088-NLR-NLR-V-36-ALWIS-v.-ARALISHAMY.pdf
418
Alwis v. Aralishamy.
1935Present: Maartensz J.
ALWIS t>. ARALISHAMYjj04-P. C. Matara, 3,054.
Excise Ordinance—Charges of drawing toddy without a licence and of failing to' give information of offence—Misjoinder of charges—Proof of intention
in latter charge—Ordinance No. 8 of 1912, ss. 43 and 47.
Where two persons were charged together, the one with drawing sweettoddy from coconut trees without a licence,. and the other with, beingowner of- the land, having failed to give information of the offence to theproper authorities,—
Held, that they cannot be tried together in the same proceedings.
Held, further, that, in the case >of the latter charge there must be proofthat failure to give information was intentional.
^J^PPEAL. from a conviction by th6 Police Magistrate of Matara.
A. Rajapakse, for the second accused, appellant.
M.F. S. Pulle, C. C., for the complainant, respondent.
MAARTENSZ J.~-AJtois v. Aralishamy. ■-
419
February 25, 1935. Maabtensz J.——
There were two accused in this case. The first accused was chargedwith tapping and drawing sweet toddy from certain coconut- trees without -a licence. The second accused was charged with “ being the owner'of the'land Ketakelagahawatta and failing to give information of the" same tothe proper authorities”. The first accused- was convicted tinder section43 (d) and (e) and sentenced to pay a firieofRs. 25. He has not appealed,and I understand that an application for revision made-by him has already "been refused. The second accused was’convicted under'the* provisionsof section 47 and sentenced to pay a fine of Rs; 10. She has appealed ona matter of law, namely, that it has not been proved that She whs -thesowner of the land Ketakelagahawatta and- that her-: failure to‘ giveinformation was intentional.• — -•*
There is a'certain ^irregularity in these proceedings- apart from* the-matters of law certified to in the petition of appeal to which I thinkatten–tion should be drawn, as it vitiates the proceedings, and I should have-hadto consider it in revision if the legal objections could not" be sustained.The irregularity is "that the two accused were charged and t^ed together. *Under section 184 of the Criminal Procedure Code-two dr. more personsmay be tried together when they were accused of jointly committing the'same offence or of committing different offences in’the-same'transaction;or where one of them is accused of committing an offence and the-otheror others of abetment of or attempt to commit such offence. The twoaccused in this case were not accused of jointly committing the sameoffence nor was the second accused charged with abetting or attemptingto commit the offence which the first accused is alleged .to have com-mitted; and the only ground on which they could possibly have beencharged and tried together was that they committed different offences inthe same transaction. In my opinion a person who is accused of failingto give notice that another person is or has been committing an offencecannot be said to have committed a different offence in the same trans-action, and I hold that the first add the second accused should not havebeen charged and tried together. It is,-however, unnecessary for . me todeal with the case in revision as, in my opinion, the legal objections tothe conviction stated in the petition of appeal must be sustained. Beforethe second accused could be convicted of-a breach of the provisions ofsection 40 (a) it must be proved that she was the owner of" the land onwhich the excisable article was 'manufactured, and ip. view of'the pro-visions of section 47 of the Ordinance which only penalizes an intentionalomission, that her failure to comply With its provisions was intentional—that is to say, that she being aware that first accused was manufacturingan excisable article on her-land without a licence failed to give notice ofthe same to one or other of the officials mentioned in the section. Theevidence that the second accused was the owfier fails, as the PoliceHeadman Haramanis Silva, who was the only,witness who-deposed, to theownership of the land, has not distinguished between the two accused.His evidence on the point is as follower—“ On September 21 about7 a.m,, I went with David, whom I met, to. Ketakelagahawatta belongingto accused”. It is not alleged that the land; belonged to both-accusedand the evidence leaves it in doubt whether'the .land belongedto thefirst
420
MACDONELJL CJ.—Perumal v. Ahamadu.
accused or second accused, and the second accused is entitled to thebenefit of the doubt. I must here point out that in several places in theevidence the witnesses refer to “the accused” when obviously theymeant to refer to one or other of the accused and not to both.
There is also no evidence direct or indirect that the second accusedintentionally failed to give the notice required by section 40.
Direct evidence of an intentional omission cannot as a rule be obtained,but where such evidence is not available facts should be proved from whichit could be inferred that the accused knew that the illegal acts were beingcommitted. Such an inference might be drawn from evidence that theaccused lived in the immediate vicinity of the place where the offence wascommitted, that he was closely related to or associated with the personcommitting the illegal acts, that the illegal acts were being committed forsuch a length of time that the accused could not but be aware of theircommission.
There is no such evidence in this case. In fact I do not think, judgingfrom the evidence in the case, that the prosecutor realized that there mustbe proof that the second accused intentionally omitted to comply withthe provisions of the section for a breach of which she was charged.- I amnot prepared to give the prosecution a further opportunity of proving thecharge against the second accused, and I quash the conviction andacquit her.
Set aside.