JAYETILEKE J.—Sinniah and Trincomalee Police.
1943Present: Jayetileke J.
SINNIAH, Appellant, and TRINCOMALEE POLICE, Respondent.235—M. C. Trincomalee, 5,505.
Defence (Miscellaneous) Regulations 14 (1) (f)-—Attempt to obtain informationrelating to the conveyance of secret despatches—Defence of accused thatthe act was not likely to prejudice defence of Island or the efficient pro-secution of the war•—Failure of Magistrate to apply the proviso to theregulation to the defence.
Where the accused was charged with attempting to obtain informationrelating to the conveyance of secret despatches which would or might bedirectly or indirectly useful to the enemy in breach of Regulation14 (1) (f) of the Miscellaneous. Regulations and where the defence wasthat the questions put by the accused were not likely to prejudice thedefence of the Island or the efficient prosecution of the war,—
Held, that the failure of the Magistrate to apply the proviso to theregulation to, the defence of the accused was a misdirection, which vitiatedthe conviction.
^^PPEAL from a conviction by the Magistrate of Trincomalee.
E. F. N. Gratiaen, for accused, appellant.
E. H. T. Gunasekera, C.C., for Crown, respondent.'
Cur. adv. vult.
June 22, 1943. Jayetileke J.—’
In this case the accused was charged with attempting to obtain inform-ation relating to the conveyance of secret despatches which. would ormight be directly or indirectly useful to the enemy in breach of Regulation14 (1) (f) of the Defence (Miscellaneous) Regulations. He was convictedand sentenced to undergo six weeks’ simple imprisonment. ,
The object of the regulation^, according to the marginal note, to“safeguard information”.. The regulation does not involve thp intent,to assist the enemy and is clearly of the widest possible nature! Thereare, however, certain safeguards in the proviso that it “ shall not applyto anything done by any servant of His Majesty as a public servant actingin the course of his duty as such” and “a person shall not l^e guilty
502JAYETILEKE J.—Sinniah and Trincomalee Police.
of an offence against this regulation in respect of anything done by him if heproves that the doing of that thing was not likely to prejudice the defenceof the Island or the efficient prosecution of the war ”,
The prosecution arose out of a conversation between the accused andGunner Jenkyn of the Royal Artillery whilst travelling by train from'Colombo to Trincomalee. The accused met Jenkyn for the first timeon the day in question in a railway carriage at the Fort Railway Station.He invited Jenkyn to have a drink with him at the Refreshment Room.Jenkyn accepted the invitation and went with the accused leaving hissecret despatches with Lance-Corporal Jayesinghe of the CeylonEngineers. They had a glass of gin each and returned to the compartment.
At Maradana the accused bought two bottles of beer which he sharedwith Jenkyn and two others who were in the same compartment. Thenin the course of conversation he asked Jenkyn whether he was carryingdespatches for the Army or the Navy, where he dropped and picked updespatches on the line, and whether he was returning to Colombo the nextday.
The present charge is in respect of these questions. There can belittle doubt that the information which the accused sought would ormight be directly or indirectly useful to the enemy.
The defence was that the questions were not likely to prejudice thedefence of the Island or the efficient prosecution of the war. Mr. Krelt-sheim, the senior technical assistant at the Colombo Observatory, saidthat the accused was one of the trusted officers in his Department andthat he was in charge of the Observatory at Trincomalee. His work wasof. a confidential nature and from time to time he had to send weatherreports to the Military. This evidence was obviously led to prove thatthe accused was not likely to disclose confidential information to anyonemuch less to the enemy.
The learned Magistrate has not dealt with this evidence. He seemsto have misunderstood the defence, for he says in his judgment:“ I
can see no substance in Counsel’s contention that even if the accuseddid ask these things he is protected by proviso 3 of section 14 (1). Theaccused was not asking these questions in the course of his duty. ”
This is a serious misdirection which vitiates the conviction. LearnedCrown Counsel very frankly stated that he could not support the convic-tion but he urged that as there is no finding that the accused’s actionwas not likely to prejudice the defence of the Island or the efficientprosecution of the war there should be a retrial.
I have given my anxious consideration to this question and havecome to the conclusion that, having regard to the responsible positionheld by the accused in the Observatory and the opinion still held by theHead of his Department as to his loyalty and integrity as will appearfrom the certificate marked A and annexed to the affidavit which was'produced before me at the hearing of the appeal, it is unlikely that theaccused would have conveyed to the enemy any information which hemay have received from Jenkyn. The accused is thus protected by theproviso to Regulation 14.
I would accordingly set- aside the conviction and sentence and acquitthe accused.,