042-NLR-NLR-V-64-R.LOVELL-Range-Forest-Officer-Appellant-and-T.-SINNADURAI-and-another-Re.pdf
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T. S. FERNANDO, J.—Lovell v. Sinnadurai
1962Present: T. S. Fernando, J.
R.LOVELL (Range Forest Officer), Appellant, and
T.SINNADURAI and another, Respondents
S.C. 103 of 1961—M. C. Chavalcachcheri, 13,741
Forest officer—Authority to prosecute in Magistrate's Court—Transit of forest produce—
Validity of Regulation 5—Forest Ordinance, ss. 24 (1) (b), 24 (2), 25, 37—40—
Interpretation Ordinance, s. 17 (1) (c).
A person who is a forest officer within the meaning of tho Forest Ordinanceand a public officer within the moaning of tho Criminal Procedure Code isontitled to enter a x>rosecution under tho Forost Ordinance and to conductit in tho Magistrate’s Court. It cannot bo contondod that ho “ cannot appearin Court except through the Government Agent or tho Assistant GovornmentAgont as contemplated in sections 37, 38 and 39 of tho Forost Ordinance.”
Regulation 5 (1) prohibiting the removal of timber, without a pass, withinor boyond tho limits of any specified area is not id Ira vires of tho provisions ofsection 24 (1) of the Forest Ordinance. The matters described in clause (b)of section 24 (1) aro only illustrative of but do not sot limitations on tho powersof the Minister to make regulations respecting tho transit of all forest produce.
When Regulation 5 (1) prohibited removal of timber within or beyond aspecified local area it in offoct prohibited a moving out of tho timbor from thospecified local area to another boyond it. It follows, therefore, that in orderto succeed in a prosecution for a contravention of Regulation 5 (1) tho prosecutormust ostablisli inter alia that tho timbor in question camo from tho specifiedlocal area itself.
Appeal from a judgment of the Magistrate’s Court, Chavakachcheri.
A. G. Alles, Deputy Solicitor-General, with V. B. A. Pullenayegumand E. D. Wihramanayake, Crown Counsel, for the complainant-appellant.
No appearance for the accused-respondents.
Colvin R. de Silva, with M. L. de Silva, as amicus curiae, at the requestof Court.
Cur. adv. vult.
June 5, 1962. T. S. Fernando, J.—
When this appeal came on for hearing there was no appearance for theaccused-respondents. I reserved order after I had heard the learnedDeputy Solicitor-General in support of the appeal hut, deeming itnecessary that I should hear argument contra, I requested that counsel’sassistance be furnished to me, and I must here express my indebtednessto Mr. Colvin R. de Silva for the assistance he has rendered in thismatter.
T. S. FERNANDO, J.—Lovell v. Sinnadurai235
The charge against the two accused persons as framed in theMagistrate’s Court was as follows :—
“ That they did, at Elephant Pass on 3rd August 1960, after sunsetand before sunrise, within the limits of an area specified by theConservator of Forests by notification published in GovernmentGazette No. 10,743 of December 10, 1954, and amended by notifi-cation published in Government Gazette No. 10,771 of March 4, 1955,for the purposes of section 24(1) (b) of the Forest Ordinance as anarea within or beyond the limits of which timber of any speciesspecified in that notification may not be removed without a permitor pass, to wit, the Jaffna District, remove in lorry No. CN G966without a permit or pass issued by an authorised officer one paluand nine satin wood logs valued at Rs. 385/05, in breach of Regulation5 (1) of the Regulations relating to the transit of forest producepublished in Government Gazette No. S,057 of June 8, 1934, asamended by the Regulations, made by the Minister of Lands andLand Development by virtue of powers vested in him under section24 of the Forest Ordinance as modified by the proclamation publishedin Government Gazette Extraordinary No. 9,773 of September 24,1947, published in Government Gazette No. 10,424 of July 11, 1952,and amended by notification in Government Gazette No. 10,743 ofDecember 10, 1954, and that they did thereby commit an offence. punishable under the second proviso' to section 25 of the ForestOrdinance read with section 40 of the same Ordinance
The charge reproduced above is undoubtedly unwieldy and verbosein the extreme but, having regard to the requirements of the CriminalProcedure Code and the practice relating to the framing of charges incriminal cases that has developed in this country, it is not uncommonto come across charges as cumbersome as this, particularly in the caseof offences under the Forest Ordinance and the Shop Act.
The learned Magistrate has found on the evidence led before himat the trial that the accused did transport by lorry the ten logs of timberspecified in the charge and that they were detected while doing so bythe complainant who is a forest officer within the meaning of the ForestOrdinance. They had neither a permit nor a pass of any kind in respectof such transporting. The Magistrate was satisfied that the officerauthorised by law to issue a permit or pass was the Divisional RevenueOfficer of Pachchilapallai. He however acquitted the accused becausehe came to the conclusion (1) that the regulation alleged to have beencontravened by the accused was vJ,tra vires the Forest Ordinance and (2)the complainant had no authority to prosecute the accused in theMagistrate’s Court.
In regard to the second reason given by the learned Magistrate tosupport the order he made, viz. the lack of authority in the complainantto enter a prosecution, both Mr. Alles and Mr. de Silva were agreedthat that reason was invalid. Indeed, the case of Lushington v. Mohamadu1
1 {1913) 16 N. L. R. 366.
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T. S. FERNANDO, J.—Lovell v. Sinnadurai
which was cited also to the Magistrate is conclusive on the point. SaidPereira J. in that case :—“ But assuming property has been seized,I think the procedure under section 39 (of the Forest Ordinance) ismerely cumulative : it does not disjdace the procedure of the Code.”The complainant, being a forest officer within tbe meaning of tbe ForestOrdinance and a public officer within the meaning of the CriminalProcedure Code, was in every way entitled to enter prosecution andto conduct it in the Magistrate’s Court. The learned Magistrate wasin error, if I may say so with respect, when he stated that “ an officerof the Forest Department cannot appear in court except through theGovernment Agent or the Assistant Government Agent as contemplatedin sections 37, 38 and 39 of the Forest Ordinance.”
The first reason given by the learned Magistrate was also canvassedby Mr. Alles who contended that the matters described in clause (6)of section 24(1) of the Forest Ordinance as being some of tbe mattersin respect of which regulations may be made by tbe Minister are onlyillustrative of but do not determine the powers of the Minister.
Section 24 (1) of the Ordinance declares that the Minister may makeregulations respecting the transit of all forest produce by land or water.While the expression “ forest produce ” has been defined in the inter-pretation section 78, section 24(2) declares that in section 24 the terms“ forest produce ” and “ timber ” shall, unless the context otherwiserequires, include timber cut in any land or property, whether the propertyof the Crown or any private individual. The Minister, therefore, hasbeen vested with power to make regulations respecting the transit oftimber, whether the property of the Crown or any private individual.Acting under the power granted to him by section 24, the Ministerhas made the regulation—regulation 5 published in Gazette 10,743 ofDecember 10, 1954—reproduced below :—
“5(1). Within or beyond the limits of any area specified by theConservator of Forests by notification in the Gazette for the purposesof section 24 (1) (6) of the Forest Ordinance as an area within or beyondthe limits of which timber of any species specified in that notificationmay not be removed without a pass, no person shall remove or causeto be removed any such timber without a pass issued by the Conser-vator of Forests, or other forest officer or person authorised in thatbehalf by the Conservator of Forests.
. No person shall transport timber of auy species specified in anotification under paragraph (1) from an area other than an areaspecified in such notification without a pass issued by the Conservatorof Forests, or other forest officer, or the nearest authorised headmanstationed within the first-mentioned area.
. For the purposes of paragraph (2), the expression “ authorisedheadman ” means any headman duly authorised by the GovernmentAgent or the Assistant Government Agent to issue passes under thatparagraph.”
T. S. FERNANDO, J.—Lovell v. Sinnadurai
237
The accused were found, within the limits of an area specified by theConservator of Forests by notification as contemplated in clause (6)of section 24 (1), i.e., within Jaffna District, transporting timber of speciesprohibited by notification from being removed without a pass. Thelearned Magistrate concluded that regulation 5 was ultra vires as, in hisopinion, it was not competent for the Minister to make a regulation inderogation of the statute—(section 24 (1) (6) ).
Citing section 17 (1) (c) of the Interpretation Ordinance which providesthat no rule made under the authority of an enactment shall beinconsistent with the provisions of any enactment, the Magistrateheld that, where the statute provides that regulations may be madeprohibiting removal of timber without a pass from the landholder fromwhose land it was brought or from an officer duly authorised to issue apass, when the regulation prohibited removal without a pass issued bythe Conservator of Forests or other forest officer or person authorisedin that behalf by the Conservator of Forests, the regulation was incon-sistent with the provisions of the ordinance under which it purports tohave been made, and was therefore ultra vires. The Deputy Splicitor-General has argued that the learned Magistrate has here assumed thatthe only power the legislature has conferred on the Minister is the powerdescribed in paragraph (&) of section 24 (1) of the Ordinance and hasoverlooked the existence of the power conferred without qualificationin section 24 (1) itself by the following words :—
“ The Minister may make regulations respecting the transit of allforest produce by land or water.”
He argued that the regulation in question has been made under the powerreferred to immediately above which sets no limitation on the Ministerin regard to the nature of the regulations he may make for the purposeindicated in the opening sentence of that section. The plenitude ofthe power so conferred on the Minister is nowise affected, in my opinion,by the circumstance that the legislature has instanced some of thematters that may form the subject of 'regulations to be made under thesection in question.
Mr. de Silva, while not conceding to the prosecution the point as towhether the regulation is ultra vires, raised a number of arguments againstthe conviction, the most important of which was that, even if the regu-lation 5 (1) was intra vires, it penalised only a removal from a specifiedlocal area and not a moving from one place to another within that speci-fied local area. As I find myself in agreement with him as to the meaningof regulation 5 (1) so contended for, I shall set down shortly my reasonstherefor.
If, as the prosecution contends, regulation 5 (1) prohibits the movingor transporting without a pass of specified timber from one place toanother within the specified local area, having regard to the meaning of“timber” in section 24 (2) it really means that no person may move
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without a pass such timber, although belonging to him as his privateproperty, from one part of his land or estate to another part of the sameland or estate within the specified local area. A regulation producing ,this result is obviously most unreasonable and I do not think a courtof law should pronounce in favour of an interpretation leading to such aresult unless for some compelling reason it is driven to do so." Themeaning which the prosecution seeks to place on this regulation 5 (1)would involve placing on the word “ remove ” occurring therein themeaning of moving in the sense of a mere change of position. Construingwhat is in substance a penal provision, the Court should, in my opinion,incline towards an interpretation which not only preserves the ordinarymeaning of the word “ remove ” (which is to take away from one placeto another beyond it) but also renders immune from penalty an other-wise ordinary dealing with one’s own private property. It seems to methat when regulation 5 (1) prohibited removal within or beyond the speci-fied local area it in effect prohibited a moving out of the timber from thespecified local area to another beyond it. It follows, therefore, thatin order to succeed in a prosecution for a contravention of regulation5 (1) the prosecutor must establish that the timber in question came fromthe specified local area itself. Proof on this point was not offered andthe prosecution in my opinion was therefore bound to fail.. Mr. deSilva also contended that there was no removal to a. place beyond thespecified local area as the seizure took place at Elephant Pass,- withinthe Jaffna District, and on this point too the prosecution failed toestablish the charge.
If one examines regulation 5 (2) it will be seen that to maintain success-fully a charge in respect of transport of timber from an area other thana specified local area into or through a specified local area without a passthe prosecution must prove that the timber came from an area otherthan a specified local area. Mr. Alles and Mr. de Silva were both agreedon this point. If that be so, there does not appear to be anything un-reasonable in expecting from the prosecution on a charge of a contra-vention of regulation 5 (1) proof that the timber had its origin in thespecified local area.
I might add that Mr. de Silva contended that if the expression “ withinor beyond ” was capable of the meaning which the prosecution hassought in this case to place upon it, then the charge here framed is opento attack on the ground of duplicity. As I have already interpretedthat expression in this context to mean ,nothing more than “ from ”,and in view of the meaning indicated by me of the word “ remove ”occurring in regulation 5 (1), it is unnecessary to examine this lastcontention.
The appeal is dismissed.
Appeal dismissed.-'