024-NLR-NLR-V-48-APPUHAMY-et-al.-Appellants-and-EKANAYAKE-S.-I.-Police-Respondent.pdf
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NAGAXJNGAM A.J.—Appuhatny v. Ekanayake.
1946Present: Nagalingam AJ.
APPUHAMY et al., Appellants, and EKANAYAKE (S. I.
Police), Respondent.
910-911—M. C. Kandy, 23,126.
Charge of transporting wheat without permit—No reference made to Gazetteconstituting the offence—Reference made to other Gazettes which had noapplication—Proper order for Court to make.
The appellants were convicted of having transported wheat without apermit. The charge, however, was defective in that there was noreference to the Gazette which constituted the offence but, on the contrary,reference was made to certain other Gazettes which had in fact noapplication whatsoever.
Held, that the Court should, in the circumstances, discharge theaccused and not remit the case for further proceedings.
A
PPEALS against two convictions from the Magistrate’s Court,Kandy.
A. Rajapakse, K.C. (with him H. W. Jayewardene), for the accused,appellant.
J.G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
December 17, 1946. Nagalingam A.J.—
The two appellants in this case have been convicted of having trans-ported 80 bags of wheat from one place in Ceylon to another place withouta permit and the first accused-appellant has been sentenced to pay afine of Rs. 25 and the second accused-appellant a fine of Rs. 800.
The only point taken in appeal is that the charge is defective in thatthe laws the breach of which was alleged to have been committed by theaccused have not only not been set out with any degree of precision butthat on the contrary the laws referred to in the charge do not disclose theoffence with which they have been charged. In view of the objectiontaken to the conviction I think it best to set out the relevant portionof the charge, which reads as follows : —
“You are hereby charged that you did within the jurisdiction ofthis Court at Kadugannawa on 22.3.46 transport a quantity ofgrain, to wit, 80 bags broken wheat in lorry No. CE 4939 from oneplace in Ceylon to another place without a permit in breach of section 4of the Defence (Purchase of Foodstuffs) Regulation published inGazette No. 9,004 of 11.9.42 and 9,380 of 16.3.46 and 9,530 of12.3.46 and thereby committed an offence punishable under section52 (1) and (3) of the Defence (Miscellaneous) Regulations.”
Later the charge was amended by the deletion of the word “broken”before the word “ wheat ”, but the amendment has no material bearingon the question that has now arisen for determination.
The first Gazette quoted is Gazette No. 9,004 of September 11, 1942,which refers to transport of country rice and country paddy and makesno reference to wheat. The next Gazette referred to is one bearing
72NAGAL.INGAM A_J.—Appuhamy v. Ekanayake.
No. 9,380 of March 16, 1946, but it is clear that there is no such Gazettebearing that date. Learned Crown Counsel says that the number of theGazette quoted is correct but that the date is erroneous in that the yearset out should be 1945 and not 1946. Learned Counsel for the appellantsays that he is unable to admit or deny the correctness of his statementbut that he can only say that he has made search for a copy of the GazetteNo. 9,380 of March 16, 1946, but that there is no such Gazette in existence.The third Gazette that is referred to is one bearing number 9,530 of March12, 1946, but this Gazette refers to transport of flour and not of wheat.It is therefore obvious, and learned Crown Counsel is obliged to concede,that no offence declared by any of the Gazettes to be a breach of anyRegulation has been committed by the accused.
Learned Crown Counsel, however, invites me on the authority ofKandasamy v. Navaratnarajah1 to send the case back for the charge tobe properly framed and for proceedings to be taken afresh against theaccused. In that case there was an omission to specify the order underwhich the Regulation penalising the act was made and the case wasremitted to the Magistrate’s Court for proceedings to be taken after theconviction had been quashed. But learned Counsel for the appellantrelies upon the later case of Carolis Appu v. A. G. A., Haputale * where incircumstances very similar to the present and dealing in fact with theRegulations relating to transport of grain, this Court refused to remit thecase for further proceedings. This was a case where as in the presentthere was not only no reference to the Gazette which constituted the offencebut on the contrary express reference was made to certain other Gazetteswhich were said to embody the regulations constituting the offence withwhich the accused was charged, and which had in fact no applicationwhatsoever. This later case, therefore, is more apposite to the facts ofthe case before me and following it I would set aside the conviction anddischarge the accused.
Conviction set aside.
• (1944) 45 N. L. R. 546.
•(1945, 46 if. L. R. 262.