042-NLR-NLR-V-66-R.-CORNELIS-and-another-Appellants-and-INSPECTOR-OF-POLICE-KAMBURUPITIYA-Res.pdf
Cornelia v. Inspector of Police, Kamburupiliya
185
1963Present: Herat, J.
R. CORNELIS and another, Appellants, and INSPECTOROF POLICE, KAMBURUPITIYA, Respondent
S. C. 923-924—M. C. Matara, 73567
i
Food Control Act—Section 4 (2) (i)—Order No. 184 made thereunder on January 26,1962—Charge of transporting rice without a permit—Burden of proof—EvidenceOrdinance, 8. 105.
In a prosecution for transporting rice without a permit in contravention of therelevant Order published under section 4 (1) (i) of the Food Control Act, theburden of proving that the rice was locally grown rice, as mentioned in theproviso to the Order, is upon the accused.
.A.PPEAL from a judgment of the Magistrate’s Court, Matara.
Colvin R. de Silva, -with M. L. de Silva, for accused-appellants.R. I. Obeyesekere, Crown Counsel, for Attorney-General.
186
HERAT, J.—Cornells v. Inspector of Police, Kamburupitiya
March 8, 1963. Herat, J.—
This charge relates to an offence against an Order, No. 184, publishedin Government Gazette No. 12,886 of 26.1.62, made by the Minister forFood by virtue of the powers vested in him by section 4 (1) (i) of theFood Control Act, No. 25 of 1950. The relevant parts of that Order areto the following efFect:—
“ I do by this order prohibit the transport or removal of any quantityof any rice from any one place in Ceylon to any other place in Ceylon,except under the authority of a permit issued by or on behalf of theFood Controller ….
Provided that nothing in the preceding provisions of the order shallapply—
(а)to the transport or removal of any quantity of locally grown rice ;
(б)to the transport or removal of any rice by any person on behalf
of the Government of Ceylon ;
….»
In other words, where the order has been declared to be effective, it isan offence to transport any rice without a permit from the Food Controlleror the specific officers designated in the order, provided the rice is notso far as is relevant for this case locally grown rice.
The charge against the accused-appellant was that admittedly he wasfound transporting without a permit some 3,556 measures of rice,weighing 7,113 lbs. of rice, which the prosecution alleged and describedin the charge as milchard rice.
At the trial the prosecuting officer said that he was not an expert asregards milchard rice but that he had heard what was milchard rice andthat he thought the rice was milchard rice.
Upon this evidence counsel for the accused took up the position in theCourt of first instance that the charge had not been proved.
The learned Magistrate however relied on section 105 of the EvidenceOrdinance which reads as follows :—
“ When a person is accused of any offence, the burden of provingthe existence of circumstances bringing the case within any of thegeneral exceptions in the Penal Code, or within any special exception orproviso contained in any other part cf the same Code, or in any lawdefining the offence, is upon him, and the court shall presume theabsence of such circumstances
Relying on this section, the learned Magistrate thought that it was forthe accused to prove that the rice transported came within the descriptionof locally grown rice mentioned in the proviso to the order creating theoffence in question, and as there was no explanation to that effect, hepresumed the absence of that explanation and proceeded to convictthe accused.
HE^tAT, J.—Dissanayake, v. Saravanaparanathan187
. From that order the accused has now appealed. I think the view ofthe learned Magistrate is correct, and that the burden of proving that therice was locally grown rice, as mentioned in the proviso to the order,was upon the accused-appellant.
There was no application on the part of the prosecution to proveanything more than that rice was being transported without the neces-sary permit. It was not obligatory on the prosecution to prove thatthe rice was milchard rice.
However, in the circumstances of this case, as the accused apparentlyrelied on the advice given to him by his lawyer in the court of first instanceand therefore did not give any explanation as regards the nature of therice if such an explanation was available to him, I would direct thatthe case be returned for trial to the lower court to enable the defence togive any evidence available to them to the effect that the rice falls withinthe description of locally grown rice if they so desire.
The conviction is therefore set aside pro forma and the case returnedto the court of first instance for the above mentioned purpose.
Conviction set aside pro forma.