025-NLR-NLR-V-72-NALLARAKKUPILLAI-Appellant-and-M.-I.-KHALEEL-Fisharies-Sub-Inspector-Respon.pdf
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ALLES, J.—Nallarakkupillai v. Khalccl
1968Present : Alles, J.
NALLARAIvKUPILLAI, AppeUant, and M. I. KHALEEL(Fisheries Sub-Inspector), Respondent
-S'. C. 1123/1967—M. C. Puttalam, 3265
fisheries Ordinance {Cap. 212)—Sections 11 and 15—Offence of possessing fishdynamited in Ceylon u-aters—Ingredients of the offence.
In a prosecution under section 15 of the Fisheries Ordinance for possessingfish killed by using dynamite in contravention of section 14, it is incumbenton tho complainant to prove, inter alia, that tlio fish was dynamited in Coylonwaters.
Appeal from a judgment of the Magistrate’s Court, Puttalam.
Colvin R. de Silva, with M. L. de Silva and Mrs. Sarath Mutteluwegama,■ for tho accused-appellant.
Lalith Rodrigo, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 3, 1968. Alles, J.—
The accused-appellant in this case was charged and convicted withhaving in his possession 150 pounds of ‘ seraya ’ fish, knowing or havingreasonable cause to believe that the said fish was killed in contraventionof section 14 of the Fisheries Ordinance, by using an explosive substance,to wit, dynamite, and thereby committed an offence punishable undersection 26 of the said Ordinance.
Section 14 of the Fisheries Ordinance reads as follows :
“ No person shall in Ceylon waters use any poisonous, explosiveor stupefying substance for the purpose of poisoning, killing orstupefying any fish.”
‘ Ceylon waters ’ includes—
(а)the territorial waters of Ceylon ; and
(б)all public, bays, rivers, lakes, lagoons, estuaries, streams,
tanks,- pools, ponds and channels and all other public inlandwaters.”
In order therefore to establish the charge under section 15 in this casethe prosecution must establish beyond reasonable doubt—
that the accused was in possession of dynamited fish ;
that he knew or had reason to believe that the fish was dynamited ;
and
ALLES, J.—Xallarakkupillai m Khalecl
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that the fish had been dynamited in Ceylon waters as defined inthe Ordinance.
In this case, I am satisfied that the accused, who has been describedas a Pish Mudalali, had in his wadiya at Kalpitiya a large quantity offish which he knew or had reason to believe to have been killed with theuse of d3'namite. Indeed, his entire conduct, at the time the FisheriesInspector visited the wadij'a, is indicative of his guilty knowledge—he•denied the presence of the fish in his wadiya and when the fishwas discovered, he denied it was dynamited fish and commenced toplead with the Inspector. A sample of fish was removed from hiswadiya, examined by the Doctor and found to have been killed withdynamite.
Counsel for the appellant however submits that an essential ingredientof the charge has not been established by the prosecution inasmuch asthere, is no evidence that the fish was dynamited in ‘ Cejdon waters’.The accused admitted that the fish was bought byiiis agents at Uncha-.mulla, 12 miles from Kalpitiya along the sea-coast and transported byboat to his wadiya. It was not disputed that Unchamulla is within■Ceylon waters but Counsel for the appellant submits that there is noadmissible evidence that this fish was dynamited at Unchamulla and theevidence of the Fisheries Inspector that “ dynamiting of fish is frequentin Unchamulla and Dutch Bay ” is only hearsay. It is not clear whether■the Inspector was personally aware of this fact or whether he obtainedthis information from some other source, particularly as this evidencewas elicited only in re-examination. In spite, therefore, of the admission•of the accused that the fish came from Unchamulla and that the fish wasfound to be dynamited, the evidence is not sufficient to establish thatthe dynamiting took place at Unchamulla. One cannot exclude thepossibility of the fish being dynamited outside territorial waters, brought-to Unchamulla, purchased by the accused’s agents and then transportedfrom Unchamulla to Kalpit-ij-a.
It is not an offence to have in one’s possession dynamited fish knowing■or having reason to believe that it has been killed by the use of explosives.The offence under section 15 can only be committed if the prosecutionproves further that the fish was dynamited in Ceylon waters. Theprosecuting authorities have not given their mind to this essentialingredient of the offence and failed to lead evidence on this essentialmatter. If there was a modicum of admissible evidence on this point, Iwould not have hesitated to affirm the conviction. I
I am therefore constrained to hold that in this case, the prosecutionhas not proved beyond reasonable doubt that the fish had been dynamitedin * Ceylon waters ’ and consequently the charge under section 15 of theOrdinance has not been established. I allow the appeal, set aside theconviction and acquit the appellant. .
Appeal allowed.