( 148 )
Present: Wood Benton J.
BAMAN v. ISMAIL.
82—P. 0. Trincomalee, 6,903.
AUowing cattle to stray on the public road—Evidence that ike animalcaused inconvenience or danger to the public—Ordinance No. 16of 1865, a. 63.
Where a person left a eow on an esplanade which was unfenced,and where the cow strayed on to the high road of its own acoord,—Held, that he was guilty of an offence under section 53 (3) ofOrdinance No. 16 of 1865.
In a conviction under this section, it is not necessary for theprosecution to lead affirmative evidence that the presence of thecow on the high road caused inconvenience or danger to the public.Sarahs v. Ponnasamy1 distinguished.'
Section 53a, enacted by Ordinance No. 17 of 1908, does notcreate an offence at all; it only provides a procedure for the purposeof enabling the police to seize and to deal with stray cattle, and thecharges recoverable from the owner of such cattle, if he comesforward to claim, them, are in the nature of fees and not of fines.The recovery of such fees is no bar to a prosecution under section53 (3) of the Ordinance No. 16 o,f 1865.
rpHE facts appear from the judgment.
H. A. Jayewardene, for the appellant.
De Saram, C.C., for the Crown.
February 21, 1913. Wood Benton J.—
This case raises rather an interesting question under the PoliceOrdinance, No. 16 of 1865. The appellant was charged in the PoliceCourt of Trincomalee under section 53 (3) of that Ordinance withhaving left his cow on the public road in such a manner as to causeinconvenience or danger to the public. The Police Magistrate has•convicted him, and has imposed a nominal penalty of Be. 1. Theappeal is, of course, on points of law. The appellant's counselcontends*, in the first place, that section 53 (3) of Ordinance No. 16Of 1865 can find no application in a case like the present, where theappellant had left his cow on an esplanade on which he was entitlediio leave it, and where the cow had strayed, as it did stray, of itsown accord on to the high road. The Police Magistrate holds on the.-facts that the place where the cow was left was unfenced, and thatthere was nothing to prevent it from straying on to the high roadif it pleased. That finding would be sufficient to bring the appellant
* (1910) 6 Bdl. 38.
( 148 )
both within the language of section 58 (8) of Ordinance No. 16 of1865 and within the mischief against which that enactment isdirected.
The next point taken on the appellant's behalf is that he hasalready been " fined ” under the provisions of section 58 a ofOrdinance No. 16 of 1865, which was enacted and added to theprincipal Ordinance by Ordinance No. 17 of 1908. If this argumentwere well founded, the appellant, having been fined under sectionSB A, could not be subsequently convicted under section 53, ofOrdinance No. 16 of 1865 by reason of the provisions of section 8of the Interpretation Ordinance, No. 21 of 1901. I agree, however,with the Police Magistrate that the new section enacted by OrdinanceNo. 17 of 1908 does not create an offence at all; it only providesprocedure for the purpose of enabling the Police to seize and todeal with stray cattle, and the charges recoverable horn the ownerof such cattle, if he comes forward—which he is in no way bound todo—to claim them, are in the nature of fees and not of fines. Ithink that that point of law must fail.
The last argument on behalf of the appellant is that there is hereno affirmative evidence that the presence of the cow on the highroad caused inconvenience or danger to the public. If those wordsin the section just referred to are to be interpreted in the sense thatthe section is inoperative until inconvenience or danger to the publichas been actually caused, and the fact that it has been .so caused isaffirmatively established in the Police Court, the enactment will bea dead letter. In the case of Sarahs v. Ponnasamy 11 held that it isnecessary, in prosecutions under section 53 (3) of Ordinance No. 16of 1865, that there should be affirmative evidence that the act orthe omission, which forms the subject of the charge, is of such anature as to cause inconvenience or danger to the public. InSarahs v. Ponnasamy 1 the appellant was a ricksha cooly. Theonly evidence against him was that he had left his ricksha on theside of the public road. There was nothing to show that, from theposition it was placed, it must necessarily be a source of incon-venience or danger to people who were making use of the road. Inthat state of the facts, I held that the appellant had committed nooffence. The circumstances here, however, are .different. We arenot dealing with a stationary object,- but with a straying animal. _At the time of its seizure it was actually on the road, and the policeconstable who arrested it said that it would have been a nuisanceto any motorist or bicyclist who was making use of the road. Thereis no evidence on the other side, and under the circumstances Ithink that this is sufficient affirmative evidence to justify the •appellant's conviction.
The appeal must be dismissed.
* (1910) 5 Bah $8.
RAMAN v. ISMAIL