051-NLR-NLR-V-53-SAMMIE-Appellant-and-NAGODA-POLICE-Respondent.pdf
NAGALIKCiAM J.—Smn.mir r. Nagtula Polin'*25.1
1951Present: Nagalingam JSAMMIE, Appellant, and XAGODA POLICE, Respondent
S. C. 319 with Application 319—M. C. Gallc, 1,171
Rubber Thefts Ordinance (Cap. 20). s. JO—Prosecution thereunder—Pica of guilty—Duty of Magistrate, to be satisfied personally—" Reasonably suspected ".
Where, in a prosecution under Section 1C (1) of the Rubber Thefts Ordinance,the accused pleaded guilty to the charge of possessing rubber reasonablysuspected to have been stolen—
Held, that, evtn though the accused pleaded guilty, the Magistrate was notrelieved of the duty cast upon him by section 16 (1) of the Rubber Thefts. Ordinance of satisfying himself that there vrpre reasonable grounds for sus-pecting the rubber to have been stolen having regard to all the circumstancesof the case.
Held further, that there is no requirement that a person who is suspectedof being in possession of rubber can be charged, under section 16 of the RubberThefts Ordinance, only if he has failed lo give a satisfactory explanation
A PPEAL from an order of the Magistrate’s Court, Galle.
A. IF. IF. Goonewardcne, for the accused appellant.
R.-4. Kannangara, Crown Counsel, for the Attorney-General.
Cur. ado. vult.
September 26, 1951. Nagalingam J.—
The appellant in this case has been convicted of an offence punishableunder section 19 of the Rubber Thefts Ordinance, Cap. 29 of the Legisla-tive Enactments, and has been sentenced to three -months’ rigorousimprisonment.
The Magistrate framed a charge against the appellant which reads asfollows: —
‘‘.You are hereby charged that you did within the jurisdiction ofthis Court at Unavitiya on 2.4.51 found in possession 10 lbs. scraprubber which is reasonably suspected of having been stolen and failto give a satisfactory explanation, in breach of sec. 16 (1) Ch. 29. therebycommitted an offence punishable under sec. 19 Ch. 29.
It will be noticed that the words italicized in the charge do not form-an integral part of the provisions of the Ordinance creating the offence.Thefe is no requirement under section 16 of the Ordinance that it is only-on the person who is suspected of being in possession of rubber failingto give a satisfactory explanation that he is to be charged. It maybe that that is a circumstance which a Police Officer acting under section16 (2) would take into consideration before he took proceedings under thissection; but that is far from saying that the charge itself should embodyan averment that the accused person had failed to give an account. The22 – N. L. R. Vol. – Liii
250
NAGALIXCiAM .T.—Sammie v. Nagoda Police
offence is not dependent on the proof that the accused person failed to-give a satisfactory explanation to the Police Officer. In fact an accusedperson need give no explanation to the Police Officer. On the other hand,whether with or without any explanation offered by an accused person,if the Police Officer is satisfied that the accused person is in possessionof rubber which he suspects to have been stolen, he is entitled to act byseizing the rubber and by taking the person before the Magistrate andcharging him. It will be seen from a perusal of suh-sections (1) and
of section 16 that while the Police Officer need only suspect therubber* to have been stolen, the charge against the accused person shouldbe that he is in possession of rubber that is reasonably suspected of havingbeen stolen. In other words, there is nothing which requires that thePolice Officer should “ reasonably suspect ”, while the charge shouldbe that the rubber is “ reasonably suspected ”, to have been stolen..
Does this qualification which has been introduced in regard to thesuspicion at the stage that the accused person is charged indicate that the-person who has to be satisfied that the rubber is suspected to have beenstolen is not the Police Officer but the Magistrate, and the Magistrate-must in the exercise of his judicial functions have evidence before himdisclosing the existence of facts and circumstances from which he cannot merely suspect but reasonably suspect the rubber to have been stolenbefore he can convict ? I think this is the only conclusion one can cometo on a readiug of these provisions.
When the Magistrate framed the charge in this case and embodiedin the charge the statement that the accused failed to give a satisfactoryexplanation, the Magistrate cannot have intended that no explanationsatisfactory to himself had been given, for he had not at or before thestage of framing or reading the charge called upon the accused to givean explanation. -In fact the proceedings do not disclose that any .suchprocedure was adopted by the learned Magistrate, so that the wordscan only mean that the accused person had failed to give a satisfactoryexplanation to the Police Officer, but that is entirely foreign to the chargebecause, as indicated already, when the matter comes into Court theperson who must be saitsfied that reasonable suspicion attaches to the-possession of rubber before a conviction can be entered is not the PoliceOfficer but the Magistrate, and it is immaterial whether the Police Officer-was satisfied with any explanation given by the accused person or not.
In- this case, when the accused was called upon to plead to the chargewhich was read out to him, the accused person pleaded guilty and on his-own plea he was convicted and sentenced as set out at the commencementof this judgment. It is a point worthy of note that under this Ordinance-an appeal is allowed as of right to an accused person, notwithstandingthe provisions of section 355 of the Criminal Procedure Code, therebyenabling an accused person though he may have pleaded guilty to appeal'as of right. This is certainly a very wide right conferred on an accusedperson who in comparison with many another offender may be saidnot to have committed a serious offence. And this provision gives aninsight into the workings of the mind of the Legislature and suggeststhat the Legislature required that every case under this Ordinance should
NAG ALIN GAM J.—Sammie r. N ago da Police
257
bc> subjected to surveillance by this Court as it probably had in viewthe possibility that under the Ordinance a charge could easily be broughtbut may be far more difficult to repel.
This same notion seems to underlie the requirement that even where-an accused person does not give an account to the satisfaction of the-Magistrate as to how he came by such rubber, the Magistrate must besatisfied himself that “ having regard to all the circumstances of the casethere are reasonable grounds for suspecting such rubber to have been stolenIt seems to me that the effect of this provision is that where the accusedperson can give an innocent explanation of his possession he is entitledto an acquittal though the rubber may in fact have been stolen property.But it is only where the accused has failed to satisfy the Magistrate thathis possession of the rubber was in circumstances which excluded any■mens rea attaching to him, that the Magistrate is called upon to proceedfurther to satisfy himself that there are reasonable grounds for suspectingsuch rubber to have been stolen.
It has, however, been contended by learned Crown Counsel that wherethe accused person pleads guilty the Magistrate then can be said to besatisfied that there are reasonable grounds for suspecting such rubberto have been stolen having regard, to all the circumstances. I find itdifficult to accept this contention. If the Legislature was so minded,it certainly could have said that where an accused person pleads guiltythe Magistrate is not concerned with satisfying himself that there aregrounds for believing the rubber to have been stolen. The Ordinancemakes no exception in such a case, and the Magistrate is not relievedof the duty imposed upon him by the enactment that even so he mustbe satisfied that there are reasonable grounds for suspecting such rubberto have been stolen having regard to all the circumstances.
It is important to note that while it is competent to an accused personto combat the assertion that the rubber was stolen or that the rubberis reasonably suspected to have been stolen, it is sufficient, as I said earlier,in order to secure an acquittal, if he gives an account to the satisfactionof the Magistrate as to how he came by such rubber, and that, althoughthe rubber may admittedly have been stolen. Learned Crown Counsel,however, thought that the mere possession of stolen rubber wag sufficientto establish the charge effectively against an accused person, but thisvi«w cannot be accepted.
It is also manifest from the proceedings that no opportunity wasgiven to the accused person to account for the possession of the rubberby Jjim, for when the accused person in this case was called upon to showcause why he should not be convicted he said he was guilty. The accusedperson was undefended and the Magistrate failed to explain to him thatthe law permitted him to give an explanation as to how he came by therubber as distinct from the circumstance of his having been in possessionof rubber which may be reasonably suspected to have been stolen.On this ground alone the conviction cannot be sustained.
There is the further difficulty presented in this case that the Magistratedid not have before him any evidence of facta from which it could be-
93. N. B. ©9182 (10/57)
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BASNAYAKE J.—Pananwala v. Gabriel Appuhamy
said that having regard to all the circumstances the Magistrate was satis-fied that there were reasonable grounds for suspecting the rubber to havebeen stolen. I have already rejected the contention of learned CrownCounsel that the plea of guilty tendered by the accused person constitutesa circumstance from which the learned Magistrate could have drawnan inference that the rubber could reasonably be suspected to have beenstolen. Non-observance of this provision by the learned Magistratealso vitiates the conviction.
I think I have said enough to show that in my view not merely thecharge but the entire proceedings against the accused are highly irregularand a contravention of the provisions of the Ordinance. I do not thinkin a case such as this the accused should be put to the expense of anothertrial.
I therefore set aside the conviction and acquit the accused.
Appeal allowed.