040-NLR-NLR-V-72-P.-A.-HAMZA-NAINA-Appellant-and-INSPECTOR-OF-POLICE-GAMPAHA-Respondent.pdf
WIJAYATILAKE, j.—Hamza Naina v. inspector of Police, Gampaha
166
1968Present: Wijayatilake, J.
P. A. HAMZA NAINA, Appollant, and INSPECTOR OF POLICE,
GAMPAHA, Respondent
S.C. 66S/6S—31. C. Gampaha, 1S233(A
Control of Prices Act—Sections 3 (2), 4—Contravention oj Food Price Order—Place ofoffence—Whether Court can talc judicial notice that it fell within ColomboDistrict—Evidence Ordinance, s. 57—Administrative. Districts Act {Cap. 392),«• ^ (2)- –
In a prosecution for contravention of a Food Price Order which is applicableto the Colombo District excluding the Municipal limits of Colombo, the Court isnot entitled to presume that the place where the alleged offence was committedfell within the Colombo District in the absence of any evidence regarding thelimits of the Colombo District.
_/.PPEAL from a judgment of tho Magistrate's Court, Gampaha.
If. G. Jayelileke, for the accused-appellant.
Priyantha Perera, Crown Counsol, for the Attomcy-Genoral.
October 30, 19C8. Wijayatilake, J.—
In this caso the accused is charged with soiling beof abovo tho maximumprico in contravention of tho Food Prico Order No. FC/B SF 7 (6) of15.10.G4 rnado by tho Assistant Food Controllor of Prices (Food) ColomboDistrict under Section 4 read with Section 3 (2) of the Control of PricesActs No. 29 of 1950 and 31 of 1952 and publishod in Ceylon GovernmentGazette (Extraordinary) No. 14,199 of 15th Octobor, 1904.
WI JAY ATI LAKE, J.—Hamza Naina v. Inspector of Police ,Gampaha16"
The learned Magistrate has found the accused guilty and sentencedhim to a term of 4 weeks’ rigorous imprisonment and to pay a fine ofRs. 500/- in dofault G weeks’ rigorous imprisonment. Mr. Jayafileke,learned counsel for the appellant, has reforred mo to the GovernmentGazelle mentioned in the chargo and ho submits that according to theschedule this Prico Order applios to the Colombo District excluding theMunicipal limits of Colombo and thoroforotho prosecution had to establishthat this ofFonco was committed within tho Colombo District and outsidothe Municipal limits of Colombo the beef stall in question being at No. 3Yakkala on tho Gampaha-Kirindiwela Road. Ho submits that theprosecution has failed to prove that tho place whero tho beef was allegedto have been sold is within tho Colombo district. When tho sub-inspectorof police gave evidenco he was cross-examined particularly in regard tothis point and in answer to tho quostion as to the limits of the ColomboDistrict he stated that tho Colombo Municipality area extends up to thePeli3'agoda bridge, and Colombo Municipality ends at tho Peh*3?agodabridgo. Then when ho was questioned again as to tho limits of thoColombo District ho confessed that ho could not say what they wore andho confirmed that ho could not givo the areas which are incorporated intho Colombo District. Tho learned Magistrate in his reasons has consi-dered this objection taken b}' the defenco that tho j>rosecution has failedto prove that the placo of offence was within the Colombo District and hehas commented that in regard to this submission ho has to observe that" there cannot be any doubt that No. 3 Yakkala where the accused’s bcofstall is situated is not a place within tho limits of tho Colombo Munici-pality In regard to this particular observation there is the evidenceof the Inspector of Police. Tho Magistrate, however, observes that thodetection had been made b}r tho Gampaha police in an area within thojurisdiction of that polieo station and ho thinks that ho is entitled topresume “ that administratively Gampaha comes within the jurisdictionof tho Government Agent, Colombo District ”. It may bo mentionedthat tho prosecution has failed to produce in evidence a map of thoColombo District showing the Administrative divisions or tho evidence ofanyono who could authoritatively speak to tho limits of the ColomboDistrict. Tho Administrative Districts Act, Cbaptor 392, sets out tholimits of tho Administrative Districts. Section 2 (2) sots out that thelimits of each Administrativo District specified in column 1 of the first-schedule to this Act shall, subject to any alterations made therein, underSection 3, be those specified in tho corresponding entry in column II of
that schedule. It is not at all clear how the learned Magistrate presumed
*
that this particular place No. 3 Yakkala camo within the jurisdiction ofthe Colombo District without a precise scrutiny of the divisions as sot outin theso two columns. My attention has been dram by Crown Counselto Section 57 of the Evidenco Ordinance and he submits that Courtscan take judicial notice of facts othor than those mentioned in thatSection. He relies on the principle sot out in the case of Bogstra v. Ctcslo-dian of Enemy Properly J. He has also drawn my attention to the cases
1 {1943) 44 N. L. R. 272 ; 26 C. L< W. 5.
168
WIJAYATILAKJ3, J.—Hamza Naina v. Inspector of Police, Qampaha
of Galakiliyawa v. Inspector Joseph 1 and Menon v. Lantine a and hosubmits that the Magistrate is entitled to make use of his personalobservations and arrive at cortain conclusions. Theroforo in the instantcaso ho was ontitled to presume that this particular place fell •within thoColombo District as he was tho Magistrate functioning at Gampaha.However, it may bo noted that the Judicial Districts of Coylon withwhich a Magistrate may be familiar do not correspond to the Adminis-trative Districts of Cejdon. In this case tho Police Inspector who shouldhavo been more familiar with the area, has himself confessed that ho wasnot aware of the limits of the Colombo District.
Mr. Jayatiloke has referred me to a recont judgment of de Ivrotser, J.in Mendis v. Jayawardene S.C. 543/68 M.C. Avissawella 80S38 S.C.minutos of 23.10.68 which has dealt with a similar question. With greatrespect I am in agreement with the judgment of my brothor do Krotsor, J.and tho prineix>lo set out by him would be applicable to the facts beforemo the only evidence being that the beef stall is at No. 3 Yakkala on theGampaha-Kirindiwela Road and I would uphold the objection raised bycounsel for tho accused that tho Magistrate was not justified in presumingthat this stall is within tho Colombo District, on tho facts proved in thiscase. Perhaps, if the evidence was that the stall in question is situatedwithin close proximity to the Municipal limits of Colombo or within well. defined and "well known physical boundaries the presumption mighthave been justified but in the instant case it would be quito unsafe tobase a conviction on a rather tonuous presumption of the Magistrate.
I would accordingly quash the conviction and acquit the accused.
Conviction quashed.
1 (1366) 69 N. L. R. 152.
* (1941) 43 N. L. R. 34.