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Present: Schneider J.
MUDALIYAR, WELLABODA PATTU v. SILVA.
770—P. C. Balapitiya, 11,244:
Satehore—Removed of cored from bed of sea—Prohibition by GovernmentAgent—Meaning of the word " removed ”—Ordinance No. 12 oj1911, ss. 5 and 6.
A Government Agent has no power to prohibit the removalof coral from the bed of the sea. The word “ removal ” for thepurposes of the Seashore Protection Ordinance means moving froma place where a thing is found.
PPEAL from a conviction by the Police Magistrate of Bala-pitiya. The accused was charged with having illicitly
collected sea coral stones from the seabeach at Akurala within anarea prohibited under section 5 of Ordinance No. 12 of 1911.
Rajapakse, for accused, appellant.—The scope of sections 3 and 5must be distinguished. Under section 3 the Governor may prohibitthe removal of sand or coral from certain proclaimed areas of the
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seashore or from the bed of the sea contiguous thereto. Undersection 5 the Government Agent may prohibit the removal of such,from certain particular spots on the seashore only.
The charge and conviction under section 6 are based upon sec-tion 5. What is punishable under section 6 is the removal. Theplaint, evidence, and judgment refer to the collection of coral by the.accused.
Moreover, the removal must be the taking away of sand, coral,&c., from the area or spot to a place outside such area or spot.Otherwise, every step taken by a person walking on the seashore ofsuch area or spot will be an offence, because a certain quantity ofsand is displaced or dislodged from its position.
Further, the evidence is vague and meagre. There is no legalproof that the spot is a prohibited one, and the Government Agenthas no power to prohibit the removal <^f coral from the bed of thesea. Only the Governor may do so.
Basnayake, C.C., for respondent.—The conviction is under section6, and therefore the accused must be deemed to have been punishedfor the removal. Collection of coral is tantamount to a removalof coral within the meaning of the Ordinance. It is not necessarythat the substance should he removed to a place outside the areaas long as its position is shifted. (See section 7.)
The Police Headman says orally that the area is a proclaimedone.
Counsel also referred to Karunaratne v. Boteju.1
December 18, 1928. Schneider J.—
Counsel lor the appellant based his argument of this appeal onthe assumption that the conviction was for the removal of coral incontravention of a prohibition under section 3 of the SeashoreProtection Ordinance, 1911 (No. 12 of 1911). But in fact theconviction is not for a removal, as I shall presently point out. He.submitted two objections to the conviction. He contended firstthat the removal contemplated in the Ordinance is a removal ortransporting from within a proclaimed (section 3) or prohibited(section 5) area to a place outside such area, and that there was noevidence of any such removal.
He next contended that there was no evidence that the spot orplace from which the coral is alleged to have been removed is onecoming within a prohibition made under section 5.
With the first of his contentions I am unable to agree. Theword “ remove ” with its variations used in the Ordinance mustbe given the meaning the word bears in ordinary language of “ totake off or away from the place occupied ; to change the situationof ; to convey to another place.” The language of the Ordinance
1 7 N. L. R. 127.
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does not lend any support to his contention that the conveyingmust be to a place outside a given area. The object of the Ordinanceand its history also appear .to be against his contention. Thepresent Ordinance was enacted in place of the Ordinance No. 20 of1865, which it repealed (section 2). That Ordinance w&s intituled“ An Ordinance to provide against the removal of stones and othersubstances from certain parts of the seashore. ” It was while thepresent Ordinance was in draft form, it would appear, that the caseof Kamnaratne v. Boteju1 came before this Court on appeal. Itwas contended there, but unsuccessfully, that “ other substances ”did not include sand. Moncrieff J. in the course of his judgmentsaid : “ Again, if sand were of a different substance, it seems to meabsurd that the Legislature should forbid through the GovernmentAgent the removal of stones from the seashore and permit theremoval of the seashore itself. The seashore is in some placesalmost entirely composed of sand. The Legislature must have asmaller share of wisdom than I credit it with if it did not meanby this provision to give the Government Agent power to prohibitthe removal of every substance going to form the seashore whichcan add to the support afforded by the seashore to the adjacentland. ”
The observation indicated that he then took the view that theobject of the Ordinance was the protection of land adjacent to theseashore.
In the present Ordinance the object of the Ordinance as set out
in the preamble is to make better provision for “ the prevention of
damage to land bordering the sea, and buildings thereon, caused
by the removal of sand, stone, coral, and other substances from the
sea and seashore. ”
It should be noticed that the removal, according to this preamble,'is from the sea and seashore, not from there to some other place.The language used in section 3 is to the same effect. It speaks ofan area “ from or over which no sand, stone, coral, or other substancemay be removed. ” The words V over which ” clearly indicate thatthe removal from one place to another place, even within the area,is not permitted.'
Section 7 puts the matter beyond any controversy. It enactsthat removal “ shall include the doing of any act upon any propertywhether belonging to any person or persons whomsoever or otherwise,
. which causes the disturbance or displacement of coral, &c., on orfrom any place. ” It would appear, therefore, that removal for thepurposes of the Ordinance means moving from the place where thething is to be found.
*7 N. L. R. 127.
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As the act alleged to have been committed is said in the plaintto be in contravention of section 5, I will examine that sectionin detail. It empowers the Government Agent of a Province toprohibit the removal of coral, &c. “ from any spot or place onthe seashore within the Province adjoining or near any public road,thoroughfare, public work, or public building, or adjoining or nearany part of the Ceylon Government Railway.”
It makes his judgment conclusive whether such removal willinjure the object the protection of which is contemplated.
And it provides that notice of such prohibition shall be given bysuch means as shall sefem to him likely to give sufficient publicity'thereto.
There appear to be two main reasons why the conviction in thiscase cannot be sustained.
The evidence is altogether of a vague character. The prosecutionwas initiated, with the authority of the Government Agent of theProvince, by the Mudaliyar of the pattu within which the act isalleged to have been corpmitted.
His plaint was that the appellant “ did illicitly collect sea coralstones from the seabeach at Akurala within the area prohibited•under section 5 of the Ordinance. ”
He gave evidence which I will summarize as follows :—He receivedinformation that a large number of people “ were collecting coralstones and heaping them up. ” He proceeded to the spot with thePolice Officer of Seenigama. On arrival at the spot he saw six oreight men and about seven women, girls, and boys “ putting outcoral stones. ” On seeing him they ran away. Close to the spotwhere he stopped his car on the high road, which is 25 feet fromwhere the men and women were, he saw two carts halted and twomen putting coral stones into them. Seeing him they too ranaway. He chased after the men on the beach and one of them wasarrested. He is the accused. A fork, mamoty, and a basket weretaken into custody, presumably found at the spot on the beachwhere there were seven heaps of coral. He said the fork, &c., hadbeen left behind by the accused, and that the accused himselfassisted in collecting the coral and putting the same into the carts.Both these statements are idere conjecture, because his evidence insubstance is that the accused was among those on the beach at thetime he arrived and who ran away on seeing him. He could notpossibly have actually seen the accused putting the coral into thecarts. He said one of the carts contained about 25 and the othera few baskets of coral. Upon this evidence the charge framed was 'that the accused “ illicitly collected sea coral stones from the sea-beach and thereby committed an offence punishable under section 6of the Ordinance. ” It should be expressly mentioned that theMudaliyar did not state that the place was within a prohibited area.
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The only other witness called for the prosecution was the PoliceOfficer of Seenigama. His evidence was in substance the following ;He accompanied the Mudaliyar. As the car in which they travelledstopped, some men and women ran away “from near the placewhere the coral stones had been collected, ” and the acciised, “ whowas filling a basket with coral stones from a heap with a mamotyalso began to run, dropping the mamoty as he did so. The heap ofcoral near which the accused was was worth about 75 cents to arupee. He chased and arrested the accused. The place wherethe coral was being collected was about 20 to 25 fathoms fromthe high road, and anyone going along it could see '* the stonesbeing put out and being collected.” “ This ” (vaguely) “ is aproclaimed area.”
The defence was that the accused had purchased one heap of thecoral from some person named, but I need not consider the defenceas I agree with the Magistrate that it appears to be false.
* The Magistrate seems to have convicted the accused of the chargeof illicitly collecting coral to which I have.already referred. I say“ seems, ” because in the judgment there is no description of theoffence given. It only states that the verdict is that the accused isguilty under section 6 of the Ordinance. In the statement of hisreasons he speaks no less than twelve times of the accused havingillicitly collected coral stones, as if the offence consisted of collecting.He appears not to have considered what it is the Ordinance has madean offence.
Imparting to the evidence for the prosecution the meaning mostfavourable to the prosecution, its effect is that the men, women, andchildren seen by the Mudaliyar and the Police Officer had beenfishing out from the bed of the sea coral which they had collectedinto seven heaps, and spme coral—not necessarily the coral socollected—had been put into the carts.
Assuming that I accept the evidence as proving the “ removal ”within the meaning of the Ordinance, of the coral from the sea bed,that discloses no offence. A Government Agent has no authorityunder the Ordinance to prohibit such removal. Under section 5he can prohibit removal only from the seashore. His authority todo that alone is in contrast with the authority conferred on theGovernor under section 3, by proclamation to prohibit removalfrom or over any part of the seashore or from “ the bed of the sea. ”The Legislature, for some reason, had refrained from vesting aGovernment Agent with that power.
Then assuming that the coral had been removed from the seashore,there is no evidence such as the law will accept that the. spot withinan area rightly prohibited by the Government Agent. The virtualcomplainant, the Mudaliyar, does not say in his evidence that it iswithin a prohibited area. The Police Officer says that it is within
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a “ proclaimed area, ” that is, proclaimed by the Governor, undersection 3> which is not the charge in this case. I must assume thata Government Agent’s prohibition will be in writing. That writingmust be produced to prove the prohibition, or secondary evidencewhen admissible. The oral evidence of the Police Officer is whollyinsufficient. There is no evidence whatever of the notification ofthe prohibition by the Government Agent. Before the accusedcan be • convicted the prohibition and its notification must beproperly proved. That has not been done.
I am averse from sending the case back to enable the prosecutionto produce the necessary evidence that the removal was from aprohibited area, because even if the necessary proof is forthcomingI would view with great suspicion any evidence that may now beproduced to prove that the coral had been collected from the sea-shore and not from the sea bed as the evidence now on record is.
Furthermore, the value of the coral traced to the accused is saidto be only 75 cents.
I set aside the conviction and acquit the accused.
MUDALIYAR, WELLABODA PATTU v. SILVA