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MACK v. TAMBI LEBBE at at.
P. £7., Batticaloa, 10,106.
Petroleum Ordinance, No. 6 of 1887, *». 14, 20, and 37—Potietring orkeeping petroleum—Proof of exittence of a place licented for etorage ofpetroleum—Burden of proof a* to exception*.
A plaint alleging that the defendants possessed in their premisespetroleum exoeeding 50 gallons, contrary to section 14 of the OrdinanoeNo. 6 of 1887, and thus became punishable under section 20, is not so badas to make it wholly defective.
••Possessing” connotes “keeping.”
The onus being on the accused to justify his keeping, it is notnecessary under section 37 for a prosecutor to specify or negative in hisplaint, or prove, any exception or exemption which does or does notaccompany the description of offence.
In view of the rule made by the Governor in Council, that all petroleumlanded in the Island should be carried at once to premises in respect ofwhich a license has been granted, it is the duty of a person who desiresto keep more than the permitted quantity, to provide himself withlicensed premises, and it is not incumbent on the prosecutor to allegeor prove the existence of a place which th9 Government can license forthe storage of petroleum.
HE facte of the case appear in the judgment of the SupremeCourt.
On appeal againBt a conviction, Domhorat appeared for theaccused appellant.
Dias, Crown Counsel, for complainant respondent.
21st February, 1895. Withers, J.—
The defendants on the 22nd day of December last were jointlycharged, in a complaint laid before the Magistrate by a “localauthority,” in the sense of the term used in Ordinance No. 6 of1887, as follows:—
“ That the defendants did on the 17th day of December, 1894,“at Chapel street, Batticaloa, within the jurisdiction of this Court,“ possess in their premises a quantity of petroleum, to wit, kerosine“ oil, exceeding 50 gallons, contrary to the provisions of the Ordi-nance No. 6 of 1887, clause 14, and thus became punishable under“ section 20 of the said Ordinance.”
The defendants were accordingly summoned to appear andanswer this charge.
On the 29th of December last the defendants appeared beforethe Magistrate, who read and explained to the parties charged thoparticulars of the plaint. Thereupon the defendants admittodthat they had more than 50 gallons of oil in store. They were
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accordingly sentenced to pay a nominal fine of 50 cents,the reason for their being dealt with so lightly being givenin a judgment in a similar case tried and determined thesame day.
From this sentence they appealed.
It was urged by Mr. Dornhorst that the appeal was taken ona point of law, the point being that the complaint containedno charge of any statutable or common law offence, and thata plea of guilty to an innocent act was no plea at all. Theargument for the appellants was partly technical and partlymeritorious—technical, in that “possessing” petroleum is nooffence, but only “ keeping ” it, under the 14th section of theCode, and that it was not alleged that the prohibited quantityof petroleum was possessed without a license or in contraventionof a license.
The next serious contention was that, before the appellants couldbe prosecuted under the 14th section of the Ordinance, it shouldbe alleged and proved that there existed a place which theGovernment could license for the storage of petroleum, and hementioned other conditions precedent indicated in the Ordinance,which it was for the prosecution to allege and prove, before thedefendants could be called on to plead to the charge of the offenceof keeping more than 50 gallons of petroleum without a license,or in breach of the terms of a license.
As to the technical point, I cannot rule that the defendantswere prejudiced in any way by the language used in the plaint.Though “ kept ” would be a more apt word than “ possess,” andwould be the proper word to use, because it is the very word usedin the section in question, I cannot say that it is so bad as tomake the plaint wholly defective. The framers of the Ordinancelaxly used the word “ possess ” for the word “ keep ” in the verynext section, the 15th, and it may be fairly argued therefrom thatone word connotes the other.
Then the 37th section enacts that the exception, Ac., thoughaccompanying the description of the offence, need not be specifiedin the plaint, or proved if specified in it. The onus is laid fromthe first on the accused to justify his keeping at a certain placemore than the permitted quantity of petroleum.
On the more serious point taken, I am also against Mr.Dornhorst.
In the Government Gazette of the 4th March, 1887, the Gover-nor in Council caused it to be proclaimed that this Ordinance wasto come in force throughout the Colony from and after the 1st ofJuly, 1887.
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In the Government Gazette of the 9th August, 1887, certainrules were proclaimed by the Governor in Council (designatedPetroleum Rules) to be observed throughout the Island, includingthe rule that “all petroleum landed in the Island should be
“carried at once to to or to premises in
“ respect of which a license for the possession of petroleum has“ been granted.”
If a person wishes to keep more than the permitted quantity ofpetroleum for trade, it seems to me clear that he must take careto keep it in premises sufficiently safe for the purpose. He mustput a place up for himself such as will satisfy the authority underthe Ordinance who is competent to grant him a license for thekeeping of more than 50 gallons of petroleum at a time. If hehas no such premises, or neglects to put up such premises, hekeeps the prohibited quantity at his risk.
The Ordinance expressly enacts in section 14 that no quantityof petroleum exceeding 50 gallons shall be kept by any oneperson (here the defendants are trading jointly as one person) oron the same premises (as here), except under a license from thelocal authority.
If no person haB been appointed to issue licenses (see defini-tion “ local authority ”) the Government should be asked toappoint one.
The 20th section enacts that any person who in contraventionof this Ordinance or of any rules made hereunder possesses
petroleum shall be punished with imprisonment, simple
or rigorous, or a fine within certain limits.
It is therefore an offence to contravene the Ordinance. Thedefendants in fact admit they have contravened the Ordinance.They were properly sentenced. The judgment is right.
It need hardly be said that Government would not demand astorage fee for petroleum kept by a person on his own premises.
MACK v. TAMBI LEBBE et al