SOERTSZ A.C.J.—Pillai v. Sirisena.
1945Present r Soertsz A.C.J.PILLAI, Appellant, and SIRISENA (P. S.), Respondent.
125—M. C. ChUaw, 26,955.
Prevention of Crimes Ordinance (Cap. 18), as. 5 and 6—Conviction of accused—Sentence of tu/o years’ rigorous imprisonment and two years’ Policesupervision—Validity of sentence.
Section 6 of the Prevention of Crimes Ordinance makes it a conditionprecedent to the imposition of the enhanced punishment provided for bythat section that the Magistrate should pass a sentence other thanimprisonment in respect of the offence charged.
There is nothing to prevent a Magistrate from combining the punitivepowers given to him by sections 5 and 6.
^ PPEAL from a conviction by the Magistrate of Chilaw.
Accused-appellant in person.
L. W. de Zoysa, C.C., for the Attorney-General.
October 19, 1945. Soertsz A.C.J.—
The accused-appellant was charged in the Magistrate’s Court of Chilawwith dishonestly retaining a single-barrel breech-loading gun No. A 329852,valued at Rs. 75, property belonging to Mr. E. S. L. Perera of Kaluarip-puwa, knowing or having reason to believe that the same was stolenproperty and with having thereby committed an offence punishableunder section 394 of Chapter 15 of the Legislative Enactments. Aftertrial the Magistrate convicted the accused of the offence charged and,it having been brought to his notice that the accused admitted fiveprevious convictions, sentenced the accused to two years’ rigorousimprisonment and two years ’ Police supervision. Although the Magistratedoes not state in bis order the provisions of law under which he purportedto act in passing that sentence, it seems clear that he was acting undersection 6 and section.5 of the Prevention of Crimes Ordinance, Chapter 18.But he appears to have overlooked the fact that section 6 makes it acondition precedent to the imposition of the enhanced punishmentprovided for by that section that thfe Magistrate should pass a sentenceother-than imprisonment in respect of the offence charged. So that inorder to regularize the sentence passed by the Magistrate under section 6it is necessary that it should be revised to the end that some punishment
Qnananda The.ro «. V. H. oj Madakotutea.
other than, imprisonment be imposed in respect of the offence itself.Accordingly I sentence the accused to pay a fine of Rs. 10 in respect oftide offence and X leave intact the punishment which the Magistrateinflicted under section 6 of the Prevention of Crimes Ordinance as thatwas a matter which the Legislature had left in his discretion.
The next question that arises is whether the sentence passed by theMagistrate under section 5 of the Ordinance directing the accused tosubmit to two years’ Police supervision may be legally passed. There isnothing positive in the various sections of this enactment to make itpassible for the Magistrate to pass both a sentence of Police supervision,if that may be described as a sentence, as well as the enhanced punish-ment to which a man renders himself liable under section 6 in certaincircumstances. But having regard to the fact that the proviap appendedto section 5 expressly states that the provisions of section 5 shall notapply in the case of any person sentenced to preventive detention undersection 7 of the Ordinance, it seems to follow by necessary implicationthat there is nothing to prevent a Magistrate from combining the punitivepowers given to him by the two sections $ and 6.
I would, therefore, dismiss the appeal, subject to the alteration I havemade under section 6 of the Prevention of Crimes Ordinance for thepurpose of regularizing the sentence passed by the Magistrate.
PILAI , Appellant, and SIRISENA (P. S. ) Respondent