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Present : De Sampayo A.J.
ROBERTSON v. IDROOS et al.
321-3—P. C. Ratncupura, 18,576.
Prosecution for . seducing and harbouring coolies—Names '■ of coolies notborne on the estate register—Ordinance No. 11 of 1865, s. 19—Ordinance No. 13 of 1889, s. 8—Ordinance No. 9 of 1909.
A prosecution under section 19 of Ordinance No. 11 of -1865 canbe maintained without proof of the fact that the names of thecoolies seduced or harboured were borne on an ' estate register.
Neither Ordinance No. 13 of 1889 nor Ordinance No. 9 of 1999affects tbs definition of “ servant ” for the purposes of the Ordi-nance No. 11 of 18C5.
fjl HE facts are set, out in the judgment.
A. St. V. Jayewardene, for the accused, appellants.—There is noproof that the names of the coolies said to have been seduced orharboured were borne on the estate register. Ordinance No. 9 of1909, which amends Ordinance No. 13 of 1889, enacts: “ Labourer ”means any labourer- and kangany (commonly known as Indian
» U909) 1 Cur. L. B. 163.
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coolies) whose name is borne on an estate register. It was held byWood Benton J. in 708—P. C. Kalutara, 18,522,* that for a con-viction under section 19 of Ordinance No. 11 of 1865 there ought tobe proof of the fact that the name of the cool; seduced was borneon the estate register.
In an action to recover the amount due on a tundu the plaintiff'saction was dismissed, as the coolies were not on the estate registerof the transferring estate (see Wiilia v. Higgina1). The ratio decidendiof that case applies to a criminal prosecution of this nature.
No appearance for the respondent.
* Baton, for appellant.
A. St. V. Jay ewardene, for respondent.
Cur. adv. vult.
November 13, 1911. Wood Bbnton J.—
The accused-appellant was charged under section 19 of Ordinance' No. 11 of1865 in the Police Court of Kalutara with having seduced two coolies. ThePolice Magistrate convicted him and sentenced him to three -months' rigorousimprisonment. The only point .taken in the petition of appeal is that there isno direct evidence in the case, except that of one of the coolies, who is allegedto Khave been seduced, and that that evidence, uncorroborated by any other,is insufficient to sustain a charge under .section 19 of Ordinance No. 11 of1865. At the argument before me a few days ago, however, Mr. Bawa, theappellant's counsel, contended that the conviction was bad in law on theevidence as it stands, inasmuch as the superintendent of the estate fromwhich the coolies are said to have been seduced, had not proved it to be anestate of which ten acres or more than ten acres were under cultivation, andhad not shown that the two coolies alleged to have .been seduced were on theestate register. There is. clear evidence that the coolies in question areIndian coolies. Mr. A. St. V. Jayewardene, the respondent’s counsel, arguedthat even if there was no affirmative proof that the estate was one to whichthe Labour Ordinances, Nos. 13 of 1889 and 9 of 1909, applied, there wasevidence showing that the coolies were “ servants ” within the meaning ofsection 1 of Ordinance No. 11 of 1865, since the superintendent of the estatespoke of them as having worked on the estate. It is quite clear that bothsides at the trial regarded the case as one to be governed by the provisions ofOrdinance No. 13 of 1889, and there is no positive statement to the effect thatthe coolies were employed in agricultural work, so as to. bring the case undersection 1 of Ordinance No. 11 of 1865, irrespective of the later enactments.It appears to me on the evidence that the conviction was bad. But I am notprepared to direct the acquittal of the accused-appellant. I set aside theconviction and the sentence, and send the case back to the Police Court inorder to give the prosecutionan opportunityof provingaffirmatively,in the
first place, that the estate inquestion isoneof Which ten acres or more are
actually cultivated, and, in thenext place,thatthe namesof the cooliesalleged
to have been seduced are onthe estateregister, withinthe meaningof-.the
provisions of Ordinance No. 9 of 1909. If such proof is not forthcoming,the conviction and sentence will stand finally set aside, and the accused-appellant will be acquitted. If, however, affirmative proof on -the two pointswhich I have indicated is produced, it will be open to the Police Magistrateto adjudicate upon the case on the evidence as it now stands.
Conviction set aside and case sent back.
1 (2911) 14 N. L. B. 131.
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May 17, 1912. De Sampayo A.J.—
The first accused was charged under section 19 of Ordinance No. 11of 1865 with having seduced two cooly women from the service oftheir employer, Mr. E. A. Bobertson, Assistant Superintendent incharge of Nivitigala estate, and the second and third, accused underthe same section with having harboured those coolies after they hadbeen seduced from service. They have appealed from a convictionon the above charges.
It was submitted in appeal on their behalf that the convictionwas bad, inasmuch as it had not been proved that the names of thecooly women were borne on the estate register provided to be keptby Ordinance No. 9 of 1909. This Ordinance is an amendment incertain respects of the Ordinance No. 13 of 1889 relating to Indiancoolies, and therein called the principal Ordinance. The latterOrdinance (section 3) defines “ labourer ” for its own purposes as“ every labourer and kangany (commonly known as ‘ Indian coolies ’ )employed on an estate in other than domestic labour, ” and theOrdinance No. 9 of 1909 adds a further requisite to the definitionin section 3 of the principal Ordinance, viz., that the name of thelabourer should be borne on the estate register. I do not thinkthat either of these Ordinances affects the definition of “ servant ”for the purposes of the Ordinance No. 11 of 1865, and in my opiniona prosecution under section 19 of this Ordinance can be maintainedwithout proof of the fact that the names of the coolies seduced orharboured were borne on an estate register. Mr. Jayewardene,. forthe appellants, relied on the judgment of Wood Benton J. in P. C.
. Kalutara, 18,522, in which, in a case of seduction under section19 of Ordinance No. 11 of 1865, my learned brother set aside theconviction and sent the case back for proof that the names of thecoolies seduced were, borne on the estate register. But he based hisorder on the special circumstances of that case, for he said “it isquite clear that both sides at the trial regarded the case as one to begoverned by the provisions of Ordinance No. 13 of 1889, and there isno positive statement to the effect that the coolies were employed inagricultural work, so as to bring the case under section 1 of OrdinanceNo. 11 of 1865, irrespective of the later enactments.” In this case,however, it is sufficiently proved by the evidence of Mr. Bobertsonthat the two women were engaged in agricultural work on Nivitigalaestate, and the objection itself is only taken for the first time inappeal.
I think the conviction is right, and the appeals are thereforedismissed.
ROBERTSON v. IDROOS et al