts given by the accused has not been supported byany other evidence. He has gone on to observe that if this version ofthe facts were true the accused had the opportunity of going to thePolice or Grama Sevaka at that time, and that the evidence does notdisclose that the accused did any such thing.
It is clear that there has been no misdirection on the burden of proofas in the next paragraph the Magistrate has expressly stated that bothcha.rges against the accused have been proved beyond a reasonabledoubt
I am satisfied that the Magistrate has placed no burden on theaccused and merely directed his mind to the question of the credibilityof the accused as a witness and that evidence of the accused doesnot even cast a doubt on the prosecution evidence
We are satisfied that the appellant has had a fair and impartial trial.The trial judge has accepted the evidence of Appuhamy which wascorroborated by Abeyratne. The trial judge has satisfied himself thatthe offence was committed within Diyadawa Reserve Forest and hisfindings are supported by evidence We. accordingly affirm theconviction of the accused-appellant on both counts
On the question of sentence we have considered the fact that theoffence was commuted over five years ago On count 2 we havedecided to reduce the sentence from 3 years' imprisonment to2 years'imprisonment. We are also of the opinion, that the ends of justice willbe met by suspending this 2 years' imprisonment for 7 years' fromtoday. On count 1 the fine and the default sentence in lieu will stand
Subject to the above variation m the sentence on count 2 the appealis dismissed. The Registrar is directed to return the record to theMagistrate's Court to enable the Magistrate to comply with theprovisions of section 303 of the Criminal Procedure Code
ABE V WARDEN A, J. – I agree.