126-NLR-NLR-V-22-VIDANE-ARACHCHI-OF-KALUPE-v.-APPU-SINNO.pdf
( 412 )
1921.
Present: Schneider A.J.
VIDANE ARACHCHI OF KALUPE v. APPU SINNO.
452—P. O. Balapitiya, 49,273.
Confession to a Mudaliyar—la it admissible 9
A confession to a Mudaliyar of a district who arrested the accusedwas held to be inadmissible.
^pHE facts appear from the judgments
' Amereaekera, for first accused, appellant.—The convictionis based on a confession to a Mudaliyar, which is inadmissible,inasmuch as the Mudaliyar on this occasion performed the duties ofa Police Officer in arresting the accused. In Nugo Kanny v. PattiesPerera1 Wood Benton C. J. held that a Mudaliyar, who held aninquiry at the request of a Government Agent into a departmentalpetition presented by the complainant against ar Police Vidane, wasa Police Officer, and that a confession made to him by the accusedwould be inadmissible in evidence against him.
, It is incumbent on the prosecution to prove that the coral stoneswere collected within a prohibited area.
Eliminating the evidence of the Mudaliyar as being inadmissibleby virtue of the provisions of section 25 of the Evidence Ordinance,there is no evidence to prove that the coral stones were collectedwithin a prohibited area.
May 30,1921. Schneider A.J.—
This is an appeal by the first accused, who, together with another,was convicted of having removed coral from a prohibited area incontravention of the provisions of the Seashore Protection Ordi-nance* 1911. The evidence of the Mudaliyar of the district, whichthe Magistrate has accepted, ajid which I see no reason for notaccepting, is that he met the two accused at. 10 p.m. removing coralin a cart at a spot on a main public thoroughfare where the seahad washed*- away a portion of the thoroughfare at a place calledWeeralana. He found the coral wet and presenting the appearanceof having been just collected from the sea. He put his tongue tosome of the coral and it tasted salty. He questioned the accused,who admitted to him that they had collected the coral within a,prohibited area close by. He therefore arrested the accused, andhanded over the coral and the cart and bulls to the Vidane Arachchiand one Janis.
* (1908) 1 Tam. Rep. 25.
( «3 )
At the trial the accused denied their confession to the Mudaliyar,and stated that they had procured the coral at a place inland calledUduwaragoda, which is stated by witnesses variously as being Ifor 3 miles distant from the scene of the arrest. On appeal twoobjections were submitted against the conviction. It was firstcontended that the confession to the Mudaliyar was inadmissibleby virtue of the provisions of section 25 of the Evidence Ordinance,inasmuch as the Mudaliyar must be regarded as a Police Offioer.
In support of this contention the case of Nugo Kanny v. PablesPerera1 was cited. In that case Wood Benton J. held that aMudaliyar who held an inquiry at the request of & GovernmentAgent into a departmental petition presented by the complainantagainst a Police Vidane was a Police Officer, and that a confessionmade to him by the accused would be inadmissible in evidenceagainst the accused. In the course of his judgment he said: “ It isof great moment that both the spirit and the letter-of that sectionshould be maintained, and I think it applies to headmen of allgrades as well as Police Officers within the strict meaning of theterm.”
In this case the Mudaliyar says he “ arrested ” the accused.He appears in so doing to have assumed the duties of a PoliceOfficer, and it seems to me that the confession was made to him inhis capacity as Mudaljyar. For the reason given by Wood Benton J.in the case cited, I would, in this case,' hold that the confession ofthe accused to the Mudaliyar is inadmissible in evidence against theaccused. The next contention was that, apart from the confession,there was no evidence to support the conviction. It, therefore,remains to be considered what other evidence there is to supportthe conviction. There is the evidence which I have already referredto, viz., that the Mudaliyar had observed that the coral was wet andhad seemingly been just fished out of the sea. Besides this, there isevidence that the coral from Uduwaragoda is quite different inappearance to the coral fished out of the sea, and the learnedMagistrate, from his own observations of specimens produced beforehim came to the conclusion that the coral dug from land awayfrom the sea was different to coral dug from the sea. But thisevidence does not prove anything more than that the defence isfalse as to the place from where the coral had been obtained. Itdoes not prove, what it was incumbent on the prosecution to prove,that the coral had been collected within a prohibited area.
I would, therefore, set aside the conviction of the accused (appel-lant) and acquit him. Acting in revision I would make the sameorder as regards the conviction of the second accused.
Set aside, 1
1921.
Schneider
A.J.
VidaneAraobehi ofKahtpev.Appu Sinno
1 (1908) 1 Tam. Rep. 25.