094-NLR-NLR-V-16-LUSHINGTON-v.-MOHAMADU.pdf
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IMS.
Present: Pereira J.LUSHINGTON v. MOHAMADTJ.
391—P. C. Ghilaw, 37,297.
Prosecution for an offence under s. 22 of the Forest Ordinance, 1907—Special procedure prescribed in chapter VII. of the Ordinance■ not intended to exclude the operation of a. 148 of the CriminalProcedure Code.
A prosecution of an offence under section 22 of the FoiestOrdinance, 1007, may be commenced. in the usual way in whichprosecutions are instituted in Police Courts. In such a case,therefore, an information under section 148, sub-section (1) (6), ofthe Criminal Procedure Code would be in order. The specialprocedure prescribed in chapter VII. of the Ordinance was notintended to exclude, in the case of any offence under the Ordi-nance, the operation of section 148 of the Criminal .ProcedureCode.
'"J'HE facts appear from the judgment.
Wadsworth (with him Balaeingham), tor the accused-appellant.—The Assistant Conservator should have reported the matter to theGovernment Agent. It was for the Government Agent to reportthe matter to the Police Court. It was only then that the Courtwould have jurisdiction to inquire into the offence. It it not open tothe Conservator of Forests to proceed under the Criminal Procedure.Code, section 148 (1) (6). The procedure indicated by chapterVII. of the Forest Ordinance should be observed for a prosecutionunder this Ordinance. This is a technical offence, and the procedureindicated should be strictly followed, as was held in the case ofprosecutions under the Labour Ordinance.
Garvin, Acting S.-G., for the respondent.—The accused hascommitted an “ offence ” within the meaning of the Penal Code.Proceedings may be commenced in the Police Court in the mannerindicated in section 148 in the case of all offences, unless that sectionis expressly excluded by Ordinance. Counsel relied on Mahawala-tenne v. Mohitihamy.1
Cur. adv. vult.
July 4, 1913. Pereira J.—
In this case the accused has been convicted of cutting reservedtrees in a forest contrary to the provisions of the Forest Ordinance,1907—an offence punishable under section 22 of the Ordinance-
i (1910) 6 Bel. 86.
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The complainant in the case describes himself as^Assistant Con-servator of Forests, and the information given by him to the Courtis information under section 148 (1) (b) of the Criminal ProcedureCode. Objection has been taken by the accused’s counsel that theprocedure prescribed by chapter VII. of the Ordinance is exclusive,and that it was not open to the complainant to file an informationunder the Criminal Procedure Code. The first question-. to bedecided is whether the provisions of chapter VII. of the Ordinanceexclude the application of the Criminal Procedure Code to a caselike this. That Code applies to all offences, because the word** offence,” as defined by it, means any act or omission made punish-able by any law for the time being in force in this Island. Thecutting of reserved trees contrary to the provisions of the ForestOrdinance is by the-Ordinance declared to constitute an offence(see section 22), bo that in the absence of some special provision ofthe law excluding in clear terms the application of the CriminalProcedure Code to an act such as that complained of in this case,that Code must be deemed to apply to it. Is chapter VII. of theOrdinance such a provision? That chapter provides (section 39)for a certain report being forwarded by the Government Agent tothe Police Magistrate, and the Magistrate taking such measures asmay be necessary for the trial of the accused named in the reportand the disposal of property referred to in it. This report is areport that is required to be sent to the Government Agent or theAssistant Government Agent under section 88, and under thatsection a report can be sent only where timber or forest producehas been seized under section 37. In the present case no suchproperty has been seized, and this is a sufficient answer to thecontention put forward. But assuming property has been seized, Ithink that the procedure under section 39 is merely cumulative:it does not displace the procedure of the Code. Section 39 doesno more than cast a certain duty on the Government Agent, undercertain conditions, for the expeditious termination of proceedingscommenced under section 37. What I have said above is verymuch in accordance with the view taken by Middleton J.. in thecase of Mahawalatenne v. Mohitihamy.1
On the facts I need only say that I have considered the evidencecarefully, and I see no reason to differ from the view taken by theMagistrate. There is, no doubt, a mass of evidence for the defence,hut I think that the Magistrate has. given good reason for preferringto it the evidence for the prosecution.
I affirm the conviction and sentence.
1918.
PBiuba J.
Ltuhington
e.
Mohamodu
Affirmed.
* (1910) 5 Bol. 85.