127-NLR-NLR-V-56-S.-SINNATHURAI-Appellant-and-SUB-INSPECTOR-OF-POLICE-VAVUNIYA-Respondent.pdf
SANSON! J.—Sinnathurai v. Sub-Inspector oj Police, Vavuniya
509
1954Present: Sansoni J.S. SINNATHURAI, Appellant, and SUB-INSPECTOR OP POLICE,VAVUNIYA, Respondent
S. C. 566—M. C. Vavuniya, 26,585
Motor vehicle—Charge oj using it without revenue licence—Burden o] proof—MotorTraffic Act, No. 14 of 1951, as. 25, 226—-Evidence Ordinance (Cap. 11), as. 105,106.
In a provocation for using a motor vehiclo without revenue licence, in contra*vontion of section 25 (1) of the Motor Traffic Act, the burden lies on the accusedto prove that thero is a licence in force, once evidence of user has been led bythe complainant.
_/pPEAL from a judgment of the Magistrate’s Court, Vavuniya.
M. M. Kumarakulosingham, for the accused appellant.
II. II. While, Crown Counsel, for the Attorney-General.
Cur. adv. vull.
August Id, 1951. Sansoni J.—
The accused in this case was charged with having driven a motoromnibus “ on the public highway without there being in force in respectof the said omnibus a revenue licence ” in breach of section 25 (1) of theMotor Traflic Act No. 14 of 1951 and thereby committed an offencepunishable under section 226 of the Act. There was an alternative cliargeof having failed to carry the licence in a weather proof holder in breachof section 38 of the Act. The Magistrate convicted the accused on thefirst cliarge and acquitted him on the other after evidence had been given2*
610
8ANSON X J.—SinnafaurSt^ Sub-InapMtor of Police, Vavuniya
by the proseeating Inspector that the omnibus in question was stopped ona public road and no licence was produced although called for. Noevidence was led by the defence.
In appeal it was contended that the prosecution had failed to prove theessentials of the offence set out in seotion 26 (1) which runs :—“ No personshall possess or use a motor car for which a licence is not in forceMust the prosecution in such a case prove that a licence is not in forcein respect of the particular car or does the burden lie on the person whopossesses or uses the car to prove that there is a licence in force ? Icertainly think that the sub-section could have been worded more clearly,but I have no doubt that the burden lies on the possessor or user to provethat there is a licence in force, one© evidence of possession or user hasbeen led by the prosecution. It will be seen that this is a case of anabsolute prohibition followed by an exception in the case of cars in respect •of which there are licences in force. This construction of the sub-sectionis supported by the wording of sub-section (3) which reads :—
“ The possession by a dealer of a motor vehicle imported by himinto Ceylon for the purposes of sale shall be deemed not to be acontravention of sub-section (1) so long as the vehicle remains unsoldond is not used on any highway except vnder the authority of a dealer’slicence. ”.
Sub-section (5) reads :—
“ The possession of a motor vehiele by a person (not being a dealer)by whom the vehicle was imported into Ceylon shall be deemed not tobe a contravention of sub-section (1), if, but only if, that person hasapplied for a revenue licence and such application has not been finallydetermined. ”.
And sub-section (6) reads :—
“ The use of a motor vehicle which upon importation into Ceylon isused on a highway only for the purpose and in the course of removalfrom the Customs premises shall be deemed not to be a contraventionof sub-section (1). ”
These sub-sections create further exceptions. The rule which appliesis that a person claiming the benefit of an exception must prove theexistence of circumstances bringing the case within the exceptions.
Another reason why I would hold that the burden shifted on to theaccused after evidence of user had been led by the prosecution is theprinciple enunciated in R. v. Turner1. Bayley, J.,—“ I have alwaysunderstood it to be a general rule, that if a negative averment be madeby one party, which is peculiarly within the knowledge of the other, theparty within whose krowledge it lies, and who asserts the affirmative,is to prove it, and not he who avers the negative ”. These rules havebeen en. bodied in sections 105 and 106 of theEvidence Ordinance (Cap. 11).For these reasons I affirm the conviatkm and dismiss this appeal.
Appeal dismissed.
■1 5 M. and 8. 209.