011-SLLR-SLLR-1992-2-JAYARATNE-v.-ATTORNEY-GENERAL.pdf
284
Sri Lanka Law Reports
[1992] 2 Sri LR.
JAYARATNE
v.
ATTORNEY-GENERAL
COURT OF APPEALISMAIL, J.
CA 223/81
12TH OCTOBER, 1992.
Criminal Law – Provision of gun – Firearms Ordinance Ss 2(a), 2(b), 22(1),22(3) (a).
During a search of his residence the appellant showed a gun to the Police andclaimed it was a toy gun. The Government Analyst reported that the mechanismof the gun was defective, that a part of it was made of a kitul wood and in itspresent state could not be used to discharge pellets. It was a component of agun within the meaning of section 2(b) of the Firearms Ordinance.
Held:
The charge was that the appellant did possess, without licence, a gun within' thedefinition in section 2(a). The charge not having been amended the convictioncould not stand.
APPEAL from conviction by the Magistrate of Galle.
Eardley Perera, PC. with Mahinda Pinnediya for accused-appellant.
A Marikkar for Attorney-General
Cur. adv. vult.
23rd October, 1992.
ISMAIL, J.
The charge against the accused-appellant was that on or about20.10.79 at No. 11, Bope Road, Gintota, he did possess a gun withinthe meaning of Section 2(a) of the Firearms Ordinance, and that hedid thereby commit an offence punishable under Section 22(3) (a),read with Section 22(1) of the said Ordinance. He was found guiltyafter trial and was sentenced to a term of 4 months rigorousimprisonment suspended for a period of 5 years.
CA
Jayaratne v. Attorney-General (Ismail, J.)
285
On the night of 19.10.79, S.l. Seneviratne with a police partysearched the residence of the appellant on receiving information thatthe appellant possessed a gun without a licence. The appellantshowed the gun which he possessed saying that it was a toy gun andthat it could not be used. The appellant was then taken into custodyand proceedings were instituted against him. On 30.10.79 an orderwas made that the gun be forwarded to the Government Analyst forreport as to whether it was a gun within the meaning of Section 2(a)or 2(b) of the Firearms Ordinance.
The Asst. Government Analyst Mr. Mendis, gave evidence at thetrial having forwarded his report earlier dated 09.11.79. He statedthat the mechanism of this gun was defective, that a part of it wasmade of “kitul” wood and that in its present state it could not be usedto discharge pellets. His view was that it was a component of a gunwithin the meaning of Section 2(b) of the Firearms Ordinance.
'Gun' for the purposes of the Firearms Ordinance is defined toinclude:
(2) "(a) any barrelled weapon of any description from which anyshot, pellet or other missile can be discharged with sufficient force topenetrate not less than eight strawboards, each of three-sixty-fourthof an inch thickness placed one-half of an inch apart, the first suchstrawboard being at a distance of fifty feet from the muzzle of theweapon, the plane of the strawboards being perpendicular to the lineof fire or
(b) any component part of any such weapon …”
It. was the submission of learned President’s Counse) that thelearned Magistrate should not have accepted the interpretation of theAssistant Government Analyst, as the Ordinance does not requireany component of a gun to be licensed, but only a component of agun which satisfies the requirement of section 2(a). Having defined agun as noted above in section 2(A), it proceeds to refer in section2(b) to a component “of any such weapon." There is merit in thissubmission. However, it is not necessary for me to express a findingon this matter as the case for the prosecution was specifically that theappellant did possess, without licence, a gun within the definition in
286
Sri Lanka Law Reports
[1992] 2 Sri LR.
section 2(a). The charge had not been amended even after theevidence of the Assistant Government Analyst. In the circumstancesthe prosecution had failed to prove the charge against the accusedappellant and the conviction cannot therefore stand. The conviction isquashed and the sentence is set aside.
Appeal allowed.