105-NLR-NLR-V-24-POLICE-SERGEANT-v.-MUTTIAH.pdf
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1022.
Present: De Sampayo J.POLICE SERGEANT v. MUTTIAH.
580—P. C. Anuradhapura, 1,746.
Game Protection Ordinance, No. 1 of 1909—Possession of flesh ofindigenous deer.
Provisions of section 19 of Ordinance No. 1 of 1909 apply toanimals not indigenous to Ceylon. The possession during theclose season of the flesh of indigenous deer is not an offence tindersection 19.
^pHE facts are set out in the judgment.
J.Joseph, for accused, appellant.
November 9, 1922. De Sampayo J.—
The charge against the accused in this case was that on September13 last he was found during the close season to be in possession ofthe flesh of a beast, to wit, deer, in breach of section 19 (3) of theOrdinance No. 1 of 1909. He was convicted, and he appeals on apoint of construction. The evidence was that the close season isfrom June 1 to October 31, and consequently the accused's possessionof flesh was during the close season. The prosecutor was a constablewho said that he searched the accused's house on the day in question,and found about 30 lbs. of dried meat in a gunny bag, and hefurther swore that it was deer flesh, as he had had some himselfbefore. The ground of appeal is that under the provision in questionthe Ordinance aims at possession of flesh not of indigenous beasts,but of foreign beasts, which are specified in schedule HI. of theOrdinance, and I think the contention on behalf of the accused isright. The group of sections included in Part III. of the Ordinance,of which section 19 is one, appear to have reference to birds, beasts,and fishes which are not indigenous to Ceylon. The whole part isheaded “ birds, beasts, and fishes not indigenous to Ceylon,” andon an examination of schedule HI., to which section 19 refers, it isclear that all the birds, beasts, and fishes enumerated there are ofa foreign variety. For instance, under the head “ birds ” wehave pheasants, English partridge, French partridge ; and underthe head “ beasts ” are roe deer, fallow deer, and Englishhare. It appears to me that, where some species of animals are
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found, both in Ceylon and elsewhere, the word “ bird or beast ” isqualified by suoh expression as English,' Frenoh, &c.f clearly^iatingniahing the animal’s flesh of which it is an offence to possess.This point was submitted to the Police Magistrate, but he remarkedthat in his opinion that the expression “ deer ” was meant by theframers of the Ordinance to apply to all deer whatever found inCeylon, but I think the Police Magistrate was wrong here. Theevidence of the constable fell far short of proof that the flesh found inthe possession of the accused was the flesh of a beast not indigenousto Ceylon, because there are indigenous varieties of deer in Ceylon,and the further evidence given by the constable when he said thathe knew it to be deer, beoause he had eaten some before, shows thatall the time he was referring to the flesh of the ordinary deer foundin the forests of Ceylon. I think the prosecution failed to establishwhat was necessary under the section under which the charge was■framed.
1928.
Do SampavoJ.
PoliceSergeantv. Muttiah
The conviction is therefore set aside.
Set aside.