WINDHAM J.—Senanaydka v. Qoonesekere.
SENANAYAKA, Appeliant and GOONASEKERE, Respondent.
S. C. 1,332—M. C. Colombo South, 11,383, Z>. R.
Defence Regulations —Failing to place paddy at disposal of headman—Elements ofcharge—Proof of possession—Burden of proof—Regulation 52—MiscellaneousRegulations.
Where a person is charged with having failed to place at the disposal of thevillage headman paddy in his possession or under his control after havingbeen served with an order requisitioning the same under regulation 52 of theDefence (Miscellaneous) Regulations—
Held, that it is incumbent on the prosecution to prove that he had the paddyin his possession or under his control and in the absence of such proof he cannotbe convicted.
Appeal from a judgment of the Magistrate, Colombo South.
D. Wimalaratne, for the accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
December 4, 1947. Wendham J.—
This is an appeal against the conviction of the appellant underRegulation 52 of the Defence (Miscellaneous) Regulations, for failing Ondemand to place at the disposal of the Village Headman 8 measures of
Cathirana Fernando v. Cooray & Go.
paddy in his possession or under his control after having been served withan order requisitioning the same. The main point argued in the appealwas that there was no proof that the accused had the said 8 measures ofpaddy in his possession or under his control that this element of theoffence must be proved by the prosecution was laid down in Bandara-nayalca v. Silva1. It is argued that since that case was decided, theRegulations regulating the transport of paddy published in the Govern-ment Gazette No. 9,653 of January 24, 1947, have altered the position.Those Regulations provide that no person may remove his paddy from thethreshing-floor without a permit. It is accordingly contended that,there being evidence that the accused's paddy had been removed from thethreshing-floor without a permit, the accused cannot be heard to saythat he did not temove it or that it was not in his possession or under hiscontrol. I do not think that this contention can be acceded to. It stillremains upon the prosecution to prove that he had it in his possession orunder his control. The accused, when the Village Headman went to his"house and handed over to him the Requisition Order, stated that, “ hehad paddy ”. The statement was admissible in evidence, it is true, forit was not a confession because it did net admit that the accused hadalready committed an offence. The offence in question could not becommitted until the accused refused to deliver the paddy, and he had notyet refused when he made the statement that he had paddy. But thisstatement was not an admission that he had the 8 measures of paddy towhich the Requisition Order referred. It was merely an admission thathe had some unstated quantity of paddy. It lay upon the prosecutionto prove that he had the 8 measures of paddy in his posseesion or underhis control, and there was no other evidence to that effect. Thus theprosecution failed to prove an essential element in the charge, andaccordingly the learned Magistrate erred in convicting the accused. Theappeal must therefore be allowed and the judgment set aside. Theaccused is acquitted and discharged.