038-NLR-NLR-V-56-K.-WIJESINGHE-Excise-Inspector-Appellant-and-A.-DON-MARTIN-Respondent.pdf
158
Wijesinghe t>.' Martin
1954Present: Swan J.
K.WIJESINGHE (Excise Inspector), Appellant, and A. DONMARTIN, Respondent
,S'. (J. 1,074—M. C. Colombo South, 55,620
Charge—Duplicity—Poisons, Opium and Dangerous Drugs Ordinance {Cap. 172).
s. 26—Criminal Procedure Code, 88. 171, 425.
The chargo against the accused was that he did “ s6v, plant or cultivate **hemp plants in breach of section 26 of tho Poisons, Opium and DangerousDrugs Ordinance.
Held, that tho charge was not bad for duplicity. Section 26 of tho Poisons,Opium and Dangerous Drugs Ordinance created one offence, whether it wascommitted by sowing, planting or cultivating.
Held further, that, oven if there was error in the charge, the error wasimmaterial.
•/^.PPEAL from a judgment of the Magistrate’s Court, Colombo South.
II. C. Jayetileke, Crown Counsel, for the complainant appellant.—The failure to mention in the charge the Minister of Health as tho properauthority to issue tho licence is a curable irregularity—Simon Singho v.Thoradeniya1. The facts establish cultivation on the part of the accused—Marambe v. John2.
Boyd Jayasooriya, for the accused respondent.—The charge is bad forduplicity. It alleged that the accused did either “ sow or plant orcultivate five hemp plants ” on a particular day. It alleged thereforethat tho accused committed several offences in the .alternative, not thathe committed one offence in alternative ways. Tho English Court ofCriminal Appeal held in R. v. Molloy3 that such a charge was bad in lawand quashed the conviction. Molloy's case was followed here inPakir Saibo v. Nayar*.
In Sub-Inspector of Police, Dehiowita v. Perera6 Jayewardene A.J.held that a conviction on a charge which was bad for duplicity should bequashed, if it prejudiced the accused in his defence, although in an earlierjudgment in Police Sergeant, Lindula v. Stewart*, he had taken the view'that the defect was curable. Molloy's case had not been cited to HisLordship in either case. In the present case the accused pleaded thathe was unable to defend himself because he did not know what offencehe was charged w ith.
(1954) 55 N. L. R. 451.(1940) 47 N. Jj. R. 526.(1921) 2 K. II. 364.
(1940) 42 A L. R. 151.(1920) 27 N. L. R. 511.(1923) 25 N. L. R. 106.
SWAN J.—Wijeainghe v. Martin
150
For an example of a charge which alleged that the accused committedone offence in alternative ways, see Thomson v. Knights1.
E. H. C. Jayetileke, in reply, referred to section 171 of the CriminalProcedure Code and relied on Police Sergeant, Idndula v. Stewart (supra).
Cur. ado. vult.
Novomber 22, 1954. Swan J.—
This is an appeal by the complainant with the sanction of the Attorney-General from an order of the learned Magistrate of Colombo Southacquitting the accused. The accused was charged in this case that hedid on 13.3.1954 “without a licence from the Minister sow, plant orcultivate five hemp plants {Cannabis Sativa L) on his land called Goraka-gahawatta, in breach of section 26 of the Poisons, Opium and DangerousDrugs Ordinance (Cap. 172) read with section 76 (1) (a) and therebycommitted an offence punishable under section 76 (5) (a) of Chapter 172of the said Ordinance.” He was acquitted after trial on the ground®that the charge was defective in that it referred to the Minister withoutparticularizing which Minister it was. In point of fact it is the Ministerof Health (see Gazette Notification No. 10,407 of 2.6.52 and No. 10,608of 28.10.53) who is the proper authority.
In the course of his order the learned Magistrate said :—“ I accept theevidence of the prosecution witnesses on the facts. I have not theslightest doubt that the accused was seen by the prosecution witnessesdoing certain acts, that he was cultivating the plants—such as heapingthe earth and removing a thorny creeper round the plants. AdvocateMh Perera also raised the question whether the charge was defectiveinasmuch as it states, ‘ sow, plant or cultivate ’. I hold that the chargeis not defective on this ground for, the section is so worded, ‘ No personshall …. sow, plant or cultivate ’ and it would not be necessaryfor the prosecution, in the plaint itself, to take up a definite positionwhether it was sowing, planting or cultivating as in this case. Theevidence led would establish any one of these matters mentioned in thecharge. But, the point raised by Advocate Mr. Perera that the chargewas defective in that the proper authority, that is, the Minister of Healthis not mentioned, is entitled to prevail. It was held in a case reportedat page 451 of 55 N. L. R. that there was an error in the charge in thatcase where the proper authority was mentioned as the Minister of Justiceand not the Minister of Health. The Supreme Court held that the mentionof the wrong person was nothing more than a mere irregularity undersection 425. The powers under section 425 are reserved only for theSupreme Court. I hold therefore that the charge has been defectivein that the proper authority has not been mentioned.”
{1947) 1 K. B. 330.
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SWAN J.—Wijeringhe v. Martin
The case of Simon Singho v. Thoradeniya*1 referred to by the learnedMagistrate was decided by me. There I held that the mention of thewrong Minister was a mere irregularity that did not vitiate the conviction.
I expressly made reference to seotion 426 of the Criminal ProcedureCode because it says inter alia “ no judgment passed by a Court ofcompetent jurisdiction shall be reversed or altered on appeal or revisionon account of any error, omission or irregularity in the ….charge …. unless such error, omission, or irregularity hnRoccasioned a failure of justice”. But section 171 of the same Codeoxpressly states that “ no error in stating either the offence or the parti-culars required to be stated in the charge, and no omission to state theoffence or those particulars shall be regarded at any stage of the case asmaterial, unless the accused was misled by such error or omission ”.
Learned Crown Counsel submits that the learned Magistrate is clearlywrong and that the order of acquittal must be set aside and the accusedconvicted and sentence passed on him. Mr. Jayasooriya who appearedfor the respondent did not seek to justify the order of acquittal for thereasons given by the learned Magistrate. He however maintains thatthe charge is bad for duplicity. Sow, plant or cultivate, he argues,connote three different and distinct operations, each of which constitutesan offence. In this connection he referred me to the case of Palcir Saibov. Nayar2 where Wijeyewardene J. held that the charge was defectivein that it failed to give particulars of the manner in which the allegedoffence was committed and that it was open to objection on the ground ofduplicity. But duplicity is not a fatal defect. It is an irregularity andnot an illegality. As Jayewardene A.J. said in Police Sergeant, LAndulav. Stewart3 “the defect is, however, not fatal to the conviction as it isone of duplicity and not of misjoinder ”. .
The learned Magistrate himself considered whether the charge wasbad for duplicity and came to the conclusion that it was not. I aminclined to agree. The section is so worded that one is forced to theconclusion that it created one offence, whether it was committed by sowing,planting, cultivating, obtaining or having in one’s possession any of theprohibited plants, or collecting or having in one’s possession the seeds,pods, leaves, flowers or any part of such plant. The gravamen of thecharge is that one should have anything to do with the prohibitedplants without the licence of the proper authority. The manner in whichthe law has been transgressed is only incidental.
But the evidence led at the trial was of cultivation and as the accusedcannot conceivably complain of prejudice, I would hold that the errorin the charge, if error there is, is immaterial.
I set aside the order of acquittal and convict the accused. The casewill be remitted to the lower Court for the learned Magistrate to passsentence.
.Acquittal set aside.
1 (J954) 56 N. L. R. 451.* (1940) 42 N. L. R. 151.
» (1923) 26 N. L. R. 16C.