053-NLR-NLR-V-71-P.-V.-YOGAGURU-Appellant-and-V.-A.-KANDIAH-Inspector-of-Police-Respondent.pdf
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PANDITA-GUNAWARDENE, J.—Yogaguru v. Kandiah
1968Present: Pandita-Gunawardene, J.
P.V. YOGAGURU, Appellant, and V.A. KANDIAH (Inspector of Police),
Respondent
S. C. 685168—M. C. Point Pedro, 2028
Immigrants and Emigrants Act (Cap. 351), aa amended by Act No. 68 of 1961—Section45 A (1) (b)—Charge of concealing or harbouring a person who has enteredor is remaining in Ceylon illicitly—Whether such charge is bad for duplicity —Criminal Procedure Code, ss. 179, 180, 181, 184.
Where a person is charged under section 45 A (1) (b) of the Immigrants andEmigrants Act with having concealed or harboured a person who entered Ceylonor is remaining in Ceylon, in contravention of the provisions of the Immigrantsand Emigrants Act, it cannot be said that there are two offences in one chargeand that, therefore, the charge is bad for duplicity. In such a case, the words“ conceals or harbours ” involve one single act and do not constitute twodistinct and separate acts.
A.PPEAL from a judgment of the Magistrate’s Court, Point Pedro.
S. C. Crossette-Thambiah, witli A. M. Ooomaraswamy, for the Accused-Appellant.
Ranjith Gunatilleke, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
September 4 1968. Pandita-Gunawardene, J.—
This is an appeal by the accused-appellant from his conviction ofconcealing or harbouring ten persons to wit: Vaithianathan Renganathan,Sellappa Bapu, Muthusamy Kasyappan, Vengadasamy Sethuraman,Mariappan Ramasamy, Ramasamy Muthiah, Rajagopal Govindasamy,Renganathan, Ramu, Muthusamy Ramasamy and Ramasamy Viswana-than, all of South India knowing that such persons had entered Ceylon incontravention of Sections 9 and 10 of the Immigration and EmigrationAct Chapter 351 of L. E. C. or has remained in Ceylon in contraventionof Section 15 (e) of the said Act as amended by Act No. 68 of 1961punishable under section 45 A (1) of the Act as so amended.
The facts are these : on 9.4.68 upon receipt of certain information policesergeant Ratnasabapathy of Point Pedro Police proceeded to No. 415Imbiliddy, Alvai North. These premises had a cad j an fence enclosing it.There was one gate leading to the premises which had been secured witha coir rope. In these premises there were two buildings about 18 to 25feet apart, their entrances facing each other. One of the buildings wasa house consisting of a room and a hall. The other was an open hut.The accused and his wife were in the open hut r/hile the 10 persons named
PANDITA-GUNAWARDENE, J.—Yogaguru v. Kandiah
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in the charge were found in the house which has also been described asan enclosed hut. Batnasabapathy had to force open the gate to enterthe premises. The ten persons who were found in the house in thesepremises are clearly immigrants. There is ample evidence to establishthe fact that the accused was the chief occupant of these premises andwas living there at this time. The learned Magistrate has examined theevidence very closely and exhaustively and I am satisfied that his find-ings of fact are correct and beyond challenge. Learned Counsel for theappellant has however strongly urged that the charge is bad for duplicity,in that there are two offences in one charge and the conviction cannottherefore stand. Section 45 A (1) (6) of the Immigration and EmigrationAmendment Act, No. 68 of 1961 provides that “ any person who concealsor harbours any other person in any place whatsoever, or transports anyother person or causes any other person to be transported by any meanswhatsoever, knowing that such other person has entered Ceylon or is •remaining in Ceylondn contravention of any provision of this Act or ofany order or regulation made thereunder shall be guilty of an offenceunder this Act and shall on conviction be liable to rigorous imprisonmentfor a term of not less that two years and of not more than five years.”
It has been argued that the words 1 conceals or harbours ’ create inthis section two distinct offences. . If these be two distinct offences thenthe lew requires that in respect of each distinct offence there should be aseparate charge and every such charge must be tried separately exceptin the cases mentioned in Sections 179, 180, 181 and 184 of the CriminalProcedure Code.
The fundamental question therefore is, “ Do the words ‘ conceals orharbours f in this section involve one act or do they constitute twodistinct and separate acts ? ” ■ For a consideration of this question itwould primarily be obligatory to understand what the words ‘ conceal *and ‘ harbour ’ mean. It would seem necessary in the first instance toseek the definition of these words. In the Oxford English Dictionary‘ conceal ’ means “ to keep but of sight, to hide ” ; ° harbour ’ means“ to lodge, take shelter ” (and shelter “ to screen from punishment ”).
It is apparent that these words. “ conceals or harbours ” allege oneactivity, namely * of keeping away ’. In this connection it is useful tomention the case of Thomson v. Knights1 which would seem to beof assistance. In that case the charge was one of being in charge ofa motor vehicle whilst under the influence of drink or a drug incontravention of section 15 (1) of the Road Traffic Act, 1930 (1).It was contended that there were two offences : 1. being in charge of amotor vehicle whilst under the influence of drink. 2. being in charge ofa motor vehicle whilst under the influence of drug. Lord Goddard, C.J.,said 2:
“ I do not think parliament here meant to create one offence of beingincapable by reason of a drug and another offence of being incapableby reason of drinks. What parliament intended to provide was that111947} 1 K. B. 336.• ibid, at page 338.
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PANDITA-GUXAWARDEXE, J. — Yoijayuru v. Kandiah
a man in charge of a [motor car in a self-induced state of incapacity,whether that incapacity was due to drink or drugs, the man commitsan offence in each of those cases. In my opinion the conviction isnot for an alternative offence nor can it be said to be in respect of twooffences. The offence was being in charge of the car when in thisparticular state of incapacity.”
Similarly I do not think parliament here intended to create two offences:
one of concealing any other personknowing that such other
person has entered Ceylon or remaining in Ceylon in contravention ofany provision of this Act and the other of harbouring any other person
in any place whatsoeverknowing that such other person has
entered Ceylon «»r is remaining in Ceylon in contravention of anyprovision of this Act.
The gravamen of the charge under this section can he rightly said tolie one of ' keeping away It would appear to me that the words* conceal ’ and ‘ harbour ’ arc used adjectively to describe more fullythe one act complained of.
For these reasons it is abundantly clear that what was being consideredin this section was a single act. Therefore the submission that the chargeis bad for duplicity must fail.
The appeal is dismissed.
Appeal dismissed.