019-NLR-NLR-V-30-LETCOUNT-v.-BABUN-et-al.pdf
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1988.
Present: Drieberg J.
LETCOUNT v. BABUN et id.
256a—P. C. Colombo, 27,143.
Customs Ordinance—Removal of a boat from drain Jetty—Unlawfulpossession—Wharf or quay—Ordinance No. 17 of 1869, s. 131a.
The removal of a boat anchored in the sea near a grains jetty doesnot amount to a removal from a wharf or quay within the meaningof section 131a of the Customs-Ordinance.
A
PPEAL from a conviction by the Magistrate of the JointPolice Court of Colombo.
U. Weerasinghe (with R. C. Fonseka), for accused, appellants.June 19,1928. Dbiebebg J.—
The appellants were arrested by the Harbour Police in the earlyhours of the morning while in possession of a rowing boat No. P 58(in which they had approached some ships) for which they couldnpt satisfactorily account and which was reasonably suspectedto have been stolen. They were convicted and sentenced undersection 131a of Ordinance No. 17 of 1869, the material portions ofwhich are as follows :—
“ Any person who within the limits of any port is found or'isproved to have been in possession or in charge of anyarticle which is suspected to have been stolen from any
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ship, boat, quay, warehouse, or wharf of any part of this 1*38.Colony may be charged with being, or having been, inj.
possession of property which is reasonably suspected to j||f~^f,have been stolen; and if such person does not give an Babunaccount to the satisfaction of the Police Magistrate asto haw he came by such article, and the Police Magistrateis satisfied that, having regard to all the circumstancesof the case, there are reasonable grounds for suspectingsuch article to have been stolen, such person shall beguilty of an offence . . .
The Police later ascertained that the boat belonged to H. S.
Perera, a boat contractor, who had four boats which were mooredwith chains and anchors near the Kochchikade Grain Jetty. Theseare his words :—Bastian Perera who is the superintendent of H. S.
Perera’s boats says “ she was properly moored with chains andanchors at her proper moorings near the Kochchikade Grain Jetty ”and had been cast drift.
The learned Magistrate has rightly rejected the explanation ofthe first appellant that he took the boat with the permission ofJohn Perera, an employee of H. S. Perera.
The boat is said to be worth Rs. 250. In my opinion, wherethere is not merely suspicion of the aritcle in question having beenstolen, but, as in this case, positive evidence that it was stolen,it would be more appropriate to charge the offender with theoffence of theft, but apart from this the conviction cannot stand,for the boat was not removed from any “ ship, boat, quay, ware-house, or wharf.”
I presume this case was regarded as one of a removal from awharf or quay. A wharf, however, has got a recognized meaning.
In the early statutes it meant “ a broad place near to a creekor hithe of water, upon which goods and wares are laid, which areto be shipped and transported from place to place.” (Terrnes de laLey.)—Stroud, Title Wharf.
It is also extended to any structure or platform built on theshore of a harbour and extending from shore to deep water so thatvessels might lie by it and receive and discharge cargo. See Ohour,
Vol. II., Art. 4095, and 21 HaUbury, Art. 704, and the cases therecited.
A quay is nothing more than a landing place.
The Grain Jetty at Kochchikade can rightly be described as awharf or quay, but I do not think that theVemoval of a boat mooredor anchored in the sea near it can be said to be a removal from awharf or a quay.
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1928. The appeal is therefore entitled to succeed, and I set aside theDarsBEBO J. conviction, of the appellants. I have not found it necessary to-— deal with the other aspects of the case, but I may say that thesecond appellant would in any oase have been entitled to an acquittal.There is nothing to show that he had a dishonest intention in theremoval of the boat as he was merely acting under the orders ofthe first appellant, who employed him for the purpose.
Set aside.