099-NLR-NLR-V-51-WICKREMEWARDENE-et-al-Appellant-and-ABEYSINGHE-P.-S.-644-Respondent.pdf
Wickrctne warde-ne v. Abcye-rirtylte
405
1949Present: Gnnasekara J.WICKREMEWABDENE et at., Appellants, and ABEYESINGHE(P. S. 644), Respondent
S. C. 920-921—M. C. Nutcara Eliya, 4,149
Unlawful possession of tea leaf—Common possession in motor car—Consciouscontrol of one person only—Inference of guilt—Protection of ProduceOrdinance (Cap. 28), section 4.
Whoro property is found upon premises of which several persons arein common occupation, it cannot be said to be in the possession of anyone of them in particular, unless there are facts pointing to the propertyboing in the conscious control of that person.
.^^.PPEAL from a judgment of the Magistrate's Court, Nuwara Eliya.II. V. Perera, K.C., with Kingsley Herat, for accused appellants.
A. Mahendrarajah, Croum Counsel, for the Attorney-General.
Cur. adv. vult.
406OUXASEKAKA J.—Wickremewartfcnc v. Abeyeainghe
October 12, 1949. Gonasekaea J.—
The two appellants were convicted of an offence punishable undersection 4 of the Protection of Produce Ordinance (Cap. 28) and weresentenced to a term of six months’ rigorous imprisonment each. Theenactment in question provides inter alia that whenever anyone is foundin possession of any tea leaf (whothcr in a natural or manufacturedstate) under such circumstances that there is reason to suspect that thesame is not honestly in his possession, and he is unable to give to the courtbofore whom he is tried a satisfactory account of his possession thereof,such person shall be guilty of an offence.
According to tbe case for the prosecution, which was accepted by theMagistrate, motor car No. B. 1728, which belongs to the first appellantwas driven into a tea estate at Ambawda at about 12.30 a.m. on March21. Half an hour later it was driven back to the main road withoutlights. Two of a party of police officers that had been watching the cartried to stop it by stepping in front of it and signalling with electrictorches. The car lights wore then switched on and the car swervedtowards them and passed them as they leaped out of its way. Thepolice officers thereupon boarded their own car and gave chase, but asthey approached it the other car was driven with accelerated speed.The police had it within their view, however, except for a short timewhen it went round a bend, until it stopped outside the first appellant’sgarage which was by the Bide of the main road. They immediately wentup to it before its occupants could get out and found the first appellantin the driving seat and the second appellant seated beside him. Insidethe car they also found seven bags of tea covered with a blanket and asarong. Neither of tho appellants produced a receipt or a permit orgave an explanation of the presence of tho tea in the ear. Tho teaweighed 090 lb. and was valued at Rs. 1,000.
According to the defence tho tea belonged to the second appellantwho was a dealer in tea, and had been left for him in tho first appellant’sgarage by a man who had bought it for him. Evidence was adducedto the offect that it was inside the garage and not in the car that the policefound it, and that tho police story of a pursuit by them of tho first appel-lant’s car and their account of the circumstances in which they foundthe tea were false. The learnod Magistrate has carefully considered all theevidence in the caso and has believed the evidence for the prosecution,and disbelieved the defence contradiction of it, and I can seo no reasonfor saying that he ought not to have accepted that evidence.
Having accepted the evidence for the prosecution, the Magistrateholds that—
“ the circumstances under which the tea was found, as testified toin this case, arc certainly circumstances in which one maysuspect that the tea was not come by honestly ”.
and that
“ in a case of this kind, having regard to the circumstances in whichthe tea was found, it is incumbent upon the defence, as thesection requires, to give a satisfactory account of the possessionof the tea ”.
GUNASEKARA J.—Wickremewardene v. Abeyeainghe
407
The section imposes such a duty on an accused person, however, onlywhen it has been proved that the tea was found in his possession, andit docs not appear that the learned Magistrate has directed his mindto the question whether it has been proved as against each of the appel-lants that the tea was found in his possession. He appears to haveassumed that it was found in their joint possession and to have proceededto consider whether they have given a satisfactory account of suchpossession.
Stroud’a Judicial Dictionary, citing Stephens1 Digest of the CriminalLaw, gives the following definition:
“ ‘ Possession ’ qua the Criminal Law and offences against Property,
has been thus defined:—
‘ a movable thing is said to be in the possession of a person whenhe is so situated with respect to it that he has the power to dealwith it as owner to the exclusion of all other persons, and whenthe circumstances are such that he may be presumed to intend todo so in case of need.'11
It has been pressed upon me on behalf of the first appellant that thefacts accepted by the learned Magistrate are insufficient to show that thefirst appellant was so situated with respect to the tea that he had thepower to deal with it as owner, or that the circumstances were such thathe might be presumed to have intended to do so in case of need: mid thatthe evidence that the second appellant was a trader in tea, which has notbeen rejected, would at the lowest involve in doubt the question whetherthe tea that was in the car was in the possession of the first appellant.It seems to me that the learned Magistrate has misdirected himself inomitting to consider the effect of this evidence on the question whetherit has been proved beyond reasonable doubt that the tea was in thepossession of the first appellant.
It has been held in a series of cases, following Banda v. Haramanisthat where property is found upon premises of which several persons arein common occupation, it cannot be said to be in the possession of anyone of them in particular, unless there are facts pointingto the propertybeing in the conscious control of the person : cf. Sethukavabr v. Kandiahi,Police Inspector, Galagedera v. Punchirala 3, Silva v. Kandiak *. Inthe present case, if the learned Magistrate had considered the effect of theevidence that the second appellant was a trader in tea he may well haveentertained a doubt as to whether the tea was in the possession of thefirst appellant. He may well have held that the facta proved againstthe first appellant were not inconsistent with his having conveyed inhis car a tea trader and a large quantity of tea that vas in the latter’sexclusive possession ; and that while his conduct proved that he knewor suspected that the tea was “ not honestly in the possession ” of thesecond appellant, such knowledge or suspicion couli not make him a
joint possessor of the tea,
1 {1919) 21 N. L. R. HI.
* (1920) 7 C. W. R. 141, 1 Bee. 177.
3 {192*) 6 Bee. 70.*(1930 32 N. L. R. 253.
408
GUXASKKARA J.— Wickremewanlene t>. Abeyesinghe
It seems to me that the learned Magistrate’s omission to direct hismind to the question whether possession has boon brought home to the firstappellant and his omission to consider the bearing on that questionof the evidence that the second appellant was a tea trader were mis*directions that vitiate the conviction of the first appellant. I thereforeset aside the conviction of the first appellant and the sentence passedupon him.
In view of the second appellant’s admission that he is a trader in teaand the fact that ho claims the tea as his, I see no reason to interfere withhis conviction. No previous conviction has been proved against him,however, and I do not think that tho case is one that calls for theimposition of a sentence of imprisonment for a first offence.
I affirm the conviotion of the second appellant and vary the sontenceto a fine of Rs. 200 or six weeks’ rigorous imprisonment in default ofpayment of the fine.
Appeal of first accused allowed.
Conviction of second accused affirmed.
Sentence varied.