017-NLR-NLR-V-67-THE-SOLICITOR-GENERAL-Appellant-and-M.-P.-DHARMASENA-Respondent.pdf
1964Present: T. S. Fernando, J.THE SOLICITOR-GENERAL, Appellant, andM. P. DHARMASENA, Respondent.
S. G. 718 of 1964—M. C. Kurunegala, 21137
Sale of arrack without licence—Burden of proof—Excise Ordinance, s. 18—EvidenceOrdinance, as. 105, 106.
In a prosecution under section 18 of the Excise Ordinance for sale of an exci-sable article, the provisions of sections 105 and 106 of the Evidence Ordinancethrow the burden of proof on the accused to show that he had a licence.
Appeal from a judgment of the Magistrate’s Court, Kurunegala.
V. S. A. PuUenayegum, Crown Counsel, for the appellant.
No appearance for the accused-respondent.
[Cur. adv. vult.
October 28, 1964. T. S. Fernando, J.—
The accused-respondent was charged in the Magistrate’s Court withselling arrack without a licence from the Government Agent in contra-vention of section 18 of the Excise Ordinance. After taking the evidencetendered by the prosecution, the learned Magistrate, without callingupon the accused for a defence, made order discharging him. In thecourse of that order, the Magistrate stated as follows :—
“ The accused is charged for selling arrack without a licence.No where in the evidence of the witnesses is there any statement toshow that the accused had no licence. If the accused had a licencethen he would be entitled to an acquittal. The prosecution mustdepend on the strength of its own case.
T. 8. idiftNANtH}, «t.—SoHciM*r-&a%ert)A ©, Dharmemena
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The failure to produce any evidence that the Mooaed had no tfownoe.
therefore, oasts no burden on the accused to prove that he had a fcoenoe.
The prosecution has to prove every material point in the charge.
The fact that the accused had no licence is the very basis of the
prosecution.”
It is dear from a perusal of the proceedings including the Magistrate'sown order that the prosecution had tendered all the evidence it intendedto tender or, in other words, that the prosecution had dosed its case.In those oh-cumstanoee the Magistrate must have intended to acquitthe accused, and it is a matter for regret that he did not say so but statedthat he was discharging the accused.
Turning, however, to the question of the correctness of the order ofacquittal, it is apparent that the learned Magistrate has seriously mis-directed himself on the question of the burden of proof. This questionarises daily in a large number of cases that come up for disposal in Magis-trates' Courts. Indeed, the point is now so well settled that it is a matterfor surprise that an experienced Magistrate appears to be unaware ofthe correct position at law.
Chapter IX of our Evidence Ordinance itself provides the answerto the question that is raised on this appeal. Section 106 enacts thatwhen any fact is especially within the knowledge of any person, theburden of proving that fact is upon him. Illustration to that sectiondeals with a situation analogous to that in the case that came up fordecision before this Magistrate. Where A is charged with travellingon a railway without a ticket, the Evidenoe Ordinance there indicatesthat the burden of proving that A had a ticket is on him.
A similar point was settled over fifty years ago in our Court by aBench of Three Judges in the case of The Mndaliyar, Pitigal KorakNorth v. Kiri Bandax. It was held there that, on a prosecution undersection 20 of the Forest Ordinance, the burden of proving that the forestin which the offence was alleged to have been committed is “ not includedin a reserved or village forest ” lay upon the accused. The Bench ofThree Judges held that Ore words “ not included in a reserved or villageforest ” are in the nature of an exception within the meaning of section1115 of the Evidence Ordinance. Hutchinson C.J. stated that thesewords are merely another way of saying ” unless it is included in areserved or village forest.” Orenier, A.J. stated that *‘ once the Crownproves that a person has broken up the soil, or cleared, or set fire to
any forest, the onus is clearly on that person to justify
his act, and claim immunity from it by proof that the land is included ina reserved or village forest. If he can produce a permit, or if he can showthat the land is his private property, there will be an end to the prose-cution. Such positive proof is directly in his power to adduce, and he
ought to be able to adduce it instead of calling upon the prosecution toestablish a negative ; and I think the words of section 105 threw theburden of proof on the person charged to show the existence of circums-tances which would exonerate him from the legal consequences of hisact.”
While the question before me can be disposed of by a reference to ourown Evidence Ordinance, it is of some interest to note that even underthe English law of evidence where, generally speaking, the burden ofproof of a criminal charge lies upon the prosecution, the position is thatthere are some facts so peculiarly within the knowledge of the accusedthat the prosecution is not required to give even prima facie evidenceon the point. R. v. Oliver1 dealt with the case of a person chargedwith having sold sugar as a wholesaler without the necessary licence,in contravention of a Sugar (Control) Order made in pursuance of powersconferred by the Defence (General) Regulations. The Court of CriminalAppeal of England there held that the prosecution was under no neces-sity of giving prima facie evidence of the non-existence of a licence.The case of R. v. Oliver (supra) was applied by the Queen’s Bench Divisionin the case of John v. Humphreys 2 which held that, where a person wascharged with a contravention of section 4 (1) of the Road Traffic Actof 1930 which enacts that a person shall not drive a motor vehicle on aroad unless he is the holder of a licence, the burden of proof that thedefendant had a licence lay on him because that fact was peculiarly with-in his own knowledge, and in the absence of proof on his part that he hada licence the justices ought to have convicted. Whether it be in Englandor in Ceylon, where a person is charged with driving a motor vehicleon a highway without being the holder of a certificate of competence,it would be an intolerable situation for the prosecution to have to callevidence from a number of sources, all potential grantors of certificatesof competence. Numerous other illustrations could be furnished to showthe unreasonableness of the view that appears to have been upheld bythe Magistrate from whose decision the present appeal has been taken.
The appeal is allowed for the reasons I have given above, and theorder of 8th April 19C4 acquitting the accused is hereby set aside. Inordinary circumstances the case could have been remitted for the trialto be continued before the same Magistrate so that he may now callupon the accused for his defence and thereafter proceed according tolaw. The Magistrate who made the order appealed from has, however,been transferred to another court, and it is not therefore expedient todirect that he should continue with the trial. In the special circums-tances, the convenient course now to take is to direct that the accusedbe refried before the present Kurunegala Magistrate, and I accordinglyso direct.
Appeal allowed.
* (1955) 1 A.E.R. 793.
1 (1943) 2 A.E.R. 800.