114-NLR-NLR-V-51-FERNANDO-et-al-Appellants-and-CHANDRADASA-et-al-Respondents.pdf
Fernando c. Chandradasa
475
1950Present: Nagalingam J.
FERNANDO et al., Appellants, and CHANDRADA^A el al., Respondents
S. C. 506-508—M. C. Kuru.nc.oala, Nos. 472, 53,709 and 53,700
Omnibus—Carrying of passengers in excess of authorized number—No valid licenceat date of alleged offence—Effect—Motor Car Ordinance, -Vo. 45 of 193S,sections 111 (2) and 158.
The conductor of an omnibus cannot be convicted, under section 111 (2)of the Motor Car Ordinance, of carrying passengers in excess of the authorisednumber if, at the date of the alleged offence, the licence in respect of the omnibus'had not been issued by the Motor Commissioner’s Department.
1 {1909) 14 N. L. R. 475.* (1933) 35 N. L. R. 244.
* {1940) 41 X. L. R. 294.
4?t>NAGALINGAM J.—hen-umlo V. Chan<ir<rlo*a
.^^PPKALS from three judgments of the Alngtstialcs Court,Kurunegala.
i.V. M. de Sil’ ii-, for accused appellants.
A . V. M. -4 meer, Crown Counsel, for the Attorney-General.
July 13, 1050. Nagalincam J.—
’rheso are three appeals from the Magistrate’s Court-, Kurunegala,in which the accused-appellants have been convicted for carryingpassengers in excess of the authorised number, an ofTonce punishable'under section 158 of the Motor Car Ordinance, No. 45 of 1038. The factsaro that in each of those cases the appellants, who arc bus conductorson throe different buses, were detected conveying passengers in oxcessof the number that the omnibus was licensed to carry for the previousyear, namely, the year 1949, the dates of the alleged offences being datesin the year 19.50 and the dates were certainly prior to the 31st of March,
1950. It would appear that subsequent to the dates on which the allegedoffences vvore detected the omnibuses were licensed, but there is noevidence to show that the licences so issued had reference to a dateanterior to the date of their actual issue. In the result, the position inwhich the prosecution found itself in trying to maintain the case againstthe accused wras that at the date of the alleged offences there was novalid licence in operation in respect- of any of the omnibuses.
The learned Magistrate has seen his way to convict the accused, basinghis judgment upon a very broad proposition, namely, that if he didacquit the accused, then the position would be that an omnibus in respectof which a licence had been issued could not be overloaded without thebus conductor incurring a penalty, but that where an omnibus wasplying for hire without obtaining a licence and if there was overloading,the conductor cannot be said to have committed an offence. There can belittle doubt that this would seem to be the unfortuuatc result of the lawas it Stanas at piwout. Tn Armaidoring o> [Wllttl statute, it must not bo BOconstrued as to hold that an offence not within both the letter of thestatute and the spirit of it has been created by it .
It is obvious in this case that at the date of the alleged offence therewas no valid licence in respect of the omnibus. The omnibus did notin fact carry a licence for the year 1950. The licence if it had been issuedwould have boen carried on the omnibus and if so carried would havegiven notice to the bus conductor as to the maximum number of passengersthat were permitted to be conveyed in it. The bus conductor who mayhave worked on t-he bus on the date of the alleged offence may havobeen entirely ignorant of what the licence for the previous year contained.It is pointed out that in point of fact there was the licence issued for theyear 1949 on the bu3, but that was not a licence that was in force for theyear 1950 and must bo regarded merely as waste paper which had nosignificance whatsoever to any one who may have perused it. The result
Majeed v. MannampemvKi
477
is that the accused persons could not be said to have exceeded anynumber which had been prescribed as the maximum limit for the con-veyanco of passengers.
The provision under the law is that where omnibuses are to bo licensedfrom the month of January applications for such licences should beforwarded in September the previous year. Thero is no reason to sup-pose that no such applications had been made in respect of theseomnibuses. If so, the delay in issuing the licences must be attributedentirely to the fact that the Motor Commissioner’s Department wasfor reasons best known to the Department, not in a position to issue theSconces not merely before January 1 of the following year but ovenas late as tbo date of the detection of these offences. The solution wouldseem to be that the Department should have an increased personnelwho would be able to license these vehicles effectively before the com-mencement of the subsequent year, or, if that be not possible, an amend-ment of the law should bo made so as to penalise offences of this natureby a reference to the number of passengers carried on the omnibus in tboprevious year.
So far as these accused are concerned, there can be little doubt that theconvictions against them cannot be sustained. 1 therefore set- aside theconvictions and acquit the ar*'*used.
A ppeal f c.llnwert.