020-NLR-NLR-V-46-TAMBY-LEBBE-Appellant-and-VAVUNIYA-POLICE-Respondent.pdf
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HOWARD C.J.—Tamby Lebbe and Vavuniya Police.
1944Present : Howard C.J.
TAMBY LEBBE Appellant, and VAYUNIYA POLICE,Respondent.
1316—P—M.C. Vavuniya, 19,173.
Defence (War Equipment) (Purchase by Civilians) Regulations, 1944—Purchaseof military rations .by accused—Burden of proof—Regulation 2 (J) and
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Where the accused is charged under the Defence (War Equipment)(Purchase by Civilians) Regulations with the purchase of military ration*and the prosecution establishes that the accused purchased an articlewithin – the meaning of the regulations the burden is cast upon theaccused of bringing himself within the terms of sub-regulation (2), viz.,of proving that he acted in ignorance of the fact that the article was oneto which the regulations apply.
A PPEAL against an acquittal by the Magistrate of Vavuniya.H. W. R. Weerasooriya for Crown appellant.
S. Nadesan (with him H. IV. Jayewardene), for the accused, respondent.
Cur. adv. vult.
January 30, 1945. Howard C.J.—
This is an appeal against the acquittal of the respondent and made-with the sanction of the Attorney-General. The respondent was chargedunder Regulation 2 (1) of the Defence (War Equipment) (Purchase byCivilians) Regulations, 1944, that he did on August 21, 1944, purchasefrom one J. F. Sankey of the Royal Air Force, Ceylon, 100 tins of cornedbeef, 50 tins of jam, 50 tins of cheese and 48 tins of herrings being theproperty of His Majesty and intended for the use of the fighting forces.It was established by the prosecution that at 5.15 p.m. on August 22, 1944,.the articles specified in the charge were found by Flight-LieutenantSmith in the boutique of the respondent at Vavuniya. The respondent.
HOWARD C.J.—Tatnby Lebbe and Vaouniya Police.
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told Lieutenant Smith that he purchased the articles from two membersof the Royal Air Force who were pointed out by the respondent at anidentification parade one of whom was J. F. Sankey a witness called bythe prosecution. Sankey testified to the fact that about 11.30 a.m. onAugust 21, 1944, he and another man called Hyde, both in uniform, wentin a military lorry to the boutique of the respondent and offered him thearticles specified in the charge which the respondent agreed to purchase.Sankey went away and returned at 2.30 p.m. with the goods in a lorryand received Rs. 75 in advance. Sankey says that he told the respondentthat the articles were military stores. Sankey, in evidence, also saidthat the articles were not his but the property of the R. A. F. In cross-examination he said that he had been charged with the theft of thearticles and Court-martialled. Also that he drew the articles from themain ration stores and had them with him in the Cook-house. Sevendays rations are issued in bulk to him as rations for a certain numberof people and there was always a surplus quantity of tinned food in the.store of the Cook-house which was separate from the main store. Incross-examination Sankey stated that the food in the Cook-house storebelonged to the persons who get their food at the Cook-house. In re-examination, however, he said that the surplus rations belong to theR. A. F. and he was not entitled to sell them. No evidence was called onbehalf of the respondent.
In his judgment the Magistrate states that there is nothing on thearticles to indicate that they are military stores. The only evidencethat they are military stores is supplied by the testimony of Sankey whosays that he told the respondent that they were military rations. Theevidence of Sankey being uncorroborated, he is not prepared to act on it.In these circumstances there is no evidence on which he can hold that therespondent knew that the articles were military rations. He, therefore,found the respondent not guilty. .
Crown Counsel appearing on behalf of the appellant has contended that-as a matter of law there was no burden on the prosecution to prove thatthe accused-respondent knew that the said articles were military rations.I am in agreement with this contention. The regulation under which therespondent was charged is worded as follows: —
“ 2. (1) Every person who purchases any article to which theseregulations apply, or accepts or takes any such article by way of gift,loan or otherwise, from any member of the fighting forces, shall beguilty of an offence. ’ ’
If the prosecution establishes that the respondent purchased an article-within the ambit of the regulations, the burden is cast upon the re-spondent of bringing himself within the terms of sub-regulation (2). Heican prove that he acted in ignorance of the fact that such article was anarticle to which the regulations apply. The respondent did not give■evidence or call any witnesses. Nor does proof of such ignorance emergefrom the evidence called by the prosecution. The – respondent 'did not,therefore, discharge this onus.
It has, however, been further argued on behalf of the respondentthat the articles were not the property of His Majesty inasmuch as they
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HOWARD C.J.—Tamby Lebbe and Vavuniya Police.
had passed from the main store to the cook-house. It is contended that,as they were surplus rations, they became the property of the individualsoldiers who would eventually consume them. I cannot accept thiscontention. The rations on issue from the main store did not become the- property of the cook or the person’ in charge of the cook-house. Nodoubt when issued to an individual soldier they became his property,but previous to such issue such rations remain the property of His Majesty.There is no doubt on the evidence that the articles were the propertyof His.Majesty.
In these circumstances the appeal is allowed and I remit the caseto the Magistrate so that he may convict the respondent and pass sentencecommensurate with the gravity of the offence. In coming to this decisionI have not been unmindful of the fact that this court does not reverse afinding of acquittal unless it is satisfied that there has been a miscarriageof justice. In this case I am so satisfied.
Appeal allowed.