057-NLR-NLR-V-54-B.H.DE-SILVA-Appellant-and-EKANAYAKE-Sub-Inspector-of-Police-Respondent.pdf
Silva o. Ekanayahe
235
1952Present: Swan J.
H. DE SILVA, Appellant, and EKASAYATCF! (Sub-Inspector ofPolice), Respondent
S. G. 152—M. C., Galle, 2,213
Rubber Thefts Ordinance [Cap. 29)—Section 14—Meaning of “ books ”—Direction of
Government Agent.
If on an inspection under section 10 of the Rubber Thefts Ordinance it isdiscovered that there is a discrepancy between the weight shown in the RubberSales Register and that found by the inspecting officer, the dealer would bedeemed to be guilty of an offence within the meaning of section 14 of thatOrdinance..
Wimalaguneratne v. Weerasekera (1951) 53 N. L. R. 93, considered.
-A. prosecution under section 14 of the Rubber Thefts Ordinance should notbe instituted without giving the accused an opportunity of avoiding the prose-cution by obtaining a direction from the Government Agent under the provisoin that section.
(1898) 4 N. L. R. 236.
(1908) A. C. 92.
236
SWAN J.—Silva v. ISkaruiyaJce
.^^.PPEAL from a judgment of, the Magistrate’s Court, Galle.
H. V. Perera, Q.C., with E. B. SathuruJsulasinghe, for the accusedappellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
October 30, 1952. Swan J.—
The accused in this case was charged under section 14 of the RubberThefts Ordinance with having on his licensed premises 87 lbs. of rubber inexcess of the weight “ appearing in Ms books ”. The detection was madeabout 3.35 p. m. on 23.7.51 and this prosecution was entered the followingday. Appearing on summons the accused pleaded not guilty, and thecase was fixed for trial. On 20.11.51 Counsel for the accused drew theattention of the learned Magistrate to the proviso to section 14 andcontended that before a prosecution was launched the sanction of theGovernment Agent was necessary. Inspector Kandiah who had filedthe plaint stated to Court that after this case was instituted the Govern-ment Agent had issued a circular that he should be consulted before anyprosecution under section 14 was entered. Counsel for the accused there-upon moved for a date to summon the Government Agent and the Superin-tendent of Police, S. P., to produce this circular or cause it to be producedand the learned Magistrate postponed the trial for 21.12.51.
On that date the case proceeded to trial. Inspector Ekanayake whohad inspected the premises on 23.7.51 admitted that he had not obtainedthe Government Agent’s sanction to prosecute the accused. When hewas questioned about the circular to which Inspector Kundiah had referredon 20.11.51 he claimed privilege adding that he was not aware of thiscircular. Such want of candour is much to be deplored.
The accused in his evidence said that the excess was due to the customof the trade when purchasing rubber to pay up to the nearest pound—anything less than 8 ounces being disregarded and anything over 8 ouncesbeing reckoned to be a pound. The Rubber Storekeeper of E. Coates &Co., Ltd., gave evidence testifying to the existence of such a custom,and the learned Magistrate in his judgment has said that the suggesfioncannot be entirely “thrown overboard”, adding however, “accordingto the custom of the trade in buying rubber there should be some deficitstoo ”. But he did not consider the explanation with reference to the“ offence ” of the accused because he disposed of the matter on the assump-tion that the accused was guilty whatever his explanation mightbe.•
SWAN J".—Silva v. Ehanayahe
237
At this stage I think I should reproduce section 14. It reads asfollows :—
“ Whenever the weight of rubber found on the premises of a licenseddealer does not agree with the weight which, according to his books,ought to be on such premises, he shall be deemed to be guilty of anoffence against this Ordinance ;
Provided that if he satisfies the Government Agent that such dis-crepancy is due to natural causes, or has arisen through some bona fidemistake, or owing to some loss, the Government Agent may directthat no prosecution shall be instituted against the licensed dealer. ”
The first point taken by Mr. Perera on behalf of the accused is that theprosecution must fail because it has not established a discrepancy betweenthe weight as found by Inspector Ekanayake and the weight accordingto the accused’s books. In this connection he has drawn my attentionto the case of Wimcdaguneratne v. W eerasekera 1 where my brother Pulletook the view that an offence under section 14 could not be establishedexcept upon an examination of all the books required to be kept by alicensed dealer under the Ordinance. Undoubtedly the section uses thewords “ according to his books, ” and the side note speaks of “ discrepancybetween weight of rubber in licensed premises and weight according tobooks ”. But I do not think there is any special magic in the use of theword “ books ”. The Interpretation Ordinance tells us that words inthe singular number shall include the plural and vice versa. It is alsoprobable that a licensed dealer doing business on a large scale will needmore than one book which under section 9 he “ shall keep ” and “ whichshall be supplied to him by the Government Agent ”. Again it is notinconceivable that the declarations in forms C and D referred to in section8 (1) and illustrated in the schedule may be bound so as to appear likebooks. It should be noted that under section 8 (5) these declarationshave to he preserved for a period of one year and are as much liable toinspection as the book referred to in section 9. It will also be seen thatin section 10 which provides for the inspection of licensed premises thewords used are “ to call for, inspect and take extracts of any book requiredto be kept by this Ordinance ”. It is clear that “ any book ” includes thedeclarations in forms C and D. Again I find that in Section 15 which dealswith cases where the inspecting officer is refused admittance the phraseused is “ dealer’s books ” which description also clearly includes thedeclarations in forms C and D..
In my opinion a licensed dealer is required to keep only one “ book ”,namely, the book referred to in section 9 and generally called, I believe,the Rubber Sales Register. It may be that he keeps the declarations inbook form. It may also be that he keeps his own private set of books—journal, day book and ledger. But if on an inspection under section 10it is discovered that there is a discrepancy between the weight shown inthe Rubber Sales Register and that found by the inspecting officer thedealer would be deemed to be guilty of an offence against the Ordinance
1 {1951) 63 N, L, R, 93,
238
Abdeen v. Paramaaivcm Pillai
within, the meaning of section 14. Possibly this discrepancy can beexplained ; but that is a matter upon which the dealer must satisfy theGovernment Agent if he desires to avert a prosecution.
X shall now deal with the second point taken by Mr. Perera. He didnot contend that.the sanction of the Government Agent was a conditionprecedent to a prosecution but he submitted that the prosecution in thiscase was contrary to the spirit of the proviso in section 14. The accusedhad no opportunity of avoiding or staying the prosecution. It wasentered on 24.7.61 within twenty-four hours of the alleged offence. Whenthe existence of the proviso was. brought to the notice of the Courtneither the Police nor the Magistrate made any effort to stay proceedingsso as to give the accused an opportunity of availing himself of the proviso.A prosecution under section 14 should be so launched and conducted asnot to make the proviso entirely nugatory. That the accused endeavouredto explain the discrepancy to the Government Agent is borne out bythe letter 3> 1. Here, too. he was thwarted ; for in letter "D 1 the writersays “ there may be something in what you say but the case has gonerather far now for me to interfere at this stage ”.
I quash the conviction. The Police may initiate fresh proceedings ifso advised.
Conviction quashed.