014-NLR-NLR-V-48-MUHEED-Appellant-and-ABEYESINGHE-P.-S.-271-Respondent.pdf
Muheed v. Abeyesinghe.
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1946Present: Dias J.
MUHEED, Appellant, and ABEYESINGHE (P. S. 271),Respondent.
100—M. C. Kegalla, 10,975.
Defence Food Control (Special Provisions) (No. 3) Regulations, 1943,Regulation 15 (2)—Charge of unlawful possession of rice ration books—Prosecution must prove actual and exclusive possession.
In a prosecution for possession of rice ration books other than thoseissued to the accused and the other members of his household, in breachof Regulation 15 (2) of the Defence Food Control (Special Provisions)(No.3) Regulations, 1943, it must be proved that the accused’s possessionof the books was actual and exclusive.
PPEAL against a conviction from the Magistrate’s Court, Kegalla.
F. A■ Hayley, K.C. (with him H. W. Jayewardene), for the accused,appellant.
J.G. T. Weeraratne, C.C., for. the Attorney-General.
1 (1943) 44 N. L. R. 466 at 468.
Cur. adv. vult.
39
DIAS J.—Muheed v. Abeyesinghe.
October 29, 1946. Dias J.—
The appellant was charged under section 52 (3) (a) of the Defence (Mis-cellaneous) Regulations of 1942 with having, in breach of Regulation 15(2) of the Defence Food Control (Special Provisions) (No. 3) Regulations,1943, on January 10, 1946, in his possession certain rice ration books otherthan those issued to himself and the other members of his household.
Two accused were originally charged. The police withdrew the chargeagainst the 2nd accused.
The appellant is the manager of one Ahamad’s boutique. There areseveral salesmen employed in it, and 142 householders are “ attachedto itfor purposes of drawing their rations.
On the day in question at 3.30 p.m. Captain Samaraweera. thesupervising officer of the Kegalla Food Control Department, searchedthis boutique in the presence of the Assistant Superintendent of Policeand the appellant. In a drawer of an almirah behind the cashier’s table•■ere found nine rice ration books. These admittedly did not belong to'any person living in that boutique. Three of these books belonged to thehousehold of a man called Abdul Hamidu, and four of them belonged to awoman, Kiribandu. Both these persons were called by the prosecution.Hamidu says that on the day in question he came with the books to theboutique to buy goods. Malarial fever came on while he was there. Heslept on some bags. Later having purchased his things he went awayleaving his ration books behind by mistake. Kiribandu says that shewent to the boutique leaving a sick child at home. Another child cameand told her that the patient was in convulsions. The distracted motheri nn home forgetting to take the ration books. This evidence is roundedoff by the accused who says that he has nothing to do with sales, and untilthe authorities found them in the almirah, he did not know they werethere. He did see some ration books on a table in the boutique and sentword to the owners before the search.
A more foolish prosecution cannot be imagined. Possession, to becriminal, must be actual and exclusive, for criminal liability does notattach to constructive possession, Banda v. Haramanis '■
Where a person is charged with being in possession of a thingunlawfully the prosecution must prove that such possession was withthe knowledge and sanction of the accused—Talaisingham v. Muttiah
The evidence led for the prosecution itself proves that the presenceof these books in the almirah cannot be held in law to be in the possessionof this accused. Were a guest to visit the house of Captain Samaraweera,the supervising officer, Food Control, Kegalla, and accidentally leftbehind his ration book, which Captain Samaraweera kept in his almirahuntil it was reclaimed, he will, I think, be indignant were he to be chargedunder this Regulation and fined Rs. 10.
I quash the conviction and acquit the appellant.
Appeal allowed.
1 (1910) 21 N. L. H. 141.
(1936) 39 -V. L. R. 140.