089-NLR-NLR-V-64-B.-A.-PIYADASA-PERERA-Appellant-and-TISSERA-P.S.3968-Respondent.pdf
H. N. G. FERNANDO, J.—Piyadasa Perera v. Tissera
501
Present: H. N. G. Fernando, J.
A. PIYADASA PERERA, Appellant, and TISSERA (P. S. 3968),
Respondent
S.C.682—M. C. Colombo, 9621/B
Lorry—User of it without a stage carriage permit—Culpability—Motor Traffic Act, .a. 46 {1).
Section 40 (1) of the Motor Traffic Act which prohibits the user of an omnibuson a highway except under the authority of a stage carriage permit does notapply to the user of a motor lorry without a stage carriage permit.
{.Appeal from a judgment of the Magistrate’s Court, Colombo.
M:M. Kumarahvlasingham, for the Accused-Appellant.
IC. Abhanayake, Crown Counsel, for the Attorney-General.
1 :
October 1, 1962. H. N. G. Fernando, J.—
The accused has been convicted on a oharge that “ being the driverof motor vehicle to wit hiring motor coach No. 33 Sri 3185 ” he diddrive the same on a public highway when there was no stage carriagepermit granted by the Commissioner in respect of the vehicle in breachof section 46 (1) of the Motor Traffic Act.
There was evidence which the Magistrate appears to have acceptedto the effect that a number of persons were being carried on the vehicleon the occasion in question, and it is also apparent that the vehiclewas not licensed either as a motor coach or as an omnibus. Primafacie, therefore, it was in all probability being used in contravention of& those provisions of the Act which require a licence specifically authorizinga carriage of passengers on motor vehicles.
But at the end of its case the prosecution produced, marked PI, acertified extract of the registration of this particular vehicle. It isclear from that extract, and indeed the matter was not contested, that
1 (1962) 64 N. L. R. 141.
502
Weeraaingham v. Kasithamby
this vehicle has been registered as a motor lorry. That being so, andin the absence of any evidence to the contrary, the vehicle is not a motorcoach within the meaning of the Act. Since it was not a motor coach,no stage carriage permit would have been issued authorizing its usefor the carriage of passengers as an omnibus.
The charge against the accused was laid under section 46 (1) of theAct which provides that an omnibus cannot be used on a highway withouta stage carriage permit. This vehicle not having been shown to be anomnibus but the vehicle having been shown prima facie to be a motorlorry, section 46 of the Act does not apply to its user.
It may well be that some offence has been committed by using a lorryfor the carriage of passengers, but that was not the charge brought inthis case, and there is nothing in the relevant provisions of the CriminalProcedure Code which will enable me now to substitute a convictionfor some different offence. Indeed it would be unreasonable to do soin any event, since the defence obviously desisted from leading evidencebecause they relied on the question of law which had to succeed.
The conviction and sentence are set aside.
Appeal allowed.