028-SLLR-SLLR-1978-79-V2-Y.-A.-Bazeer-and-others-v.-Perera.pdf
CA
Bazeer v. Perera (Afukorale, J.)185
Y. A. Bazeer and others v. Perera
COURT OF APPEAL.
RATWATTE, J., AND ATUKORALE, J.
c.a. (s.c.) 458—468/76—m.c. anuradhapura no. 58498.
NOVEMBER 7, 1979-
Criminal Procedure—Fauna and Flora Protection Ordinance (Cap. 469),sections 2, S (1), 10, 72 (I)—Charge sheet specifying wrong Gazette set-ting out boundaries of National Park—Correct Gazette not produced—Evidence Ordinance, section 57.
The accused-appellants were charged with unlawfully entering the limitsof the Wilpattu National Park as specified in Government GazetteNo. 14,860 dated 27.6.69. This particular Gazette does not specify thelimits of the Wilpattu National Park but of an area called’ WilpattuEast Intermediate Zone which is also a National Park- No other Gazettewas produced.
Held
The fact that a wrong Gazette was mentioned in the charge sheetwas a defect which alone was sufficient to vitiate the conviction.
Oral evidence of the contents of a Gazette, in the absence of theGazette itself is insufficient to establish the existence of or the boundariesof the National Park. Hence, the relevant Gazette containing the Minis-ter’s Order pertaining thereto must be produced in evidence; and thefailure to do so is fatal to the prosecution case.
APPEAL from the Magistrate’s Court, Anuradhapura.
E. R. S. R. Coomaraswamy, with M. L- M. Ameen, Dudley Fernando andA■ M. M. S. Abdul Cader, for the appellants.
Sarath de Abrew, State Counsel, for the respondent.
Cur. adv. vult.
December 7, 1979.
ATUKORALE, J.
The appellants were charged on two counts under the Faunaand Flora Protection Ordinance (Chapter 469—1966 SupplementVol. 1, page 9). After trial they were found guilty on the first countand sentenced to pay the maximum fine of Rs. 500 each. Theywere acquitted on the second count. The present appeal isagainst their conviction and sentence on the first count.
On the first count they were charged with having acted incontravention of the provisions of section 5 (1) of the Fauna andFlora Protection Ordinance by jointly and unlawfully enteringthe limits of the Wilpattu National Park as specified in Govern-ment Gazette No. 14,860 dated 27.6.1969 and having therebycommitted an offence punishable under section 10 of the saidOrdinance.
Mr. Coomaraswamy, learned counsel for the appellant, hasduring the course of his submissions referred us to this Govern-ment Gazette. His contention was that this Gazette does notspecify the limits of the Wilpattu National Park and that the
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Sri Lanka Law Reports (1978-79) 2 S. L.R.
conviction cannot therefore stand. A perusal of this Gazetteshows that it contains the following Order made by the Ministerof State:
“ With effect from the date on which, this Order is published inthe Gazette—(1) the limits of the Wilpattu East IntermediateZone defined in the Schedule to the Order published in GazetteNo. 10,35? of February 22, 1952, shall be altered, by the subs-titution for such limits, of the limits set out in t'he Schedulehereto; and
the Wilpattu East Intermediate Zone shall be a NationalPark.”
It then proceeds to set out in the Schedule the boundariesof the Wilpattu East Intermediate Zone, a part of the westernboundary of which is defined as “ the eastern and part ofnorthern boundaries -of tfne Wilpattu National Park. ” It is thusvery clear that this Order sets out the boundaries not of theWilpattu National Park but of the National Park called theWilpattu East Intermediate Zone. I am of opinion that this defectalone would vitiate the conviction of the appellants.
Learned counsel for the appellants also submitted that thefailure of the prosecution to produce the Gazette referred to inthe first count is by itself fatal t.o this conviction. He sub-mitted that oral evidence in the absence of the Gazette is in-sufficient to establish the existence or the boundaries of theNational Park. I am inclined to agree with this submission. Section5(1) of the Ordinance prohibits any person from entering orremaining within any National Park except under the authorityand in accordance with the conditions of a permit issued by theprescribed officer. Section 72(1) defines “National Park ” to meana National Park constituted by Order under section 2(1). Section2(1) empowers the Minister by Order published in the Gazette todeclare that the whole or any specified part of a NationalReserve to be a National Park. Section 2(4) empowers the Minis-ter by Order published in the Gazette to alter or vary the limits ofa National Park as from a specified date. It is thus clear thatthe constitution of a National Park must be by Order of theMinister published in the Gazette. This Order would define theboundaries of tfae Park. Hence to establish the existence andthe boundaries of a particular National Park the relevantGazette containing the Minister’s Order appertaining theretomust be produced in evidence. Oral evidence of the contentsof the Order is inadmissible. Nor does the Order fall into anyof the classes of documents enumerated in section .57 of the Evi-dence Ordinace of which the court is bound to take judicial notice.
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CAFernando v. Jinadasa
It is thus incumbent on the prosecution to produce the Gazettein evidence at the trial. No doubt this may sometimes causehardship and difficulties to officers entrusted with these prose-cutions. But these cannot be permitted to override the interestsof justice. For the above reasons I quash the convictions andthe sentences imposed by the learned Magistrate and acquit theappellants.
RATWATTE, J.—I agree.Convictions quashed.
G. G. Ponnambalam, Jnr.,Attomey-at-Iaw..