138-NLR-NLR-V-56-D.-F.-SENARATNE-Appellant-and-K.-SIMON-APPU-Respondent.pdf
fifiO
VUI-LE J.—.Fernando v. MiUy Nona
1953Present: Swan J.F. SENARATNE, Appellant, and K. SIMON APPU,RespondentS. C. 1,200—M. G. Matara, 28,847
.Motor Traffic Act No. 14 of 1951—Sections 38, 45 (1), 216, 226—Charge of unauthorisedplying for hire—Driver accused—Eight of Owner of car to withhold productionof revenue licence—Evidence Ordinance, e. 130 (/).
Wliero the driver of a private motor car is prosecuted for carrying passengersfor hire in contravention of the conditions of the revenue) licence issued in respect
(1924) 6 G. L. Bee. 17.
8WAN J.—Sanarutne v. Simon Appu651
of the cor, the registered owner of the ear is not entitled, when he is summonedto produce tho revenue licence, to refuse to produce the licence on the groundtliat it would tend to incriminate him. If the owner refuses to liaud over thedocument to Court, secondary evidence of the contents of the document wouldlie admissiM”.
from u judgment pf the Magistrate’s Court, Matara.
D. Jan*ze, Crown Counsel, with if. .S'. Wanasundem, Crown Counsel,fur the complainant appellant.
,S'. Saramnamutlu, with V. K. Pakusuiuhrani, for the accused respon-dent.
Cur. ado. vult.
March II, 1952. Swan J.—
In this case the accused respondent was charged with, being the driverof a private motor ear No. CN 2698, having carried two persons for hirein contravention of the conditions of the revenue licence for the timelioing in tho said vehicle in breach of Section 45 (l) reatl with Section216 of tho Motor Traffic Act No. 14 of 1951, and that ho theroby committedan offence punishable under Section 226 of tho said Act.
The accused pleaded not guilty and the case went to trial. One oftho witnesses for tho prosecution was Newton Devanarayana, the regis-tered o» ncr of tho Baid car. When he was called into tho witness boxtie admitted to the Magistrate that he had been summoned to producetho revenue licence for the year 1952, issued in respect of the said car, andthat he had brought it with him to Court but was not prepared to pro-duce it as it would tend to criminate him as the owner of the car. ThoIcaruod Magistrate taking the view that the production of tho licencewould tend to criminate the witness did not compel tho production oflilt; document.
I fail to sec how tho production of this document could tend to criminatetho witness. Undoubtedly the owner of a private car would be guiltyof an offence under Section 45 (1) if lie contravened the conditions laid• loan in the revenue licenco by permitting the car to bo plied for biro,but the essence of tho offence as against him would bo, if ho was notpresent at the lime, that tho act was done with his knowledge ami con-sent or an|uiescence or connivance, fn my opinion tho production ofthe licence in litis case could not in any wuv tend to criminate the witnessif he. was charged with an offence under the Motor Traffic Act.
Section :}x provides that the revenue licence shall lie carried on themotor vehicle and made available for inspection. The proviso to theSection nlntc; dial it shall be removed from the vehicle and producedwhen rcipuitd b a Court. I hold tliat the eitnijt,., could nut liana
SWAN J.—Senaratne V. Simon Appu
B 52
claimed exemption under Section 130 (1) of the Evidence Ordinance andthat the learned Magistrate should have leaked him to hand over thedocument to Court. If he refused to do so secondary evidence of thecontents of the document would have been admissible. In point of factthere is such evidence on record and that the car in question was liconscdto carry passengers other than for fee or reward has boon established.
I set aside the order of acquittal and remit the case for trial in duocourse. As the learned Magistrate has taken a very strong view ontho facts against the accused I think the new trial should bo boforo anotherMagistrate.
Acqvillal set aside.