098-NLR-NLR-V-44-JAYAKODI-APPELLANT-and-PAUL-SILVA-et-al.-Respondents.pdf
Jayakodi and Paul Silva.
379
1943
Present: Soertsz S.P.J.
JAYAKODI, Appellant, and PAUL SILVA et al., Respondents.
159—M. C. Negombo, 36,586.
Petrol (Control of Supplies) Ordinance, No. 52 of 1939, s. 11 (b) — Judicial-notice of proclamation—Meaning of expression “vendor"-—Liabilityof owner of depot.
A Court is bound to take judicial notice of the date on which .anOrdinance has been brought into operation.
The expression “ vendor ” in section 11 (b) includes not- only the ven-dor who is for the time being in charge of a retail depot, but also theperson to whom petrol is sold or delivered by a supplier/ although theoffence, was committed in the absence of that person,
380SOERTSZ' S.P.J.—Jayakodi and Paul Silva. *
-A.PPEAL, from a conviction by the Magistrate of Negombo.
E. Chitty, C.C-, for the complainant, appellant.
V. Per era, K.C.. (with him E. F. N. Gratiaen and H. W. Jayewardene),for the accused, respondent.
Cur. adv. vuIt.
April 21, 1943. Soertsz S.P.J.—
The Attorney-General appeals against the order made in this caseacquitting the two accused of a charge that alleged that they “ did withinthe jurisdiction of this court at Negombo between September 30, 1942,and November 10, 1942, being the vendors in charge of the retail depotNo. 2 . . . . fail to make entries in respect of sales and delivery ofpetrol by them in Register in the form set out in the Schedule to Ordi-nance No. 52 of 1939 in contravention of section 11 (b)…. and
had thereby committed an offence punishable under section 16 (1) ofOrdinance No. 52 of 1939 ”,
The ground upon which the Magistrate based his order of acquittalwas that the prosecution had not proved that the Governor had fixed adate for the Ordinance under which the charge was laid to come intooperation as was contemplated by section 4. In reaching the conclusionthat such proof was essential the Magistrate purported to follow thedecision given by this Court in the case of de Zoysa v. Cumarosuriar
On appeal Counsel for the accused-respondents supported this viewof the Magistrate and also contended that the order of acquittal was. right in regard to both the accused for the reason that the charge framedagainst them was bad for multiplicity and that as far as the first accusedwas concerned for the additional reason that he could not be said to besuch a vendor as is contemplated by section 11 (b) for, admittedly, hewas not present at any of the times at which the petrol, in respect ofwhich the defaults were alleged, was sold and delivered.
. To deal first with the reason the Magistrate gave for acquitting theaccused, I fail to see that the decision in the case cited by the Magistratehas any application to the facts of this case. In that case, the accusedwas acquitted on the ground that although the Minister had proclaimedby notification in the Gazette that a partial blackout should be observedin the district concerned, there was no proof that the “ competentauthority ” for that area had notified the public of the Minister’s decisionas was required by section 3 of Part 11 of the Lighting Restriction Orderof 1940. In the case before me now, the charge is laid under an Ordinance■enacted by the Governor as an Ordinance to come into operation on theGovernor appointing a date for that purpose by proclamation in theGazette. The- moment that proclamation appeared, the Ordinancebecame law and the charge here is laid under sections 11 (b) and 16- ofthat law.
In virtue of section 57 of the Evidence Ordinance, the Court was boundto take judicial notice of that law as part of our statute law. Similarly,
a 23 c. L. w. 114.
SOERTSZ S.P.J.—Jayakodi and Paul Silva.381
the Court is bound to take notice of “ rules having the force of law ”but in such cases it was held by a Divisional Bench in Sivasampu v.Juwan Appu' that there must at least be some reference in the chargeto the relevant Gazette for, in the absence of such a reference, there wouldnot be compliance with section 167 (4) of the Criminal Procedure Code%vhich requires that the charge shall state “ the law and section underwhich the offence said to have been committed is punishable In thedays in which we had no compilation of Subsidiary Legislation, a referenceto the Gazette was the only way in which the accused could be informedof the law under which he is charged. To-day, in most cases, that canbe done by reference to the chapter and section of the different volumesof Subsidiary Legislation.
For these reasons, I do not agree with the view taken by themagistrate.
In regard to the second point, I do not consider that this is a case inwhich the accused have been charged in respect of each and every failureto make or cause to be made an entry as required by the Ordinanceduring the period covered by the terminal dates mentioned in the charge,but rather a case in which the substantial charge is that the accusedfailed to keep a Register in the manner required by the Ordinance. Thedates are stated in the charge to give the accused sufficient particularsas required by section 168 of the Criminal Procedure Code.
So far as the third point is concerned, the first accused is clearly withinthe definition of “ vendor ” as stated in the Ordinance and I cannotsee my way, in view of that definition, to hold as I was asked to do, thatthe person contemplated by section 11- (b) is the actual vendor or theperson “ for the time being in charge of any retail depot ”. The Statuteseems to me to create an absolute liability and to involve in it “ theperson to whom petrol is sold or delivered by a supplier ” (the firstaccused is that person in this instance), as well as “ the person for thetime being in charge of any retail depot ” (the second accused isthat person in this instance). If Counsel’s contention represents thecorrect interpretation of section 11 (b) it is difficult to understand why theLegislature did not say “ every person for the time being in charge ofa retail depot ” instead of saying “ every vendor ”. I was addressedstrongly in regard to the mitigating facts present so far as the first accusedis concerned' in order to drive home to me the hardship of his position ifhe is to be held criminally liable for something done in his absence andwithout his knowledge. But that is a matter for the Legislature or for thetribunal dealing with the case when it is considering the sentence.
I set aside the order of acquittal and enter conviction under the sectionsreferred to and send the case back to the magistrate to pass such sentenceas he thinks fit.
I
Order set aside. 1
1 33 X. L. R. 360.