033-NLR-NLR-V-56-D.-R.-M.-PANDITHAKORALEGE-Excise-Inspector-Appellant-and-V.-K.-SELVANAYAGA.pdf
SWAN J.—Pandithakiralege v. Seloanayagam
ua
1954
Present: Swan J.
R. M. PANDIT HAKORALEGE (Excise Inspector), Appellant,and V. K. SELVANAYAGAM, Respondent
S. C. 903—M. C, Point Pedro, 28,267
fn&u>ii>icnt~Pariiculare—Mistake as to date of alleged offence—Effect of error—
. . Cntnin<dProc^ure€!^f^.J71.., ..v > .4.[■
'• The date given in the plaint of ah alleged offence was stated to he “on orabout March 28,1964 ’*. The evidence led at the trial gave the date as March 29,1964.'
. • Held, that a mistaken date in an indictment is not a material error unless thedate iB of the essence of the offence or the accused is prejudiced.
A
'f : ■
PPEAL from a judgment of the Magistrate’s Court, Point Pedro.
M. Kanagasunderam, Crown Counsel, for the Attorney-General.
No appearance for the accused respondent.
Our. adv. vult.
October 28, 1954. Swan J.—
In this case the accused-respondent was charged with possession of apreparation of the hemp plant commonly known as gahja under Section28 read with Section 2 (2) and Section 76 (1) (a) of the Poisons, Opiumand Dangerous Drugs Ordinance, an offenco punishable under Section76 (5) (a) of the said Ordinance..
The date given in the plaint of the alleged offence is stated to bo onor about March 28, 195A The accused-respondent pleaded not guiltyand the case proceeded to trial. After the prosecution had closed itscase it was pointed out that the evidence, disclosed that the stuff wasfound on the 29th March, and the learned Magistrate acquitted thoaccused. From this order of acquittal the complainant appeals with thesanction of the Attorney-General.
The date in the plaint is obviously a mistake. In his evidence givenon 12th May, 1954, the Excise Inspector mentioned the date as 28thMarch, 1954. That evidence was given with the object of obtaining anorder for sending a sample to the Government Analyst for examinationand report. In his evidence on the 23rd June, 1954, at the trial theInspector gave the date as the 29th March. On the same day the ExciseGuard in the course of his evidence gave the date as the 29tli March.
Section 171 of the Criminal Procedure Code provides :— '
“ No error in stating either the offence or the particulars requiredto be stated in the charge and no omission to state the offence or thoseparticulars shall be regarded at any stage of the case as material unlessthe accused was misled by such error or omission. ”
144
SWAN J.—Pandithakoralege V. Selvanayagam
There can be no doubt that the accused was in no way misled by themistake as regards the date in the plaint. In the case of William. EdwardJames 1 it was held that a mistaken date in an indictment, unless thedate is of the essence of the offence or the accused is prejudiced, neednot bo formally amended. In the course of his judgment dismissingtho appoal the Lord Cliiof Justice referred to tho judgment of Atkin J.in tho case of Dossiz where it was held that from time immemorial adato specified in an indictment has never been considered a rrihtorialmatter unless time was of the essence of the offence.
I sot asido the order of the learned Magistrate acquitting and dischargingthe accused. The case will be sent back to the lower court for retrial.Tho learned Magistrate who hoars tho case w'ill note that the Sectionquoted in tho charge is not correct. It should be 26 and not 28.
Acquittal set aside.
'17 Criminal Appeal Reports 116.*87 L. J.K.D. 1024.