S. G. de Zoysa (A.S.P., Jaffna) u. Cumarasuria.
Present: Cannon J.
S.G. DE ZOYSA (A.S.P., JAFFNA) v.
456— M. C. Jaffna, 19,190.
Lighting Restriction Order—Judicial notice—Proof of Order by Minister andof notice to Public—Defence (Miscellaneous) Regulations, No. 43.
A Court cannot take judicial notice of the fact that a blackout hasbeen ordered in a particular place. There must be evidence that ablackout had been ordered by the Minister and notified to the public asrequired by law.
11892) 2 Ch. D. S3 al 58.
CANNON J.—S. G. De Zoysa (A.S.P., Jaffna) v. CumaTasuria.
P^PPEAIj from a conviction by the Magistrate of Jaffna.
R.L. Pereira, K.C. (with him N. K. Choksy and N. Kumarasingham),for accused, appellant.
E. H. T. Gunasekera, C.C., for complainant, respondent.
Cur. adv. vult.
July 14, 1942. Cannon J.—
This is an appeal against a conviction by the Jaffna Magistrate underthe .Lighting Restriction Order, 1940. The charge was that the appellanton May 11, 1942, failed to have the light in his house shaded or obscuredin such manner as to ensure that no direct or reflected light from thebuilding was visible from any point or place outside the building, incontravention of Lighting Restriction Order, 1940, made by the Governorby virtue of the powers vested in him by Regulation 43 of the Defence(Miscellaneous) Regulations and published in paragraph 15 of theGovernment Gazette Extraordinary No. 8,628 of June 28, 1940, and inparagraph 11 of the Government Gazette Extraordinary No. 8,859 ofFebruary 5, 1942, and thereby committed an offence punishable undersection 52 of the Defence (Miscellaneous) Regulations.
The substance of the two paragraphs referred to in the charge is asfollows:—Paragraph 15 states how lighting shgll be obscured, e.g., “insuch manner as to ensure that no direct or reflected light, from thebuilding is visible from any point or place outside the building ”, whileparagraph 11 states that the scope of the order includes Jaffna.
The facts were not disputed, and Mr. Pereira, for'the appellant, admittedthat they constituted an infringement of the Lighting Restriction Order.The appeal was on the law, two main points being taken, namely, (1)that the charge was defective, (2) that it was not proved that the LightingRestriction Order was in force in Jaffna.
As regards the first ground it was agreed that the number of paragraph 11in the Gazette of February 5, 1952, was changed to No. 10 in theGazette of March 9, 1942, and that the appellant was not informed of thisalteration in the number. Mr. Pereira contended that this was such afundamental defect as to make the charge one not founded on the law.Now the paragraph had no material relevance other than to inform theappellant that the place where the light was unobscured was within thescope of the Order and, in my view, the fact that the-number of theparagraph was incorrectly stated does not vitiate the conviction.
On the second point it was conceded by Mr. Gunasekera that unlessthere was evidence by which the Magistrate could be satisfied that apartial black-out was in force at the time of the alleged offence, theconviction could not be upheld. In his . judgment, the Magistrate, says :“ By virtue of paragraph 7 of Part II. of the Lighting Restriction Order1940, referred to in Gazette No. 8,628, the Minister of Local Adminis-tration has declared the whole of the Revenue District of Jaffna (excludingthe Divisional Revenue Officer’s Division of Punakari-Tunnukai andthat part of the Divisional Revenue Officer’s Division of Pachchilapalai
Iyer v. Galboda.
Karachchi, which lies to the south of the Jaffna lagoon) to come underthe Emergency Partial Blackout from 6 p.m. on February 6, 1942, untilfurther notice. This Notification is published in the Government GazetteExtraordinary No.-*8,859 of February 5, 1942. The Emergency PartialBlackout affecting Jaffna is still in force. There is no evidence to thecontrary.” The only evidence before the Magistrate on this point wasthe. Gazette, to which he referred. It was suggested that a blackout wasbeing observed in Jaffna on the date in question and that fact wastherefore sufficiently notorious to justify the Magistrate in takingjudicial notice of it; but a condition precedent to the charge beingestablished was not that a blackout was being observed, but that it hadbeen ordered by the Minister and notified to the public of Jaffna asprovided by law. I do not think it can be assumed that such a fact wasa matter of notoriety, and it follows that, even assuming it was true, theMagistrate could not act upon it without evidence of it being specificallyadduced. The Defence (Miscellaneous) Regulations seem to havecontemplated the necessity for such specific evidence, because in sec-tion 43 (2a) a method of proof is given. It states that in such proceedings“ a certificate issued by or on behalf of the competent authority for anytown, place or area to the effect that such Order was in operation in thattown, place or area on any day or at any time or during any periodmentioned in the certificate, shqll be conclusive evidence ” of such fact.
„ In short, no evidence was adduced that a blackout was in force, andtherefore the conviction cannot be sustained.
The appeal is allowed.