WIJkYEWABDBNE J.—Kandasamy and Navaratnarajah
Present: Wijeyewardene J.KANDASAMY, Appellant, and NAVARATNARAJAHRespondent.
107—M. C. Chavakachcheri, 31,475.
Defence (Miscellaneous)Regulations—Attempt to commit a breech of a regula-tion—Regulations 52(1)and 54(1)—Controlled Articles(Chillies and
Onions) Order—Regulation &—Notice to accused of the Order underwhich he is charged.
It is an offence for a person to attempt to commit an act in contra-vention of an Order under the Defence Regulations.,
Where the accused is charged with an attempt to transport chilliesand ehillie -powder outsidetheJaffnaPeninsula withoutthe authority
of a permit issued by the Civil Defence Commissioner in contraventionof Regulation 6 of the Controlled Articles (Chillies and Onions)Order,
Held, that the prosecutionwasboundto provethat thechillies, which
the accused was attempting to transport were chillies of the kinddescribed in the Order.
Failure to state in the summons the Order for breach of which thdaccused is charged, where the charge is read out from the summons,is a fatal irregularity.
A PPEAJL from a conviction by the Magistrate of Chavakacheheri.
G. Suntheralingam for accused, appellant.
&f. F. Spencer, C.C., for the Crown, respondent.
October 13, 1944. Wijeyewahdekf, -J.—
The accused appeared in Court on summons and the Magistrate readto the accused under section 187 (2 and 3) of the Criminal ProcedureCode the statement of the particulars of the offence contained in the
> 15 C. A. R. 110.3 44 N. L. R. 254.
* 4 C. A. R. 228.* 41 N. L. R. 505.
Gur. adv. vult.
WIJEYEWARDENE J.—Kandasamy and Navaiatnarkjah.
summons. That statement was to the effect that the accused. did onJanuary 24, 1944, at Elephant Pass …. attempt to transportin loiry • ….2 bags of dried chillies and 3 bags of ehilhe powder
outside the Jaffna Peninsula without the authority of a permit validfor the time being issued by or on behalf of the Civil Defence Com-missioner in contravention of Regulation 6 of the Controlled Articles(Chillies and Onions) Order, 1943, made by the Governor under the DefenceRegulation 43d of the Defence (Miscellaneous) Regulations and publishedin Government Gazette No. 9,105 of April 2, 1943, and thereby committedan offence punishable under Regulation 54 (1) read with Regulations52 (1) and 52 (3) (a) of the Defence (Miscellaneous) Regulations ",
The accused was convicted after trial and sentenced to pay a fine ofRs. 300.
'Mr. Advocate Suntheralingam urged the following points against theconviction: —
that Regulation 54 (1) did not make it an offence for a person toattempt to commit an act in contravention of an Order madeunder any defence regulation;
(ii) tbft' there was no proof that the chillies in question were “ chillieswhether imported or grown in the Peninsula ”as set out in paragraph 5 of the Controlled Articles (Chilliesand Onions) Order, 1943:
that the Controlled Articles (Chillies and Onions) Order, 1943,did not require a permit from the Civil Defence Commissionerfor the transportation of chillie powder from any place in theJaffna Peninsula to a place outside the Peninsula.
In support of his first argument, Mr. Suntheralingam referred toRegulation 54 (1) which reads—
“ Any person who attempts to commit …. any offenceagainst any defence regulation shall be deemed to be guilty of anoffence against that regulation
and contended that the Regulation omitted to provide against an attemptto commit a breach of an Order. This argument however, ignoresRegulation 52 (1) which says—
“ If any person contravenes … any Order:
madeunder any defence regulation, he shall be guilty of an
offence against that regulation ”.
Regulation 52 (1) defines, in fact, the words “ any offence against thatregulation occuring in Regulation 54 (1) as including an act in contravention of an Order made under a defence regulation. I hold, therefore,a gains* the accused on the first point.
Paragraph 5 of the Order mentioned in the summons reads—-
" Except under the authority of a permit granted by the CivilDefence Commissioner, no person shall transport from any place in thePeninsula to any place outside the Peninsula, whether by land or sea,any chillies or onions whether imported or grown in the Peninsula,”
I think that paragraph refers only to two kinds of chillies, namely—(1)chillies imported and (2) chillies grown in the Peninsula. The ** chillies
Fernando and Sergeant Samatk.
imported ” must necessarily mean chillies imported to the Island fromsome place across the seas. The paragraph does not, therefore, refer tochillies grown in some part of the Island outside the Peninsula and takento the Peninsula and later transported to a place outside the Peninsula.
It was therefore necessary for the prosecution to prove in this casethat the chillies which the accused was attempting to transport werechillies of the kind described in the Order. No evidence whatever wasled on this point and, in fact, the chillies were not produced in Court.
I hold that the conviction in respect of the chillies is bad.
The Controlled Articles (Chillies and Onions) Order, 1943, mentionedin the- summons was published in the Gazette of April 2, 1943- Olearly,the provisions of that Order do not apply to ehillie powder. A laterOrder called the Controlled Articles (Chillie Powder) Order, 1943, publishedin the Gazette of May, 4, 1943, provided that paragraph 2 and paragraphs4 to 9 of the earlier Order should apply to “ chillie powder in like manneras they apply to chillies grown in the Peninsula ”. The summons does notrefer to the later Order. Mr. Suntheralingam contends that the accused'(t'as prejudiced by the failure to mention the later Order in the summons.I am unable to say that the contention is without merit.
I quash the conviction and Send the proceediugs back for a trial of theaccused on a properly framed charge in respect of the alleged attemptto transport chillie powder.
KANDASAMY, Appellant, and NAVARTNARAJAH, Respondent