015-NLR-NLR-V-51-DINAPALA-Appellant-and-INSPECTOR-OF-POLICE-GALLE-Respondent.pdf
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BASNAYAKE J.—Dinapala v. Inspector of Police, Galle.
1949Present: Basnayake J.
DINAPALA, Appellant, and INSPECTOR OF POLICE,GALLE, Respondent
S. C. 954—M. C. Gaik, 8,889
Explosives Ordinance—‘Keeping fireworks—Breach of Special Order—Chapter140—Sections 28 and 7.
A flpocia! order undor soction 28 of the Explosives Ordiwmco does notcome within the ambit of sect-ion 7, and a broach of the order is notpunishable under that or any other section.
^.PPEAL from a judgment of the Magistrate, Galle.
S. Jayawickrama, for accused appellant.
R.A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 23, 1949. Basnayakk J.—
The accused-appellant has been convicted of the following chargesand ordered to pay a fine of Rs. 150 on the first charge and a fine ofRs. 50 on the second :—
“That you did, within the jurisdiction of this Court, at Dadalla,on February 20, 1948, keep fireworks containing a mixture ofpotassium chlorate and aluminium powder in breach of theSpecial Order No. 1 made under section 28 of Chapter 140
BASNAYAKE J.—Dinapola p. Inpppctor of Police, Galle69
of the New Legislative Enactments of Ceylon published inGovernment Gazette No. 8,295 of June 11, 1937, and therebycommitted an offence punishable under section 7 of Chapter140 of the New Legislative Enactments of Ceylon,
“ At the same time and place aforesaid the above-named accuseddid keep explosives exceeding sixty pounds in a place exceptin a store for explosives either lawfully existing or licensedunder the Explosives Ordinance for keeping such explosivesor in premises registered under the Explosives ordinancefor keeping such explosives in breach of section 15 (1) of Chapter140 of the New Legislative Enactments of Ceylon and therebycommitted an offence punishable under section 15 (3) of Chapter140 of the New Legislative Enactments of Ceylon.”
The facts relating to the charges are as follows:—
On February 20, 1948, Sub-Inspectors Schokman, Jayasekera andSeedirt visited the fireworks factory of one Deonis, a brother-in-lawof the accused. The accused was in the factory at the time activelyengaged in the manufacture of fireworks. The Sub-Inspectors wentfrom there along with the accused to a tea boutique about a quarter of amile away. They recovered therefrom 175 boxes of triangular crackerscalled “batta”, 58 packets of crackers, and 14 boxes of mixed fireworks.Some of them were in, and others on the top of, a glass show case of theboutique. The Government Analyst examined specimens of thesecrackers and fireworks and be identified potassium chlorate and aluminiumpowder in all the specimens.
I shall now discuss the charges in their order. The first charge allegesan offence punishable under section 7 of the Explosives Ordinance. Thematerial portion of that section reads: “The breach of any of theregulations made under the provisions of this Ordinance shall constitutean offence punishable on conviction, by a fine not exceeding two hundredrupeesIt is not alleged in the charge that the accused
committed a breach of any of the regulations made under the Ordinance.The allegation is that he committed the breach of a special order madeunder seotion 28. Does a special order come within the ambitof the words “ any of the regulations made under the provisionsof this Ordinance” in section 7? Section 3 provides for themaking of rules, section 5 provides for the making of regulations,and seotion 6 gives both classes of delegated legislation uponpublication in the Gazette the same force as if they had beeninserted in the Ordinance. There is a further clasB of delegatedlegislation spoken of as “ special rules ” in section 18. Then comesthe class of delegated legislation known as “ special order ” empoweredby section 28. The expressions “ rule ”, " regulation ”, “ special rule ”and “ special order ” are not defined in the Ordinance. But it is clearfrom the context of the Ordinance that those expressions have not beenused indiscriminately to mean the same thing. It seems to me that in theExplosives Ordinance the Legislature intended to create four classes ofinstruments of delegated legislation. Delegated legislation by “ special
70BA SNA YAK?-) J. • Di'.anala v. Inspector oj Poitce, Oalie
order ” is rare in Ceylon although in English legislation the term “ specialorder ” is “ used with bewildering variety 1I have no doubt in myown mind that a “ special order ” under section 28 does not come withinthe ambit of section 7. The breach of a special order is therefore notpunishable under the latter section. The breach of a special order notbeing punishable under section 7 or any other section of the ExplosivesOrdinance, the conviction on the first- charge cannot be sustained andmust be set aside.
The (Ulogation in th* ooeonri nharge is that the accused “did keepexplosives exceeding sixty pounds in a place except in a store for explosiveseither lawfully existing or licensed under the Explosives Ordinance forkeeping such explosives or in premises registered under the ExplosivesOrdinance for keeping such explosives”. That allegation does notbring him within the pale of any offence under the Ordinance or anyother enactment.
The accused had a licence to stock explosives in the premises in whichthey were found although the premises were not registered for the storageof explosives. It is not alleged that he kept explosives in breach of hislicence. He has therefore committed no breach of section 15 of theExplosives Ordinance. The conviction on this charge too cannot besustained and must be quashed.
When he imposed a fine of Rs. 50 on the accused in respect of the secondcharge the learned Magistrate does not appear to have had before himthe provisions of section Id. It is therefore necessary that I shoulddraw his attention to that section. The consequences of a breach ofsection 15 are the forfeiture of all or any part of the explosives foundin premises in whioh they are kept contrary to its terms and a muTimimipenalty of one rupee for every pound of exlposives so kept. Althoughthe word used in section 15 for the purpose of indicating the pecuniaryforfeiture that may be imposed thereunder is “ penalty ” and not “ fine ”,I am of opinion that the “ penalty ” prescribed therein is in fact whatin the language of the Criminal Procedure Code is a fine. The definitionof the expression " fine ” in section 2 of the Criminal Procedure Codeis in ray view wide enough to embrace the pecuniary forfeiture providedin seotion 15 under the nomenclature of “penalty”. All the penalprovisions of the Explosives Ordinance, save section 7, speak of penalty.The use of the expression “ fine ” in that section does not in my viewafford a sound basis for holding that the expression “ penalty ” shouldbear a different meaning. According to Wharton’s Law Lexicon apenalty is a sum, also called a fine, recoverable in a Court of SummaryJurisdiction from a person infringing a statute. In my view a penaltyimposed under section 16 may be recovered in the same way as a fine.The Customs Ordinance is another Ordinance wherein the words “ penalty ”and “fine” are used indiscriminately. In that Ordinance specialprovision is made (section 139) t-hat all penalties and forfeitures incurredthereunder may be recovered by civil suit in the name of the Attorney-General. It is unnecessary for the purposes of this case to considerwhether penalties under the Customs Ordinance may also be recoveredin the manner prescribed in the Criminal Procedure Code.
1 Report of the Committee on Ministers' Potters, p. 27.
ORATIAEN J.—Wije v. Abeysundero (Excite Intpector)71
In passing I wish to say a word about the way in which the ExplosivesOrdinance is described in the charges. It is referred to as “ Chapter 140of the New Legislative Enactments of Ceylon ”. The correct way todescribe an Ordinance in the Revised Edition of the Legislative Enact-ments is by its short title. It is sufficient to refer to the ExplosivesOrdinance as “the Explosives Ordinance” without more. So in thecase of any other Ordinance in the Revised Edition.
The appeal is allowed and the acoused is acquitted.
Appeal allowed.