029-NLR-NLR-V-58-I.-P.-JOHN-Appellant-and-POLICE-SERGEANT-GALEWELA-Respondent.pdf
Present: Gunasekara, J.3956
P. JOHN, Appellant, and POLICE SERGEANT,GALEWELA, RespondentS. C. 396—M. C. Dambulla, 7,270
Lorry—Use oj it outside area of operation specified in licence—Elements of offence
Motor Traffic Act, Xo. 14 of 1051, ss. SO (3), ISC.
When a licence is issued to use within n specified area a lorry that will usuallybo kept at a place outside that area, driving the lorry unladen between theplace where it is usually kept and the area of operation, for the purposes ofits authorised use in that area, is not an ofToncc within the meaning of section186 of the Motor Traffic .Act.
1 [1055) 57 X. L. R. 17.
-^^-PPEAXi from a judgment of the Magistrate’s Court, Dambulla.G. JD. S. Siriiuardene, for- the accused-appellant.
V. S. A. Pullenaycgum, Crown Counsel, for the Attorney-General.
Cur. adv. vulf.
August 27, 1956- Gunasexara, J.—
; This is an appeal by the driver of a lorry against a conviction undersection ISO of the Motor Traffic Act, No. 14 of 1951, for using the lorryon a highway outside the area of operation specified in the revenue licence,which was the Anuradhapura and Polonnaruwa districts. The evidenceagainst him was that a police officer found the lorry being driven byhim at Makulugaswewa, a place outside this area.
The licence states that the lorry “ will usuallj' be kept ” at ffalpe,Mirigama, which is outside the Anuradhapura and Polonnaruwa districts.The place where the lorry was found lies between these districts andMirigama, and the lorry was empty at the time. It is contended forthe appellant that in view of these circumstances the jwosecution has-failed to prove that it was being “ used ” within the meaning of section186.
At the time of the alleged offence the owner of the lorry held a privatecarrier’s permit, granted by the Commissioner of Motor Traffic underPart V of the Act, which authorized him to use the lorry in the areaof operation for the carriage of goods in connection with Ins businessas a “ contractor and sipplier of building materials and cadjans ”. Itdescribed his “ principal place of business ” as Halpe, Mirigama, andthe “ area of operation ” as the Anuradhapura and Polonnaruwa districts.Thus, the carrier’s permit, read in the light of the revenue licence,purported to authorize the use of the lorry for the carriage of goods inthe area of operation specified in the permit, although the lorry wouldusually be kept at Mirigama, outside that area.
The discretion to issue carrier’s permits that is vested by the Actin the Commissioner is not fettered by any requirement that a lorryspecified in a permit may not be one that will usually be kept at a place-outside the area of operation. Indeed, the Act contemplates a discretionin the Commissioner to include in a permit authority even to canygoods outside that area ; for section S6 (3) requires an applicant for apermit to specify “ the place or places, if any, outside the proposedarea of operation between or from or to which it is proposed to carry-goods ”.
A permit to use within a specified area a lorry that will usually bekept at a place outside it must be taken to authorize the driving of thelorry, unladen, between that place and. the area of operation for thepurposes of its authorized use in the area of operation ; for wheneveranything is authorized and it is found impossible to do that thing unless-
something else not authorized in express terms be also done, then that,something else will be supplied by necessary intendment (Fenton v.Hampton1). It follows that section 1S6 must bo so construed as not to-apply to a lorry to which such a permit relates, when the lorry is dr ivenunladen between the place where it is usually kept and the area ofoperation, for the purposes of its authorized use in that area. Thereis nothing in the evidence in this case to exclude the possibility that-when the lorry in question was found at Makulugaswewa it was being*driven in accordance with the authority granted bj' the permit. Theappeal must therefore be allowed.
Another fatal defect in the case for the prosecution is that there isno evidence that the place where the lorry is alleged to have been used’was a highway. I do not base my decision on this ground, however,because the point was not argued at the hearing of the appeal.
The conviction of the appellant and the sentence passed on him are–set aside and he is acquitted.
Appeal allowed.