007-NLR-NLR-V-70-A.-M.-A.-HAMEED-and-another-Appellants-and-THE-QUEEN-Respondent.pdf
G. P. A. SILVA, J.—Hameed v. The Queen
19
1967 Present: G. P. A. Silva, J., and Siva Supramaniam, J.
A. M. A. HAMEED and another, Appellants, and THE QUEEN,
Respondent
S. C. 3-4166—D. C. Gam'paha {Bribery), 1JB.
Bribery Act—Prosecution under section 19—Burden of proof—Can Court take judicialnotice of certain facts T
In a prosecution, under section 19 of the Bribery Act, against a police officerfor accepting a gratification which he was not authorised by law or the terms ofhis employment to receive, the court cannot take judicial notice that a policeofficer is not authorised by law or the terms of his employment to accept agratification for doing an act which would have the effect of interfering withthe course of justice in a proceeding pending before a court of law.
-A.PPEAL from a judgment of the District Court, Gampaha.
E. Chitty, Q.C. with E.H.C. Jayetileke, for the Accused-Appellant.
Kenneth Seneviratne, Crown Counsel, for the Attorney-General.
May 10, 1967. G. P. A. Silva, J.—
In this case the 1st accused-appellant was charged with the followingoffence, namely, that while being a Public Servant, to wit, PoliceSergeant No. 1775, Meegahawatta Police, did accept from one B. P.Seiman a gratification of a sum of Rs. 25 which gratification he was notauthorised by law or the terms of his employme'lo to receive, and that hethereby committed an offence punishable under section 19 read withsection 89 (6) of the Bribery Act. The 2nd accused-appellant was chargedwith having, as a Public Servant to wit, Police Constable No. 26,Meegahawatta Police, abutted the 1st accused in the commission of thesaid offences. Both the accused were convicted of the said charges.
20
G. P. A. SILVA, J.—Uamc-ed v. The Queen
It was contended by learned Counsel for the appellants, and this is no^contradicted by Crown Counsel, that there was no evidence in the casethat the 1st accused was not authorised by law or the terms of hisemployment to receive the said gratification. In the absence of suchevidence, he submitted, the conviction could not be sustained, and for thissubmission he relied on the recent Divisional Bench decision in MohamedAuf v. The Queen? in which it was held that the burden of proving that theacceptance of a gratification was not authorised by the terms of theemployment lay on the prosecution and that in the absence of such evidencethe prosecution could not maintain this charge. Counsel for the Crownhowever sought to distinguish the present case from the Divisional Benchcase on the footing that the facts of this case were different and that, onthe facts that were established, the court could take judicial notice that apolice officer was not authorised by law or the terms of his employment toaccept a gratification for doing an act which would have the effect of inter-fering with the course of justice in a proceeding pending before a court of* law. He based this argument not on any particular provision of law buton the principle that there were certain notorious facts which were so wellknown that any court could take judicial notice of them and that one suchinstance was that a police officer was debarred from accepting a gratifi-cation for the purpose for which he accepted it in this case. Acceptanceof this submission would be tantamount to a decision that the burdenthat is cast on the prosecution of proving certain essential ingredients ofan offence would depend on the facts of each case. The pronouncementmade in the Divisional Bench decision referred to leaves no room for sucha conclusion.
Mr. Chitty raised a further agrument which appeared to have muchsubstance, namely, that even if this Court was prepared to take judicialnotice of the aforementioned fact, it would not affirm the convictionunless it was clear that the trial Judge was invited to consider this questionwithout evidence and that he decided to take judicial notice of that factand that the conviction was based on such a decision. Admittedly inthis case, the trial Judge was not invited to consider this matter at allnor did he do so proprio motu. It must, therefore, be assumed that thedecision to convict the accused was arrived at without proof of one of thenecessary ingredients of the offence, namely, that the acceptance of thegratification was not authorised by law or the terms of employment of the1st accused. I do not therefore find sufficient reason to distinguish theprinciple involved in this case from that of the Divisional Bench casereferred to in regard to the proof of the essential ingredients of theoffence.
For these reasons I set aside the conviction and sentence and acquitthe accused-appellants.
Siva Sutbamaniam, J.—I agree.
Appeal allowed.
1 (1967) 69 N. L. R. 337.