036-NLR-NLR-V-42-BRERETON-v.-RATRANHAMY.pdf
MOSELEY S.P.J.—Brereton v. Ratranhamy.
149
1940Present: Moseley S.PJ.
BRERETON v. RATRANHAMY274—M. C. Ratnapura, 27£75.
Charge under Tea Control Ordinance, No. 12 of 1938 (.Cap. 299)—Offence inrespect of repealed Ordinance No. 11 of 1933—Power of Supreme Courtto alter charge—Absence of Attorney-General’s sanction—Fatal irregu-larity—Criminal Procedure Code, s. 425.
The accused was charged under section 35 (1) (d) of the Tea ControlOrdinance, No. 12 of 1938, in respect of a declaration made underOrdinance No. 11 of 1933 which was repealed by the first-mentionedOrdinance.
The prosecution was sanctioned by the Tea Controller as required byOrdinance No. 12 of '1938, but not by the Attorney-General as requiredby Ordinance No. .11 of 1933. The evidence disclosed an offence undersection 36 (1) (d) of Ordinance No. 11 of 1933, which in respect ofoffences committed under it was kept alive by the proviso to section 42.
Held, that the Supreme Court had power to alter the conviction toone under section 36 (1) (d) of Ordinance No. 11 of 1933, but that theabsence of the Attorney-General’s sanction was not curable undersection 425 of the Criminal Procedure Code and rendered the trial anullity.
^^PPEAL from a conviction by the Magistrate of Ratnapura.
N. E. Weerasooria, K.C. {with him N. Kumarasingham), for accused,appellant.
J.E. M. Obeyesekere, for complainant, respondent.
Cur. adv. vult.
November 19, 1940. Moseley S.P.J.—
The appellant was charged “ that on July 22, 1933, he did furnish tothe Government Agent of the Ratnapura District a declaration on Form B{small holding) in respect of a land’called Kumbalmullawatta at Morahelafor the purpose of registering same as a Tea Small Holding knowing thatthe extent of nine acres declared by him in the said declaration as an area‘ wholly planted with tea ’ was incorrect and that he thereby committedan offence punishable under section 35 {1) (d) of the Tea Control OrdinanceNo. 12 of 1938 ”.
He was convicted and sentenced to pay a fine of Rs. 250.
He has appealed on the following grounds :—
that the declaration made by him was made under the provisionsof Ordinance No. 11 of 1933 and that an offence in respect thereof is notpunishable under Cap. 299 ;
that a prosecution in respect of an offence under Ordinance No. 11of 1933 may not be instituted without the written sanction of theAttorney-General ;
that the charge does not disclose an offence against eitherOrdinance; and
that the evidence does not support the conviction.
150MOSELEY SJP.J.—Brereton v. Ratranhamy.
Counsel for the respondent concedes that there has been an offenceagainst Cap. 299, but contends that the situation is met by the proviso tosection 42 Of Ordinance No. 11 of 1933. That section runs as follows: —
“ This Ordinance shall continue in force for a period of five yearsreckoned from the appointed day :
Provided that the expiration of this Ordinance shall not affect anypenalty, forfeiture, or punishment previously incurred under thisOrdinance or under any rules made under this Ordinance, or affectany legal proceeding or remedy in respect of any such penalty,forfeiture, or punishment, and any such legal proceeding may beinstituted, or continued, or enforced, and such penalty, forfeiture, orpunishment may be imposed as if this Ordinance had not expired. ’’
Counsel, as I have observed, concedes that the charge should have beenlaid as punishable by section 36 (1) (d) of Ordinance No. 11 of 1933, butsays that, since the Magistrate has found that such an offence has beencommitted, it is competent for this Court, in the exercise of its powersunder section 347 (b) (ii.) of the Criminal Procedure Code, to alter thefinding to bring it into conformity with Ordinance No. 11 of. 1933. Hebrought to my notice the case of R. v. Baron Silva et al in which therehad been a conviction for conspiracy. The conviction survived an appealand it was only subsequently that it was discovered that the Ordinancewhich created the offence of conspiracy was not in force at the time ofthe commission of the alleged offence. It was held that the power ofthe Appeal Court to alter a verdict was not confined to cases mentionedin sections 181 and 182 of the Criminal Procedure Code. In that casethe finding, which had been one of conspiracy was altered to one ofabetment which offence the Appeal Court held was supported by theevidence. In my opinion the decision in that case may with proprietybe followed in this case before me.
In regard to the omission to obtain the sanction of the Attorney-General, it is contended, and I think properly, that the object of thisrequirement is to protect private persons from frivolous and vexatiousprosecutions. In Atapattu v. Punchi Banda alias Nilame *, the absenceof sanction was held to be cured inasmuch as no objection to want ofsanction was taken at the trial, and it must therefore be assumed that theprosecution was neither frivolous nor vexatious. In the present case thesanction of the Tea Controller, as provided by section 35 (2) of Cap. 299was obtained. It may therefore be taken that the prosecution was notfrivolous or vexatious. The section of the Criminal Procedure Code,however, by virtue of which it is now sought to cure the omission toobtain the sanction necessary to institute proceedings for an offenceagainst Ordinance No. 11 of 1933 is section 425 which provides that nojudgment of a Court of competent jurisdiction shall be reversed on appealon account, inter alia, of the want of any sanction required by section 147,unless such want has occasioned a failure of justice. I am satisfied thatho failure of justice has been occasioned in this case by the omission toobtain the proper sanction, but the case is not one of those embraced by'4 Timet of Ceylon L. R. 3.*13 C. L. W. 73.
WUEYEWARDENE J.—Pakir Saibo v. Nayar.
151
section 147. No other provision of law has been brought to my noticeunder which this particular omission might be cured. It seems to methat in the absence of the required sanction the trial is a nullity.
I therefore allow the appeal. The conviction and sentence are setaside. The fine, if paid, must be refunded.
■Set aside.