028-NLR-NLR-V-01-MALHAMI-MUHANDIRAM-v.-JUANISA-et-al.pdf
( 86 )
MALHAMI MUHANDIRAM v. JUANISA et al.
P. G, Ratnapura, 10,804.
Gemming without license—Criminal trespass—Section 247 of the Penal Code—Evidence necessary to support charge of criminal trespass—OrdinancesNo. S of1890 and No. 10 of 1894.
Gemming without a license on the bank of a river flowing along theproperty of a private owner is not punishable as criminal trespass undersection 427 of the Penal Code without proof that entry on such land wasmade with intent to commit an offence as defined in section 38 of theCode to intimidate, insult, or annoy any person in possession of suchproperty.
Unlicensed gemming on lands other than Crown property is punish-able under Ordinance No. 5 of 1890, amended by Ordinance No. 10of 1894.
r I lHE complainant charged the defendants with having com-mitted criminal traspass on a certain land of which hehad the leasehold, and theft by opening gem mines therein andstealthily removing gems, in breach of sections 433 and 367 ofthe Penal Code.
It was proved that the accnsed had a pit by the edge of theriver which skirted the land in question, and that water was baledfrom the pit into the river, whence it was contended that the pitwas in the land, and that the accnsed working in the pit were guiltyof criminal trespass.
The Police Magistrate found accordingly, and sentenced each ofthe accused to pay a fine of Rs. 10, under section 433 of the PenalCode.
On appeal there was no appearance of counsel for appellant orrespondent.
( 87 )
28th May, 1895. Lawrib, A.CJ.—
Is unlicensed gemming on the sandy and gravel banks of astream a criminal trespass on the property of the owners of theground adjoining the stream ?
It is so, if gemming be an offence as defined in section 38of the Penal Code, or if the entry on the land be done to intimi-date, insult, or annoy the person in possession of the property.
There are no facts proved from which an intention to intimidate,insult, or annoy can be inferred.
The meaning of the word “ offence ” in section 427 of the PenalCode is defined in section 38 as denoting a thing punishable inCeylon under the Penal Code, or a thing jmnishable under anyother law with imprisonment for a term of six months or upwards,whether with or without fine.
Gemming without a license is not am offence under the Code.It is an offence under Ordinance No. 5 of 1890 amended byOrdinance No. 10 of 1894. But for a first offence the punishmentis not more than three months^ and hence the entry on a land forthe purpose of gemming is not criminal trespass. It must beprosecuted and punished under Ordinance No. 5 of 1890.
I set aside the conviction and sentence, and acquit the accused.
♦