088-NLR-NLR-V-46-CAROLIS-APPU-Appellant-and-A.-G.-A.-HAPUTALE-Respondent.pdf
■982KEUNEMAN J.—Carolis Apptt and A. G. A., Haputale.
IMSPresent: Keaneman J.
CAROLIS APPIJ, Appellant, and A. G. A., HAPUTALE, Respondent.
197—M. C. Badulla-Haldumtnulla, 1,452.
Defence (Purchase of Foodstuffs) Regulations, 1942—Charge of transportingkurakkan without a permit—No reference made tn charge to the Gazettein which the regulation is published—Validity of charge.
Where the transport of kurakkan without a permit is made an offenceby an amendment to the Defence (Purchase of Foodstuffs) Regulations,1942, and no reference is made in the charge to the Gazette in which theamending regulation was published.
Held, the failure to refer to such Gazette was fatal to the conviction.
A
PPEAL from a conviction by the Magistrate of Badulla-Haldum-mulla.
H. V. Perera, K.C. (with him L. E. J. Fernando) for accused appellant.
M.Spencer, C.C., lor Attorney-General.
Cur. adv. vult.
March 27, 1945, Keuneman J.—
This accused was charged with having transported seven bushels ofkurakkan in lorry No. CE 2699 without a permit issued by the Govern-ment Ageist, Uvia, and Deputy Food Controller, Bad/ulla, or anyoneauthorized by him in breach of Regulation 4 of the Defence (Purchaseof Foodstuffs) Regulations, 1942, published in Gazette No. 9,004 ofSeptember 11, 1942, and that he had thereby committed an offencepunishable under section 52 (3) of the Defence (Miscellaneous) Regulations.
It has been pointed out here that the Gazette referred to, namely 9,004of September, 11, 1942, referred only to the transport of country paddyand country rice and did not make it an offence to transport kurakkanat all. It is true that there is a later Gazette No. 9,103 of March 26, 1943,which makes it an offence to transport country paddy, country rice orkurakkan except under a permit. It is obvious that if Gazette No. 9,004is looked at, the accused is not guilty of any offence. The question iswhether the failure to refer to the Gazette No 9,103 which does constitutethe offence is fatal.
A Divisional Court in Sivasampu v. Juan Appu 1 discussed this questionamong others and Soertsz J., who wrote the judgment in the case, statesas follows:“Inasmuch as the rules of subordinate legislation require
publication in the Gazette for acquiring the force of law, there should besome material before the court to show that the condition precedent hasbeen satisfied. In our view there is sufficient compliance with the require-ment if in the complaint or report to the Court there is reference to theGazette in which the rule involved appears for in that case under section114 of the Evidence Ordinance, the Court may presume that the officialacts of stating the rule and citing the Gazette have been regularly per-formed “. He went on to hold thereafter that the production of the
Gazette in the case was not necessary.
1 3S N. L. R. 369.
DIAS, COMMISSIONER OP A88IZE.—The King *. Walimunige AmarU. 26S
Now, iu the present case it does appear .that there is no reference to theGazette which may constitute an offence of transporting kurakkanand T think that this defect is one which invalidates the conviction.It is not merely a matter of making a mistake with regard to the numberand the date or either of them, but it goes further and declares that theauthority for the charge is a Gazette which in point of fact has no appli-cation to the case at all. In the circumstances I set aside the convictionin this case and discharge the accused.
Conviction set aside.