SUB-INSPECTOR OF POLICE v. RAJALINGAM et al

040-NLR-NLR-V-31-SUB-INSPECTOR-OF-POLICE-v.-RAJALINGAM-et-al.pdf


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[In Revision.]
Present: Drieberg J.
SUB-INSPECTOR OF POLICE v. RAJALINGAM et alP. G. Jaffna, 4,159.
Motor car—Using private car for carrying passengers fur lure—Hardenof proof—Absence of explanation by accused—Evidence Ordinance.s. 114.
The accused, who were the owner and the driver of a motor carlicensed for privatense,were charged withemploying it for
carrying passengers for hire. It was established by the prosecutionthat on several daysthecar wasseen drivenby the chauffeur
with several personsofdifferentnationalities as passengers,
the owner himself being present on one occasion.
Held, that, in the absence of an explanation by the accused,the Court was entitled to draw the presumption that the car wasnot being used for the purpose for which it was licensed.
A
PPLICATION for revision of aconvictionby the Police
Magistrate of Jaffna.
Ramachandra-, in support.
Illangakoon, C.C., for the Crown.
July 15, 1929. Drieberg J.—
The first accused is the driver and the petitioner the owner ofa car which is licensed as a car for private use for the conveyanceof passengers. They were charged and convicted of using a carfor a purpose not authorized by its licence, i.e., carrying passengersfor hire, in breach of section 30 (1) of the Motor Car Ordinance;
They were each sentenced to pay a fine of Rs. 5 or in defaultthree day’s simple imprisonment. The case is before me on anapplication by the petitioner for revision.
These accused were originally charged with committing thisoffence on August 14, 1928. After the evidence of one witnesshad been recorded the date of the offence was altered to “ November14, 1928, and thereafter. ” The petitioner complains that he wasprejudiced by the vagueness of the charge, but the dates of theseveral offences, November 14, 15, 20, 26, and December 6. werestated by the first witness and the alteration was made on a laterdate ; the petitioner was represented by Counsel and no objectionwas taken to or time asked to meet the altered charge.
On November 14. 1928, P. S. Ratnam saw the car at 8 a.m. atTinnevelly Junction on the way from Point Pedro to Jaffna. Itwas driven by the first accused and there were five persons, whosenames were noted.
1929.
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1920.
Drieberg J.Sub-
Inspectorof Policev.
Rajalingmn
On November 15 the car was seen at 8.20 a.m. by SergeantSuppramaniam at “ Tinnevelly-XJrampurai road ” being driven bythe first accused towards Jaffna. There were six persons in thecar besides the first accused. It was seen later at AnaipanthyJunction on i.ts way to Jaffna with five persons in it ; four of thesewere in the car at 8.20 a.m. Two had left and one was a newoccupant, Samuel Sinnetamby.
On November 20 i.t was seen at 3.45 p.m. at the Kaikula roadbeing driven in the direction of Point Pedro from Jaffna withseven passengers, whose names were noted. Among them were aMoorman and a Che tty, the rest being Tamils.
On November 24 the car was seen at 4 p.m. at Puttur goingtowards Jaffna. The petitioner was in the car with the firstaccused and there were five others who were residents of villages10, 12, 14, and 16 miles away from Jaffna. Their names werenoted. The ear was seen again at NaUur returning from Jaffnawith three occupants, besides the two accused. None of themwere in the car when i.t was seen at 4 p.m.
The car was seen again on December 6 at 8 a.m. being drivenby the first accused with eight passengers in it. The movementsof the car had been under observation during all this time andon this occasion the passengers refused to give their names to the .police.
There was no evidence led for the defence, and it was arguedfor the accused that they could not be convicted unless the occupantsstated that .they paid for their conveyance.
The Police Magistrate convicted the accused in a brief judgmentwhich has been of no assistance to me.The contention of the
defence is wrong. Payment of money is only one, though themost obvious, way of proving that the car was used for carryingpassengers for hire. In “ 177, P. C. Kandy, No. 27,731 (SupremeCourt Minutes of February 19, 1929), ” a conviction of his chargewas based on this evidence—a witness said that he saw the carcoming, he raised his hand, it halted and he got in, he had no.money and no money was demanded of him ; he said he meantto pay,- but after the car had gone some way it was stopped by thepolice. . Akbar J. held that- there was such a presumption thatthe car was being used for hiring purposes as justified a convictionin the absence of an explanation by the accused.
Under section 114 of the Evidence Ordinance .the Court maypresume the existence of any fact which’ it thinks likely .to. havehappened, regard being had to the common course of .naturalevents, human conduct, and public and private business in theirrelation to the facts of the particular case. This section wasinserted to meet the objection that the subject of presumptionswas insufficiently treated in' the Ordinance and with a view to
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providing for all instances not covered by the provisions of thepreceding sections—“ Ameer Ali’s Law of Evidence, 8th edition,p. 772. ” The effect of this section coupled with the generalrepealing clauses in section 2, as stated by Sir. J. F. Stephen inintroducing the Act. was “ to make it perfectly clear that Courtsof -Justice are to use their own common sense and experience injudging of the effect of particular facts, and that they are subjectto no technical rules whatsoever.
Ameer Ali also <jnotes, as well expressing the law on this point-,the judgment in an American case. ” Where, probable proof isbrought of a state of facts tending to criminate the accused, theabsence of evidence tending to a contrary conclusion is to beconsidered, though not alone entitled to much weight, becausethe burden of proof lies on the accuser to make out the whole caseby substantive evidence. But when pretty stringent proof ofcircumstances is produced, tending .to support the charge, andit is apparent that the accused is so situated that he could offerevidence of all the facts and circumstances as they existed, andshow, if such was the truth, that the suspicious circumstancescan be accounted for consistently with his innocence and he failsto offer such proof, the natural conclusion is that the proof, ifproduced, instead of rebutting, would tend to sustain the charge.But this is to be cautiously' applied, and only in cases where it ismanifest that proofs are in the power of the accused, not accessibleto the prosecution.”—“ Ameer Ali’s Law of Evidence (8th edition),p. 784, from judgment of Chief Justice Shaw in Commonwealth v.Webster. ”
A further point is that in such cases the presumption will bedrawn more readily in proportion to the difficulty of proving thefact by positive evidence, and to the facility of disproving it orof proving facts inconsistent with it, if it really did not occur.The present case is essentially one of this nature ; proof by directevidence that the occupants paid for being taken in the car isvery difficult, and it must be remembered that if the charge istrue the occupants would themselves be guilty of abetting thecommission of the offence—section 83, Motor Car Ordinance.
I do not think the use of the car on. November 14 by itself callsfor^any explanation by the accused ; it. amounts to nothing morethan that five persons were being driven in the car.
The conduct of the accused, however, on November 15 and 24,coupled with the conduct of the first accused and the. passengerson December 6, stands on a different footing. On the 24th the carwas carrying towards Jaffna five persons who lived 10, 12. 14, and16 miles away from Jaffna ; it is a fair inference that they weretaken on the way ; they did not return, however, and at 15.30 p.m.
1929.
Daikbebg J.Stib-
I inspector
of Policev.
Pajnlingain
1929.
DfttEBBRO J.
Sub-
Inspectorof Policev.
Rajulingam
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on the same day it was 6een taking four other persons back fromJaffna. The petitioner was in the car and the first accused wasdriving.
On December 6 .the first accused was driving eight personson the road from Point Pedro to Jaffna, and they refused to givetheir names to the police.
Under section 76 of the Motor Gar Ordinance a police officerwho has reason to suspect that an offence has been committed inconnection with a motor car can require the owner to give himail information in his possession as to the name, address, description,antecedents, and whereabouts of the driver and occupants of thecar at the time of the alleged offence. It is true that the petitionerwas not in the car at the time and the police did not say that theyasked the second accused for the names of the occupants, but thefact that the law empowers the police to demand this informationfrom the owner must be kept in mind when it is considered whetherthe petitioner can claim the privilege ordinarily available to anaccused of not being obliged to give evidence against what may hemere circumstances of suspicion.
It appears to me that the obligation of explaining in answerto a charge is stronger when that explanation is one which the lawempowers a police officer to demand. In this case the petitioner,in not explaining the use of the car on December 6, by giving fullparticulars of the occupants, is withholding information which apolice officer could have required him to give.
In my opinion the case is one of more than suspicion. Thecumulative effect of the evidence leaves one with the convictionthat the car was not used in t? e ordinary way in which private carsare used. There is nothing in the evidence to suggest that thesepersons were members of the petitioner s household or in any wayconnected with him ; on the contrary the evidence where some ofthem reside suggests that they were taken at different pointswhen the car was on its way to and from Jaffna. There is alsothe fact that in these instances the car was earning a full load ofpassengers and that at times it was overloaded. I presume thatthe petitioner has the same desire for economy as most peopleand that he would not be transporting full loads of passengersfor long distances without some special reason. The petitionerdoes not say that the use of the car by the second accused waswithout his consent.
In the absence of any explanation by the petitioner or the secondaccused I think the Court was entitled' to draw the inference thatfhe* car was not being used for the purpose for which it waslicensed, namely, for private use..
The application is dismissed.
Application refused.