123-NLR-NLR-V-66-MOHAMED-Appellant-and-URBAN-COUNCIL-WATTEGAMA-Respondent.pdf
WEERASOORIYA, J.—Mohamed v. Urban Council, Wattegama
519
1961Present:Weerasooriya, J.
MOHAMED, Appellant, and URBAN COUNCIL, WATTE G A IMA,
Respondent
S. G. 293—M. G. Panwila, S96
Electricity Act—Sections 2 (1), 11, 60 (2) (h), 62 (l),69 (2)—Generation of electrical
energy—Installation set up by a person for use in his own properly—Inappli-cability of provisions relating to requirement of permit from local authority.
Criminal procedure—Charge in respect of a continuing offence—Mode of framing
it.
The accused-appellant, who was the owner of certain premises withinthe administrative limits of an Urban Council, Tan a cinema, known as theRoyal Cinema, on the premises. He supplied electricity to the cinema throughhis own generating plant without obtaining a permit from the local authority.He was chargod with committing a broach of section 11 («), read withsection 69 (2), of the Electricity Act.
Held, that section 11 of the Electricity Act must be read with section 2(1)of that Act. Since the accused was the proprietor of the premises, the require-ments of section 2(1) as to a licence did not apply, even if the cinema was a“ public place”. Section 11 is merely an enabling provision whereby a person,who is not a licensee, may obtain a permit to generate and supply electricalenergy in circumstances whero, if he does not obtain such a permit, ho wouldbe acting in contravention of section 2(1).
Before an accused person can be convicted of a continuing offence, acharge alleging the commission of such an offence should be framed againsthim. Accordingly, where the only continuing offence mentioned in a chargeis stated to have been committed during a specified period of time, an orderimposing a fine at the rate of a certain sum per day beyond that period isillegal.
Appeal from a judgment of the Magistrate’s Court, Panwila.
H. W. Jayewardene, Q.G., with S. H. Mohamed, for the accused-appellant.
K.Sivasubramaniam, with D. S. Nethsinghe, for the complainant-respondent.
Cur. adv. vult.
June 2, 1961. Weerasooriya, J.—
The accused-appellant is the owner of certain premises within theadministrative limits of the Urban Council, Wattegama, where he rana cinema known as the Royal Cinema. Electricity for operating thecinema and illuminating the premises was supplied by the accusedthrough his own 15 kilowatt generating plant. Section 1 ] of the Electricity
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WEERASOORIYA, J.—Mohamed v. Urban Council, Wattegama
Act, No. ]9 of 1950, provides, inter alia, that where “ a temporary supplyof electrical energy is required in any place to which electrical energycannot be supplied by a licens e or by the Chief Engineer, then, if suchsupply is for any fee or reward or such place is a public place, a permitto generate and supply electrical energy in such place may, upon appli-cation made in the prescribed form and marner, be granted to anyperson ….” The authority empowered to grant such a permit
within the administrative limits of the Wattegama Urban Council is itsChairman. Although the Council is said to be authorised by licence tosupply electrical energy within that area, it would appear that no supplyof electrical energy to the Royal Cinema is possible through the Council’sdistributing mains because they are too far away.
In terms of section 11 and the regulations made under section 60 (2) (A)of the Electricity Act, the accused applied by P2, dated the 6th September,
to the Chairman of the Wattegama Urban Council for a permit togenerate and supply electrical energy for a period of one year from the3rd July, 1957, at the Royal Cinema. Under the relevant regulationan applicant is required to pre-pay a fee calculated at the rate of Re. 1for each kilowatt of energy to be supplied for each day. As the accusedfailed to comply with this requirement no permit was issued to him.He continued, however, to supply electrical energy to the cinema fromhis generating plant, and the present prosecution is the sequel.
The charge against the accused, as set out in the summons dated the17th March, 1958, reads as follows :
that you did on the 1st day of January, 1958, and allcontinuing dates up to date at Rasella Estate, Wattegama.. generateand supply electrical energy to the Royal Cinema, Wattegama, andwhich place is a public place, without obtaining the necessary permitfrom the Chairman, Urban Council, Wattegama …. inbreach of section 11 (a) of the Electricity Act, No. 19 of 1950, and thatyou did thereby commit an offence punishable under section 69 (2) ofthe Electricity Act No. 19 of 1950.”
After trial he was convicted and sentenced to pay a fine of Rs. 75 anda further fine at the rate of Rs. 15 per day for the period 1st January,
to the 30th April, 1958, amounting to Rs. 1,800. From thisconviction and sentence he has appealed.
As regards the period 18th March to 30th April, 1958, no charge wasbrought against the accused that he committed a continuing offenceduring that period. It is a fundamental rule of procedure that beforean accused can be convicted of an offence, a charge alleging the commissionof such an offence should be framed against him. In the charge framedin the present case the only continuing offence alleged was in respectof the period 1st Januarj1, to the 17th March, 1958. The order imposinga fine of Rs. 15 per day in respect of the period 18th March to the30th April, 1958, is, therefore, illegal and cannot, in any event, beallowed to stand.
WEERASOORIYA, J.—Mohcimed v. Urban Council, Waltrgama
521
Section 11 of the Electricity Act, which the accused is alleged to haveacted in breach of, must be read with section 2 (1), which is as follows:“ Save as hereinafter expressly provided, no person, unless he isauthorised in that behalf by a licence granted by the Minister, shall—
(а)establish or maintain any installation for the generation of
electrical energy for the purpose of transmitting ordistributing such energy for use in any place which is not theproperty of that person, or
(б)for any fee or reward supply electrical energy to any other
person :
Provided that the requirements of the preceding provisions ofthis section as to a licence shall not apply tc tho establishment ormaintenance of any such installation or the supply of electrical energy—
for any purpose, by the Chief Engineer, or
in the circumstances and for the purposes specified in section
11, by the holder of a permit issued under that section.”
Section 62 (1) makes a contravention of the provisions of section 2 (1)a punishable offence.
Since the accused is the proprietor of the Royal Cinema, the require-ments of section 2 (1) as to a licence do not apply to the establishmentor maintenance by him of any installation for the generation of electricalenergy for the purpose of transmitting or distributing such energy foruse in that place. It was, perhaps, for this reason that no charge wasbrought against the accused fora contravention of section 2 (1). Thecharge that he committed an offence punishable under section 69 (2) ison the basis of an alleged breach of section 11 (a). Section 69 (2)imposes a general penalty where a person, not being a licensee, makesany default, not otherwise provided for, in complying with any of theprovisions of the Act or of any regulation made or order issued thereunderor contravenes any such provision. The substantial question, therefore,is whether the accused acted in breach of section 11 (a).
The prosecution case is that since the Royal Cinema is a public place,though owned by the accused, it was obligatory on him to have obtaineda permit before he made available a temporary supply of electricalenergy in such place. No argument was addressed to me by Mr. Jave-wardene on behalf of the accused that the Royal Cinema is not a “ publicplace ” within the meaning of that expression in section 11. But hecontended that section 11 is merely an enabling provision whereby aperson, who is not a licensee, may obtain a permit to generate andsupply electrical energy in circumstances where, if he does not obtainsuch a permit, he would be acting in contravention of section 2 (1). Ithink that this contention is correct. In the present case there was,in my opinion, no need for the accused to obtain a permit undersection 11 for the doing of that which, even in the absence of such apermit, did not amount to a contravention of section2 (1). He did not,therefore, act in breach of section 11 in not having obtained a permit.
622
WEERASOORIYA, S. P. J.—Rasiah v. Chellathurai
I express no opinion on the question whether, in a case where in theabsence of a permit under section 11 a person would be acting in .contravention of section 2 (1), default on his part in obtaining thepermit would also render him guilty of an offence punishable undersection G9 (2).
The conviction and sentence appealed from are set aside and theaccused acquitted. The fine, oi. any part thereof, if already paid by theaccused, will be refunded to him.
Appeal allowed.