Hodson v. Canim.
Present: Keuneman J.
HODSON v. CASSIM.
395—P. C. Kandy, 58,439.
Motor Car Ordinance—Possessing a car 'without a licence—Presumption ofpossession—Rebuttal of presumption—Ordinance No. 20 of 1927, ss. 20,.24, and SO.
The accused was charged with possessing or using a car for which alicence was not in force. The accused admitted the ownership of the carbut stated that, although he was the registered owner, he had not used itand that it had been in the garage since he bought it. He had not givennotice of non-user nor had the registration been cancelled.
Held, that the accused was guilty of possessing a car without a licence.Mere production of, the register and proof that the accused’s nameappears there as the registered owner is not, sufficient to prove that theaccused possessed or used the car.
1 J. L. R. Allahabad, Vol. 28, p. 207, reported at p. 138 of Val. 3, Allahabad in theReprint of Indian High Court Reports.
KEUNEMAN. J.—Hodson v. Cassim.
The dictum of Drieberg J. in G. A., Central Province v. Beeman(33 N. L. R. 343) that the presiunption of possession can only berebutted by ^establishing compliance -with section 22 or 24 of the MotorCar Ordinance doubted.
G. A., Western Province v. Bilinda (3 Cr. A. R. 38) referred to.
PPEAL by the complainant with the sanction of the Solicitor^General.
Cur. adv. vult.
Jansze, C.C., for complainant, appellant.
No appearance for accused, respondent.
August 30, 1938. Keuneman J.—
This is an appeal by the complainant with the sanction of the Solicitor-General. The accused-respondent was charged with possessing or usingon or about January 1, 1938, motor car D 1,393 for which a motor carlicence was not in force, in contravention of section 30 (1) of the MotorCar Ordinance, No. 20 of 1927, an offence punishable under section 84 ofthe Ordinance. The learned Police Magistrate after trial discharged theaccused.
The evidence in the case is very short. The licensing clerk of theKandy Kachcheri gave evidence that the accused was the registeredowner of the car D 1,393 from December 17, 1937, and had obtained nolicense for 1938, and that no notice of non-user was given and registrationhad not been cancelled. This clerk had no knowledge of possession oruser.
The accused also gave evidence, and stated that from the time hebought the car, the car had been in the garage, and it had not been usedat all on the road. In cross-examination the accused stated that he wasthe registered owner of the car, that the car was registered in his name,that he had not sold it to anyone but that he had not used it.
I have been referred to a number of authorities. In G. A., CentralProvince v. Beeman', Drieberg J. after considering sections 18, 22, and 24and Form 2 in the Third Schedule of the Ordinance held that “ once aperson has been registered as owner of a car on his declaration that he isentitled to the possession of it, he must be regarded as the person inpossession of it, unless there has been a transfer of possession in themanner provided for in the Ordinance, or unless by the cancellation ofthe registration it ceases to be a car which can be the subject of possessionfor the purposes of the Ordinance ”.
This decision was followed by McDonell C.J. in De Silva v. Rosen", and‘ by Soertsz A.J. in Misso v. De Zoysa 3.
In Government Agent, Western Province v. Bilinda *, decided by Garvin J.there was evidence that though the accused in the case had bought a carat a garage, and though he was registered as the owner of it, he nevertook possession of it at all. In that case a motor licensing clerk produced
> 33 AT. L. R. 343.2 4 C. L. Weekly 81.
2 C. L. Weekly 98.* 3 0. A. R. 38.
KEUNEMAN J.—Hodson v. Cassim.
a register, which showed that the car in question appeared in the registerand that the name of the owner of the car set out in the register was t.h»name of the accused. Apart from those entries in the register there wasnothing to show that the accused had possessed or used the car. Theaccused was acquitted. Garvin J. held that there was no evidence ofpossession.
In Chairman, Sanitary Board, Jaffna v. Sebamali', decided by Dalton J.the only evidence was that of a licensing clerk who produced the certificateof registration showing that the bus in question was registered in the nameof the accused woman from December 9, 1935, and that the bus had notbeen licensed for 1936. The accused in that case gave evidence on herown behalf and stated that she had' never used or possessed the bus inquestion, and did not know anything about it. The accused in this casealso was acquitted.
These cases are not easy to reconcile, but I think it is possible to do so.I agree with Justices Garvin and Dalton that the mere production of theregister, and proof that the accused’s name appears there as the registeredowner is not sufficient to prove that the accused possessed or used thevehicle in question. But where it has been proved that application hasbeen made for the registration of the vehicle in the name of the accused bythe accused himself or at his instance, I think different considerationsapply, and that it is possible in such circumstances to presume primafacie that the accused possessed the vehicle thereafter. The signing ofthe declaration in accordance with Form 2 of the Third Schedule to theeffect that the applicant “ is entitled to possess ” the vehicle has beenemphasized by Drieberg J. himself. With deference, however, I do notthink that the presumption of possession can only be displaced by acompliance with sections 22 or 24. Certainly the declaration is only tothe effect that the applicant is “ entitled to possess ” the vehicle, and notthat the applicant is in actual possession of the vehicle. I think thepresumption of possession may be rebutted by the accused in any wayhe wishes, for example by such facts as were established by the accusedin the case of The Government Agent, Western Province v. Btlinda (supra).
It now remains for me to apply these findings of law to the facts of thepresent case. Had the only evidence in this case been the evidence forthe prosecution, I think I should not have interfered with the order ofdischarge. The witness for the prosecution did not produce the register,and made no attempt to produce the application for registration. Thecase however did not rest there, for the accused himself gave evidence.He stated that he was the registered owner and that the car was registeredin his name. He admitted that he had bought the car and had not sold it,but said that since he bought the car, the car had been in the garage. Itis not clear on this evidence whether the car was in the accused’s garageor in some other garage and if in another garage, under what circumstancesit remained there. On this evidence, I think it may be presumed that theaccused was in possession of the car, and that the presumption of posses-sion had not been rebutted.
* 16 C. L. Rec. a.
Amarasuriya v. Ramanathan Chettiar.
I set aside the order of discharge and convipt the accused under section30 (1) of possessing the car for which a motor car licence was not in force.In the circumstances of the case I think a fine of Rs. 35, viz., the amountof the licence fee due for 1938, under section 30 (3) is sufficient, and 1accordingly impose that sentence.
. Set aside.
HODSON v. CASSIM