043-NLR-NLR-V-42-MAYOR-OF-GALLE-v.-THE-ESTATE-&-MOTOR-ENGINEERING-COMPANY.pdf
Mayor of Galle v. The Estate & Motor Engineering Co.
179
1940Present: Moseley S.P.J.
MAYOR OF GALLE v. THE ESTATE & MOTORENGINEERING COMPANY.
756—M. C. Galle, 3,565.
Motor Car Ordinance, No. 45 of 1938 s. 30—Mayor is a Municipal servant—Possession of unlicensed motor lorry—Recovery of licence duty—Certi-ficate of licensing authority.
The Mayor of Galle is a Municipal servant within the meaning ofsection 148 (b) of the Criminal Procedure Code.
The; power of a Court to order the recover}! of the licence duty undersection 160 (1) of the Motor Car Ordinance can only be exercised on theproduction of a certificate signed by the licensing authority stating theamount of duty which would have been payable if the licence had beenduly issued.
PPEAL from a conviction by the Magistrate of Galle.
Gilbert Perern, for accused, appellant. ;
A. H. C. de Silva, for complainant, respondent. .
Cur. adv. vult.
180 MOSELEY S.PJ.—Mayor of GaUe v. The Estate & Motor Engineering Co.December 17, 1940. Moseley J.—
The appellant was charged with the possession of a motor lorry forwhich no licence was in force. Proceedings were instituted on a writtenreport by the Mayor of Galle which is as follows : —
“ This 5th day of July, 1940.
Wijayananda Dahanayake, Mayor of Galle, in terms of section148 (b) of The Criminal Procedure-Code, 1898, hereby report to Court,that The Estate and Motor Engineering Co., Ltd., Galle, on or aboutthe first day of January, 1940, possess a motor lorry bearing registeredNo. X 1640, for which a motor car licence was not in force, in contra-vention of section 29 (1) of the Motor Car Ordinance, No. 45 of 1938,and thereby committed an offence punishable under section 158 of thesaid Ordinance read with section 150 (1) thereof.
I further request that the sum of Rs. 120 being the licence dutypayable by the said person on the said motor lorry for the year 1940be recovered in terms of section 160 (1) of the said Ordinance.
W. Dahanayake,
Mayor of Galle.
(Licensing Authority.)”
It is common ground that notice of non-user, as provided by section 30of the Motor Car Ordinance (No. 45 of 1938) was given in respect of theyear 1939. It is also agreed that a similar notice was not given in regardto 1940, although the manager of the appellant Company testified thatthe Company had taken steps at the end of 1939, towards cancellation ofregistration.
The finding of the learned Magistrate is “Guilty on both counts.Sentence—warned and discharged on the first count and convicted andsentenced to pay Rs. 120 or in default two months’ simple imprisonmenton the second count ”.
. The first point taken in appeal is that the complaint, that is the writtenreport, is irregular in that the Mayor is not a “ municipal servant ” withinthe meaning of section 148 (1) (b) of the Criminal Procedure Code. Inthis connection I have been referred to section 67 (1) of Cap. 194 of theLegislative Enactments which provides for the appointment of' a MunicipalCommissioner “ who shall be, next to the Mayor, the chief executiveofficer of the Council, and to whom all other Municipal officers andservants shall be subordinate ”. Section 68 of the same Ordinanceprovides for the appointment of a number of other persons who shall bedeemed, with the Commissioner, to be “ executive officers of the Council ”.A possible inference is that only persons subordinate to the Mayor,Commissioner and other executive officers can be correctly styled“ municipal servants ”. This may be so for. the purposes of Cap. 194.Is it, however, to be supposed that the Legislature in framing section148 (1)(b) of the Criminal Procedure Code deliberately conferred a
right upon subordinate servants and withheld it from their superiorofficers? In my opinion the term “ municipal servant ” means aservant of the Municipality in the wider meaning of the latter word, thatis to say, a servant of the self-governing township rather than a servant
181
Sivaparka&apillai v. Supramaniam.
of the governing body. There is therefore, in my view, no irregularityin the complaint in this respect. Nor is there in regard to the descriptionof the accused, a matter for which provision is made by section 45 (3) ofthe Criminal Procedure Code.
In regard, however, to the finding it is difficult to understand how thelearned Magistrate came to treat the charge as if it contained two counts.It seems to me that the appellant was properly convicted of possessionof a motor vehicle for which a licence was not in force. Further, it seemsthat the Magistrate was right, in the circumstances of the case, in takinga lenient view of the offence. It was then open to him, upon productionof a certificate signed by the licensing authority and stating the amountof duty which would have been payable if application for the licencehad been duly made and the licence duly issued, to order that amountto be recovered from the accused.
No such certificate was produced, but the Magistrate appears to havetreated the second paragraph of the complaint in the light of a certificateand not only ordered the amount to be paid but imposed a term ofimprisonment in default. Inasmuch as it is expressly provided that theamount is to be recovered as though it were a fine, the imposition of adefault term is clearly illegal and in any case could not be allowed tostand. Moreover I do not see how the second paragraph of the com-plaint, which is in the nature of a request and is probably intended to bea reminder to the Court of the power conferred by section 160 (1), can byany stretch of imagination be regarded as the certificate contemplatedby that section. '
The conviction on what has been termed the " first count ” is affirmed.The order for payment of Rs. 120 and for the default term of imprisonmentis set aside.
The appeal, to that extent, is allowed.
Conviction on 1st count affirmed.
Conviction on 2nd count set aside.