096-NLR-NLR-V-62-A.-G.-FERNANDO-Appellant-and-THE-GOVERNMENT-AGENTKANDY-Respondent.pdf
502
Fernando v. The Government Agent, Kandy
I960Present : T. S. Fefnando, J.
A. G. FERNANDO, Appellant, and THE GOVERNMENT AGENT,
KANDY, Respondent
S. C. 21—M. C. Panwila, 1307
Motor vehicle—Charge of possessing a lorry without licence—Failure of accused to givenotice of non-user—Inference of guilt—Motor Traffic Act, No. 14 of 1951,ss. 16, 17, 18, 25 {1), 37.
In a prosecution for using a motor vehicle without revenue licence in contra-vention of section 25 (1) of the Motor Traffic Act the sole circumstance that theaccused had failed to give notice of non-user for the year in question is notmaterial if the accused establishes that the vehicle had already been disman-tled or rendered unserviceable and that what he possessed on the date specifiedin the charge had ceased to be a motor vohicle as contemplated by the Act.
A
xTA PPEAXi from a judgment of the Magistrate’s Court, Panwila.
No appearance for the accused-appellant.
M. M. Kumar ahulasingham, as amicus curiae, at the instance of the
Court.
T.M. K. Seneviraine, Crown Counsel, for the Attorney-General.
Cur. adv. vult
1 {1957) 68 N. L. R. 436.
T. S. FERNANDO, J.—Fernando v. The Government Agent, Kandy 503
September 13, 1960. T. S. Fernando, J.—
This appeal raises a point of some interest to owners of motor vehicles,
particularly motor vehicles which have become unserviceable.
x
The appellant is the registered owner of motor lorry bearing distinctivenumber IC. 512, the date of the first registration being 16th August 1949.Being a heavy oil motor vehicle, the appellant as registered owner wasliable to pay, in addition to the 1 icence fee for the yearly revenue licenceunder the Motor Traffic Act, 1951, the tax imposed by the Heavy OilMotor Vehicles Taxation Ordinance (Cap. 190). On 27th October 1956he applied to the Government Agent for a waiver of the heavy oil taxas from 15th December 1956 “ as the vehicle is being scrapped **—touse the language of the appellant appearing in his application. TheGovernment Agent caused an investigation to be made by the Police intothe condition of the vehicle and waived the tax as from 15th December1956 and that tax has not been claimed thereafter from the appellant.
The appellant gave notice of non-user for the year 1957 as required bysection 37 of the Motor Traffic Act, 1951. He failed to give a similarnotice in respect of the year 1958, but he has again given (on 30th De-cember 1958) notice of non-user P.2 in respect of the year 1959. In P.2winch is the printed form supplied by the licensing authority the appel-lant states that he does not intend to use the vehicle “ because •‘he vehiclehas been scrapped”. The charge framed in the present case against theappellant was that of possessing on 1st January 1958 motor lorry bearingnumber IC. 512 for which a revenue licence was not in force, a contraven-tion of section 25 (1) of the Act. In view of the charge which related tothe lack of a revenue licence for the year 1958, a notice of non-user for1959 is irrelevant. There was admittedly no notice of non-user given for1958, but the prosecution conceded that for the previous year (1957)a valid notice of non-user had been given to the licensing authority.This notice must have been given before 1st January 1957, but it wasnot produced by the prosecution. Had it been produced, the Courtwould have been in a position to examine the reason, if any, given bythe appellant for the non-user. This notice must have been given aboutthe time the appellant made application for a waiver of the heavy .oiltax in which application made in October 1956 he referred to the im-minent scrapping of the vehicle. Whether or not the appellant re-ferred in the notice of non-user in respect of the year 1957 to the scrap-ping of the vehicle, it has been proved in this case that the licensingauthority had been informed of the scrapping of the vehicle and hadcaused an investigation to be made into the condition of the vehicle. Theinvestigation was made by Police Constable Dharmalingam who testi-fied that he made an inspection of the vehicle in 1956 at the GovernmentAgent’s request and found that the lorry had been dismantled, that it wasnot serviceable and that it was not possible in his opinion to make itserviceable. The Village Headman of the area also testified that thelorry was unserviceable and that he had not seen the lorry running on
604 T. S. FERNANDO, J.—Fernando v. The Government Agent, K.andy
the road, in 1958. On the evidence in the case the only finding thatcould have been reached in regard to the condition of this motor vehiclein 1958 was that it was not serviceable.
Section 18 of the Act requires the Registrar to cancel the registrationof a motor vehicle if he is satisfied that the vehicle has been permanentlyremoved from Ceylon, or destroyed, or dismantled and broken up orotherwise rendered permanently unserviceable. The prosecution appearsto have contended in the Magistrate’s Court that the appellant failed toapply for cancellation of the registration referred to in section 18, and thelearned Magistrate in his order states that if the vehicle is unserviceable itis for the registered owner to get the registration cancelled “thereby puttingonce and for all an end to any doubt that he is in possession of that vehiclewhich is unserviceable ”. It is hot necessary for the purposes of thepresent appeal to consider the question whether a cancellation of theregistration of a motor vehicle must bo preceded by an applicationtherefor made by the registered owner. The prosecution in this caserelying on sections 16 and 17 of the Act under which the registered ownerfor the time being is deemed to be the owner of the motor vehicle claimedto maintain the charge framed against the appellant on the sole circums-tance that he had failed to give notice of non-user for the year in question,viz. 1958. As the only finding of fact which the Court could have reachedon the evidence in the case in regard to the condition of the “ vehicle ”was that it had been either dismantled or rendered unserviceable,that finding in my opinion disposed of the allegation in the charge that theappellant possessed this lorry on the date specified, viz. 1st January1958. What the appellant possessed on that date were certain partsof the lorry ; he possessed a dismantled lorry, a lorry which had beenrendered unserviceable, the circumstances strongly indicating that ithad been rendered permanently unserviceable ; in short, what the appel-lant possessed on 1st January 1958 had ceased to be a motor vehicle ascontemplated by the Act.
The prosecution therefore failed to establish the charge laid againstthe appellant and he should, in my opinion, have been acquitted. Theconviction and sentence are set aside.
I should add that I am grateful for the assistance given by learnedcounsel who appeared as amicus curiae at the instance of the Court.
Appeal allowed.