115-NLR-NLR-V-51-MAJEED-et-al-Appellants-and-MANNAMPERUMA-P.-S-Respondent.pdf
Majeed v. MannampewvKi
477
1949Present: Pulle J.
MAJEED et al., Appellants, and MANXAMPEHUMA (P.S.), Re-pondent8. C. 9J3-9JI-M. C. Hatton, 13,733
Protcetirm of Produce Ordinance {Cup. ?S), Section 4—Charge of unlawful ponses*tooof tea leaf—Particulars which such charge should contain.
A proper charge under section 4 of the Protection of Produco Ordinance shouldsot out particulars of the circumstances from which one can reasonably susjiectthat the produce was not honestly in tho possession of the person accused.
^VpPEALS from a judgment of the Magistrate’s Court, Hatton.
Colvin R. de Silva, with M. M. Kumarakulasinqham, for accusedappellants.
R. de Fonseka, Crown Counsel, for Attornoy-General.
Cur. adv. vult.
478
PULLE J.— Sfajcedv. Afannamptrmna
November 21, 1949. PullkJ.—
The two acouaed-appellan ts, who have each been sentenced to aterm of six months’ rigorous imprisonment, appeal from a convictionundor section 4 of the Protection of Produce Ordinance (Cap. 28). Thematerial portion of section 4 roads as follows :—
“ Whenever anyone is found in possession of any of the followingdescriptions of produce, that is to say :—
(a) any …. tea leaf (whether in a natural or manufacturedstate);
(*). (c), (rf)
under suoh oircumstancc that there is reason to suspect that the sameis not honestly in his possession, and he is unable to givo to the courtbefore whom he is tried a satisfactory account of his possession thereof,such person shall be guilty of an offence, and shall be liable on summaryconviction before a Magistrate, to imprisonment of either descriptionfor a period not exceeding six months, or to a fine not exceeding twohundred rupees or both . …
On the Oth June, 1949, Police Sergeant Mannamperuma of Maskeliyamade a report to Court under section 148 (1) (6) of the Criminal ProcedureCode on which the charge set out below was based. That charge reads:—
" you are hereby charged that you did within the jurisdiction ofthis Court at Upcot Road, Maskeliya, on the 3rd Juno, 1949, were foundin possession of a gunny bag containing fifty-six (56 lbs.) of manufacturedtea and were unable to give a satisfactory explanation of their possessionthereof and thereby committed an offence under section 4 of theProtection of Produce Ordinance (Cap. 28)“.
It would seem from the terms of the section that it is the duty of theprosocution to alloge circumstances which givo rise to a reasonablesuspicion that the produce in question was not honestly in the possession ofthe accused. There is no burden on the accused to give to the prosecutiona satisfactory account of the possession. The burden to satisfy the court,and not the prosecution, arises only* after the prosecution has establishedthe existence of the circumstances which give rise to the suspicion referredto in section 4. In my opinion the charge framed against the appellantsis misconceived. A proper charge under the section ought to have setout the particulars of the circumstances from which one can reasonablysuspect that the produce was not honestly in the possession of the personaccused. It was for the court thereafter to find whether the accusedhad satisfactorily accounted for his possession.
The need for giving particulars of the circumstances in the chargebecomes apparent when one considers that it ought to be open to anaccused person upon being charged to submit that on the facts set out inthe charge shoot no offence is disclosed. Secondly, ho is entitled to haveproper notice of the circumstances giving rise to suspicion of dishonestpossession in order that he may be in a position to adduce ovidonco toprove the non-oxistonoo of the circumstances.
NAGAWNGAM J.—Ptrera v. Jansz
479
Learned Counsel lor the appellants argued that the charge was badInasmuch as it stated that the tea was found in the possession of theappellants at Upcot Hoad, Maskeliya, whereas it was in fact found atGlentilt Gap, three miles away from Maskeliya. If this had been theonly infirmity in the charge I should have ignored it as a mere irregularity.The other considerations which I have already advorted to leave me withno option but to interfere in this case. I would, therefore, set aside theconviction nnd senttjiice and Kmii ikv tosi? for trial tin Vyulv*o nnAtk«i>
Magistrate.
I trust that the prosecution will avail itself of the sorvices of a pleaderto draft a fresh report under section 148 (1) (6) of the Criminal ProcedureCode on which a proper charge could be based and also to lead evidence.The absence of a pleader for the prosecution at the trial already holdhad apparently compelled the learned Magistrate to examine the appel-lants at somo length after they had been cross-examined by the PoliceSergeant, himself a witness, who conducted the prosecution.
Fresh trial ordered.