T. D. VICTOR, Appellant, and INSPECTOR OF CRIMES, HABOUR POLICE, Respondent

092-NLR-NLR-V-73-T.-D.-VICTOR-Appellant-and-INSPECTOR-OF-CRIMES-HABOUR-POLICE-Respondent.pdf


WEERAMANTRY, J.—Vidor o. Inspector oj Crimea, J/artour Police
49
Present: Weeramantry, J.T. D. VICTOR, Appellant, and INSPECTOR OF CRIMES, HARBOUFPOLICE, Respondent
S. C. GojGS—J. M. C. Colombo, 37754
Customs Ordinance (Cap. 23.5)—Section ICG (l)—Offence oj possessing an articU
suspected to hacc been stolen—Ingredients of the offence—Burden of proof.
In n prosecution undor section 1GC {!) of tho Customs Ordinance for possessingan article suspoctod to havo boon stolon—
Held, thnt soction 1GG (1) of tho Customs Ordinanco postulates two rorjuiro-monts os boing necessary to tho conviction of a porson in possession of anorticlo suspected to havo been stolon. They nro firstly that such person doosnot givo on account to tho sat is'notion of th) Magistrate as to how ho enmo bysuch articlo and SOSOndly that the Magistrate should bo satisfied that havingregal'd t> a!l tho circemdanros of tho ca-:o thoro aro roasonnblo grounds forsuspecting such articlo to Uo i to Ion. In regard to tho socond req-iiromont,tho rr.oro acccptnn q pf tho prosoaution vorsijn and tho rejection of tho dofoncedocs not amount to a finding by tho Magistrato that ho is satisflod that thorowore reasonable grounds for suspocting tho articlo to havo boon stolon. Itinvolves an indopondont inquiry on which indopendont findings are-required.
“ AVhon spocinl offcncos of this nature are created by tho Legislature and inparticular in tho enso of offences involving a reversal of tho usual ndes of proof,it is of tho utmost importance that thoro should bo tho strictest and mostscrupulous insistence on those factors which tho Legislature itself has postulatedas pre-requisites to & conviction. ”
.ApPEAL from a judgment of the Joint Magistrate’s Court, Colombo.. E. A. G. de Silva, for the accuscd-appcllcnt.
S. W. B. Wadugcdapiliya, Cionn Counsel, for the Att01r.c3 -Gcr.cral.
Cur. adv. vult.
March 29, 19CS. Weeramantry, J.—
The accused appellant in this case, a labourer employed under thoPort Cargo Corporation, was charged with the theft of an empty polythenebag reasonably suspected to have been stolen from warehouse No. 3,Delft Quay, in the Port of Colombo, an offence punishable under sectionI6G (I) of the Customs Ordinance, Chapter 235. The accused was foundguilty- of this offence and sentenced to pay a fine of Rs. 10, and to undergoone week’s rigorous imprisonment in default.
The ease for the prosecution was that around 9 p.m. on the day inquestion the accused and some other employees of the Port CargoCorporation, when coming out of warehouse No. 3, were observed to
498WEERAM.ANTJVY. J.—Victor v. Inspector of Crimes, Harbour Police
have in their possession certain polythene bags in which ammonia wasusually packed. These bags were being carried at the time under theirarm pits and contained the clothes of these labourers. The prosecutioncontended that the polythene bags were property belonging to warchousoNo. 3 and that the accused entertained a theftuous intention in regardto the polythene bag he carried.
It would appear that it was not an unusual occurrence for labourersengaged in unloading ammonia, to protect themselves by wearingdiscarded polythene bags round their waists, as was spoken to by a' storekeeper of the Port Cargo Corporation who was called as a prosecutionwitness. This storekeeper stated further that he had seen labourerswith these polythene bags wrapped round their waists going out of thewarehouse and coming in after dinner. Their dinner time would appearto be between 9.00 and 10.00 p.m.
The officials of the Harbour Police who saw the labourers on thatoccasion stated that they were proceeding in the direction of the watertap presumably to wash their hands before or after their- meal..Furthermore although there is no direct evidence on the matter, thewater tap is itself clearly situated within the premises of the Port, forthe charge is one of being found in possession of a suspected articlewithin the limits of the Port. It cannot therefore bo concluded thatmerely because the labourers in question were going out of the warehousethey were attempting to take these bags out of the premises of thePort.
Another' circumstance spoken to by the prosecution witnesses wasthat the polythene bags were not concealed but were being openlycarried.
There was no evidence on the part of the prosecution proving that thebag which was found on the accused came from stocks in the warehouse,and the only attempt at identifying the bag as being one from the storeswas evidence of similarity between a specimen bag taken from the storesand the bag In question. There was no identifying mark on the bagnor was the storekeeper able without his books to speak to the stockposition. This deficiency in the prosecution evidence assumes particularimportance in view of the evidence of the storekeeper himself thatdiscarded bags were used for protective purposes by labourers as referredto earlier.
The accused himself gave evidence and stated that polythene bagsare used by the labourers to wrap around their waists and that at dinnertime which Is between 9.00 and 10.00 p.m. the labourers go out of thewarehouse for their dinner and after dinner wash their hands at thewater tap. When they go for dinner as well as when they wash theirhands they do not remove the bags which are round their waists. Headmitted having the bag in question with him and denied that heentertained any theftuous intention in regard to it. The accused further,stated that the supervisor had seen them use polythene bags for this
WEERAMANTRY, J.— Vidor v. Inspector oj Crimes, Harbour Police 499
purpose but had never asked them not to do so. He also denied havingever taken polythene bags out of the harbour. The learned Magistraterejected the evidence of the accused to the effect that he had no intentionof commiting theft and observed that the accused could not have beenwearing discarded polythene bags round his waist os according to theevidence lie had his clothes wrapped in the polythene bag. In view ofhis.rejection of the defence version and his acceptance of the prosecutionevidence the Magistrate found the accused guilty of the charge.
The approach of the learned Magistrate to the case necessitates onexamination of the section under which the charge is laid. It will beobserved that section 1GC (1) postulates two requirements as beingnecessary to the conviction of a person in possession of an article suspectedto have been stolen. These arc firstly' that such person docs not givean account to the satisfaction of the Magistrate as to how lie came bysuch article and secondly that the Magistrate should be satisfied thathaving regard to all the circumstances of the case there are reasonablegrounds for suspecting such article to be stolen.
The Magistrate has in the. present case not been impressed by' theaccount given byr the accused as to how he came by such article. Thodefence submits that the Magistrate has overlooked the circumstancethat the explanation is a reasonable one having regard to the prosecutionevidence that there were abandoned bags w hich were used by the labourerswithout objection by the authorities, that the bag was being openly-carried, that there was no material placed by the prosecution beforethe court to eliminate the possibility- of the bag in question being anabandoned bag and that there was no evidence of any shortage of stocksin the warehouse. Be that as it may', there is a finding by' the learnedMagistrate on this matter which it would not be necessary to disturbhaving regard to the second requirement imposed by the section.
The section is in somewhat unusual terms in that it expressly' requiresthe Magistrate to be satisfied that having regard to all the circumstancesof the case there arc reasonable grounds for suspecting such article tohave been stolen. Hence the Magistrate should in fact be satisfied ofthe existence of these reasonable gounds. Nowhere in the order of thelearned Magistrate does he give his attention to the question whetherthis is a bag which there arc reasonable grounds for suspecting to havebeen stolen. Such a finding by the learned Magistrate becomes allthe more important when one has regard to the circumstances stressedby the defence, which have been outlined in the preceding paragraph.
In support of his argument that the Magistrate should expressly givehis mind to this question, learned Counsel for the appellant has citedthe case of Samtnie v. Kagodu Police1 where Nagalingani J. had occasionto consider a similar point under the Rubber Thefts Ordinance. ThisOrdinance which appeared as Chap. 29 in Volume 1 of the 193S editionof the Legislative Enactments, contained a section framed in phraseology
» (1051) 53 N. L. It. 255.
500WEEK AMIN T li Y, J.— Vidor v. Inspector of Crimes, Harbour Police
identical with that of section 166 (I) of the Customs Ordinance. Section16 (1) of the Rubber Thefts Ordinance provided that any person found inpossession of rubber suspected to have been stolen may be convictedof an ofTcnce under the Ordinance if such person does not give anaccount to the satisfaction of the Magistrate as to how he came by thatrubber and the Magistrate is satisfied that, having regard to all thecircumstances of the case, there are reasonable grounds for suspectingsuch rubber to have been stolen.
With reference to this latter provision, Xagalingam J. in the casecited has observed that the effect of this provision is that where theaccused person can give an innocent explanation of his possession he isentitled to an acquittal although the rubber inaj' in fact be stolen property.He further observed that it is only where the accused has failed to satisfythe Magistrate that his possession of the rubber was in circumstanceswhich exclude any mens rea attaching to him, that the Magistrate iscalled upon to proceed further to satisfy himself that there arc reasonablegrounds to suspect such rubber to have been stolen. Moreover in thatcase the accused had in fact pleaded guilty, but despite this plea it washeld that the Magistrate should be satisfied that there are reasonablegrounds for suspecting the rubber to have been stolen.
We do not in the present case have any expression by the Magistrateof a view that having regard to all the .circumstances of the case thereare reasonable grounds for suspecting the polythene bag in question tohave been stolen. Just as in Sammie v. Nagoda Police a plea of guiltwas held to leave unaffected the requirement that the Magistrate shouldbe so satisfied, so also in the present case the mere acceptance of thethe prosecution version and the rejection of the defence does not amountto a finding by the learned Magistrate that he is satisfied that there werereasonable grounds for suspecting the bag to have been stolen. Indeedthe latter involves an independent inquiry on which independent findingsare required. An .answer adverse to the accused on the question howhe came to be in possession does not necessarily lead to an answer againsthim on the question whether the property is reasonably suspected tohave been stolen. If a finding on the former question concludes thematter there is no reason why the legislature should expressly stipulateas an additional requirement that the Magistrate should be satisfied onthis latter matter as well.
When special offences of this nature are created by the Legislatureand in particular in the case of offences involving a reversal of the usualrules of proof, it is of the utmost importance that there should be thestrictest and most scrupulous insistence on those factors, which theLegislature itself has postulated as pre-requisites to a conviction.
• There is also a decision on similar lines in Hutchinson v. Wtjesinghe1where the Ordinance in question was as in the present case the CustomsOrdinance.-. In that case Swan J. following Nagaliogam J. in Sammie v. ■
1 (1353) SSH.L. P. 431.
rooms r. l>. i. /'once, t^anauuimm
SOI
Xagoda Police held that the Magistrate should have been satisfied thathaving regard to all the circumstances of the ease there were reasonablegrounds for suspecting the article to have been stolen from any ship, boat,quay, or warehouse within the Port of Colombo. Swan J. has thereexpressed the view that it was only after the learned Magistrate wasso satisfied, that it would have- become incumbent on the accused to givean account to the satisfaction of the Magistrale as to how he came bythis article.
In reliance on ihe principle enunciated by Xagalingam J. in Satnmie v.Xt/yorfri J'oliit I hold that the order cannot be sustained. In the absence,of a finding as required by the section and in the circumstances of theaccused having offered an innocent explanation not inconsistent withthe prosecution evidence itself, I take the view that the prosecution hasfailed to prove the charge which it has laid against the accused.
I accordingly quash the convict inn and acquit the accused.
■Appeal aJlotced.