107-NLR-NLR-V-18-RATNAYAKE-v.-WEERARATNE.pdf
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Present: De Sampayo A.J.
RATNAYAKE u. WEERARATNE.
62—P.C. Batnapura, 26,052.
Police Ordinance, No. 16 of 1665, s. 96—Is dels a '* drum **?—Beatingtom-tom xoithout a license—Is it necessary to prove that the reposeof the inhabitants was disturbedt
A dola ■ is not a *' dram ” within the moaning of section 90 ofthe Police Ordinance, No. 16 of 1865.
** It seems to me that the Ordinance .contemplates the aggravat-ing and ear-splitting noise caused by the beating of tom-toms anddrams.* *
"The Ordinance should be applied with some degree of commonsense.*1.
In a charge under section 90 of the Police Ordinance for beatingdrams without obtaining a license, it is not necessary to provethat the repose of any person has been disturbed,
T
HIS was an appeal from an acquittal! with the sanction of theAttorney-General. Accused was charged, under section 90
of Ordinance No. 16 of 1865, with having caused tom-tom (i.e., dola,or drum and fiddle) to be beaten without obtaining a license. TheMagistrate acquitted the accused, as there was no evidence .to provethat the repose of any person was disturbed. The Attorney-Generalappealed.
V. Grenier, for the appellant.
No appearance for the respondent.
1915.
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IMS. February 12°, 1015. Db Sampayo A.J.—«jR&nayakeThe complaint made to the Court by the Police was that the
doused caused tom-toms to be beaten ^without obtaining a license,in contravention of section 90 of Ordinance No. 16 of 1865. The) Police bad no evidence to prove that the repose of any person hadbeen disturbed by the music on the night in question, and as theMagistrate considered that that was a necessary ingredient of the,offence the accused was acquitted* This appeal is taken by theSolicitor-General.
. The Magistrate is mistaken ini his view of the law. 0 See Karuna-ratne v. Bapiel1 and the Full Bench decision therein cited. Thequestion still remains whether the Ordinance aims at such use, ofmusic as in this case. The complaint itself explains what it meantby tom-toms, thus: “ t.e., dola, or drum and fiddle. A dola is nodoubt a kind of drum, but it is not beaten with sticks, as <a tom-tom or an ordinary drum is. In fact it is not beaten at all, butis played upon gently with the fingers of the hand- I hardlythink that the accused can be said to have * beaten '* a drumin the sense of the Ordinance. It seems .to me that the Ordinance*contemplates the aggravating and ear-splitting noise caused bythe beating of tom-toms and drums. The dola is subdued in tone,and when played by a person who knows anything about it, isnot at all disagreeable. It usually goes with the fiddle, as it didin this instance, and is a highly appreciated musical instrument inan Eastern orchestra. On this occasion .the dola and fiddle wereplayed at the Central Hotel at Batnapura, presumably just as morerefined music is played in bigger hotels. The human voice naturallyjoins in, though if the music were to get upon the nerves of any .one the voice would be at fault, and not the dola. The time wasnot extraordinary either; it was between 9 p.m. and 11 p.m. Noone complained, and but for .the officious interference of the constablewho wanted the music to be stopped there was nothing serious tocomplain of. In any case the matter was too trivial to be broughtinto Court, and I think the acquittal of the accused does nobodyany harm or injustice. If a license were required .every time adola n played at a social function at a private house or hotel, thepleasures of life would be irksome indeed. The fact is that theOrdinance should be applied with some degree of common sense.
I suppose the Solicitor-General has taken this appeal in order toset aright the Magistrate's interpretation of the law. That hasbeen done by my ruling, that the prosecution was not bound toprove that the repose of the inhabitants was disturbed, and I thinkthat, the law being thus vindicated, the case may be left there.The appeal is dismissed.
e •
Appeal dismissed.
i l N. L. R. 380.