067-NLR-NLR-V-66-L.-W.-S.-NANDASENA-Appellant-and-INSPECTOR-OF-POLICE-RAGALA-Respondent.pdf
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SANSONI, J.‘—Nandasena v.Inspector of Police, Ragala
1961. .Present: Sansoni, J.
W. S. NANDASENA, Appellant, and INSPECTOR OF POLICE,
RAGALA, Respondent
8. C. 751160—M. C. Nuwara Eliya, 17,137
Criminal procedure—Charge under wrong Section—Effect of error when it has notoccasioned a failure of justice—Criminal Procedure Code, s. 425.
Thoroughfares Ordinance (Cap. 148)—Sections 68 (8), 71 (11), 73—Encroachment onthoroughfare by making a building—Meaning of “ building, ”—Exposing goodsor wares by means of temporary supports or otherwise—Meaning of words“ or otherwise”.
In a prosecution for an offence under Section 68 (8) of the ThoroughfaresOrdinance the charge referred to Section 69 (8) and not to Section 68 (8).
Held, that the error in the charge did not occasion a failure of justice and wascurable under Section 425 of the Criminal Procedure Code.
Where a cart was converted into a boutique encroaching on a thorough-fare—
H Id, that the structure was a building within the meaning of Section 71 (11)of the Thoroughfares Ordinance.^
In a prosecution under Section 68 (8) of the Thoroughfares Ordinancefor exposing goods or wares over a public road by means of temporarysupports or otherwise—
Held, that the words “ or otherwise ” in the Section meant in any otherway ”, for there is no limited genus which would control or restrict themeaning of the phrase.
Appeal from a judgment of the Magistrate’s Court, Nuwara Eliya.
J.C. Thurairatnam, for Accused-Appellant.
M.Hussain, Crown Counsel, for Attorney-General.
Cur. adv. vult.
February 1, 1961. Sansoni, J.—
The accused-appellant was charged from a summons with two offencesunder the Thoroughfares Ordinance (Cap. 148). The first offence allegedwas that he encroached on a thoroughfare by making, or causing to bemade, a building, i.e., a boutique, on the P. W. D. road, High ForestDivision 3, Kandapola, and thereby committed an offence punishableunder section 71 (11) of the Ordinance. The second offence was that he,by means of temporary supports or otherwise, exposed goods or waresover the public road and thereby committed an offence punishable undersection 69 (8) of the Ordinance.
SANSONT, J.—Nandasena v. Inspector of Police, Ragala
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There is an obvious error in respect of the section charged, for the•section should be section 68 (8) and not 69 (8), but that error is onewhich I am satisfied, has not occasioned a failure of justice. Applyingsection 425 of the Criminal Procedure Code I hold that the accused is not•entitled to claim an acquittal on that account.
The facts, as found by the learned Magistrate, were that the accused-was occupying and carrying on the business of selling goods in a buildingwhich the prosecution has called a boutique, but which the defence•described as a cart. The dimensions of this structure were 4' 10" inwidth, and between 5 and 6 ft. in length. It had walls made with planks,-and a zinc roof. Underneath it were four wheels and two axles, but atthe time in question the wheels had sunk to such an extent that the floorwas resting on the ground. According to the prosecution witnesses thisstructure had never been shifted from its original position, so that it waslying there, to all intents and purposes, permanently. It occupied morethan half the sandy verge adjoining the tarred surface, the latter beingonly 10' 6" in width.
The word ‘ thoroughfare ’ in the interpretation section 73 is defined-as meaning “ any public road, canal or river ”, and the word “ road ”, as•defined in that section, includes “(b) all-land adjoining any road whichhas been reserved for its protection or benefit ”, and “ (d) all wasteland which, not being private property, lies within a distar ce of S3 feet•of the centre of public carriageways and cartways, and 10 feet of the•centre of pub He pathways, the burden of proving that such waste land isprivate property lying on the person asserting the same ”. There canbe no question that the accused encroached on the thoroughfare with thisstructure, which was undoubtedly put there by him, but it has beenurged that since the accused had obtained a cart licence for this object, it•could not be said to be a building. There is no definition of the word"‘'building” in this Ordinance,unlike the Housing and Town ImprovementOrdinance (Cap. 199), and I do not intend to attempt to define what the.legislature has chosen to leave indefinite ; but one safe guide to ascer-taining whether there was in this case a building or not, is to ascertainthe object of the particular provision and to examine the context inwhich the word appears. The oTbject is clearly to prevent obstruction ofthe thoroughfare by encroachments which according to section 71 (11)may consist of anything from a building to a hedge or a ditch. Thestructure in question was high enough to enable the accused to conducthis business while inside it. Although the four wheels may havefunctioned when this building was first brought to this spot, what mayhave originally been a cart had certainly ceased to be that at the date•specified in the charge, and had become a building. I do not think thatthe mere obtaining of a cart licence issued by a Village Committee inrespect of this structure will enable the accused to circumvent theprovisions of section 71 (11). The licence was given to the accused to<enable him to use a cart as a cart and not as a building.
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TAMBIAH, J.—Kalpage v. Ounawardane
On the second count, the gist of the offence is exposing goods or waresover any portion of a road by means of temporary supports or otherwise-The words “ or otherwise ” mean in this context “ in any other way ”,for there is no limited genus which would control or restrict the meaning-of the phrase. The evidence showed that the accused was exposing goods-in this building, and he was therefore guilty.
The appeal is dismissed.
Appeal dismissed_