E. H. T, Gunasekara, C. C., as amicus curiae.
Cur adv. vult.
July 22, 1938. Maartensz S.P.J.—
The accused appellant was convicted on the following charge, that hedid on February 5, 1938, being the driver of lorry No. X 9413 carry twopassengers inside the lorry being neither the owner nor hirer of thegoods carried therein or the servant or agent of the owner or hirer inbreach of section 62 (3) of Ordinance No. 20 of 1927—an offence punish-able under section 84 of the said Ordinance.
MAARTENSZ S.P.J.—Joseph v. Sugatadasa.S3
There were three passengers in the lorry besides the driver and the-cleaner, one of whom was the owner of the lorry. The prosecution ledno evidence as to who the other passengers were, nor did the accused.
The question for decision in this appeal is whether the burden of provingthat the other two passengers did not belong to the category of personswho could be carried in a lorry was on the prosecution or on the accused.
In support of the appellant’s contention that the burden was on theprosecution, I was referred to the decision of the Divisional Court in thecase of Nair v. Saundias In that case “ the owner of a motor car,which was licensed for private use only, was charged under section 80
(b) with permitting the car to ply for hire, the owner not being presentat the time ”, and it was held “ that the burden was on the prosecutionto prove that the owner did consent to the commission of the offence orthat the offence was due to an act or omission on his part or that he didnot take all reasonable precautions to prevent the offence It was alsoheld that “ section 80 (3) (b) does not cast upon the accused the burdenof proving an exception within the meaning of section 105 of the EvidenceOrdinance
Section 80 enacts as follows: —
80.(1) If any motor car is used^which does not comply with or
contravenes any provision of this Ordinance or of any regulation, or ofany order lawfully made under this Ordinance or any regulation; or
If any motor car is used in such a state or condition or in such amanner as to to contravene any such provision; or
If anything is done or omitted in connection with a motor car incontravention of any such provision; then, unless otherwise expresslyprovided by this Ordinance,—
The driver of the motor car at the time of the offence shall be
guilty of an offence unless the offence was not due to any act,omission, neglect, Or default on his part; and
The owner of the motor car shall also be guilty of an offence if
present at the time of the offence, or, if absent, unless theoffence was committed without his consent and was not dueto any act or omission on his part, and he had had taken allreasonable precautions to prevent the offence.
Abrahams C.J., pointed out that there is a differentiation between theresponsibility of an owner who is-present when an offence is committedand an owner who is absent and stated that when a charge is made againstan owner who is absent the charge must allege that the owner consentedto the commission of the offence or that it was due to an act or omissionon the part of the owner or that he did not take all reasonable precautionsto prevent the said offence, as the case may be. He accordingly held thatthe excusatory circumstances were essential elements of the offence andnot exceptions to which the rule laid down in section 105 of the EvidenceOrdinance applied.
I respectfuly agree; but I do not think that decision is applicable to theoffence defined by section 62 (3) of the Motor Car Ordinance. I agreewith the learned Magistrate that the section contains a total prohibition
1 37 N. L. R. 430.
Petris v. Inhabitants of V.C., Palutua Peruwa.
of the carrying of any person ip a lorry and then makes an exception infavour of the owner, &c., and that it is for the accused to prove that thepassengers in the lorry were persons to whom the exception applied.
The decision applicable to this case is the case of The Mudaliyar, PitigalKorale North v. Kiri Banda', where it was held that in a prosecutionunder section 21 of the Forest Ordinance, 1907, which prohibits theclearing, &c., of any forest not included in a reserved or village forest, theburden of proving that the forest is not included in a reserved or villageforest lies on the accused.
It was next argued that the accused should have been charged for acontravention of the conditions of his licence under section 31 of theMotor Car Ordinance, and that in such a charge the burden of proving thatthe accused contravened the terms of his licence lies on the prosecution.
The licence authorizes the carriage of goods and persons being theservant or agent of the owner or hirer. In my judgment if the accusedhad been charged with carrying persons in his lorry in contravention of theterms of his licence, the burden of proving that they were persons he wasentitled to carry would be on him.
Moreover, I think that the prosecution is entitled to select the sectionunder which to prosecute if the accused appears to have committed abreach.of more than one section.
I dismiss the appeal.
Appeal dismissed.