059-NLR-NLR-V-48-SHERIFF-et-al-Appellant-and-BONGSO-S.-I.-Police-Respondent.pdf
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NAGAUNGAM AJ.—Sheriff v. Bongso.
71947Present: Nagalingam AJT.
SHERIFF et al, Appellant, and BONGSO (S.I., Police), Respondent122-125—M. C. Trincomalee, 5,547
Defence (Purchase of Foodstuffs) Regulations, 1942—Offence under—Arrestwithout warrant—Legality of such arrest.
An offence under the Defence (Purchase of Foodstuffs), Regulations,1942, is not a cognizable one.
A
PPEALS against four convictions from the Magistrate’s Court,Trincomalee.
S.N. Rajarcetnam, for the accused, appellants.
J.G. T. Weerardtne, C.C., for the Attorney-General.
Cur. adv. vult.
-April 1, 1947. Nagalingam A.J.—
There are four appeals in this case. The first accused-appellant was•charged with having escaped or attempted to escape from the custody•of Constable Silva and the other three appellants with having rescued
NAG ALIN GAM A.J.—Sheriff v. Bongso.
189
or attempted to rescue the first appellant from the custody of the constableand with having obstructed the constable in the discharge of his publicJunctions, namely> the conducting to the Police Station of the firstaccused-appellant who had been arrested for an offence of transportingrice without a permit. The point taken on behalf of all the appellantsis that the arrest and consequential custody of the first appellant wasillegal and that therefore the escape or attempted escape of the first■appellant from the custody of the constable and the action of the otherappellants in rescuing the first appellant or obstructing the constablecannot therefore be made the subject of criminal charges.
The case for the prosecution is that Constable Silva apprehendedthe first appellant in the act of transporting a large quantity of riceand took him into custody. The provision of law which prohibits thetransport of grain is said to be Regulation 4 of the Defence (Purchase offoodstuffs) Regulations, 1942 (page 54 of the Consolidated Reprint of•the Defence Regulations dated October 1, 1946) which will hereinafterbe referred to as the Purchase of Foodstuffs Regulations. LearnedCrown Counsel concedes that this is the only provision of law relativeto the subject. These Regulations do not declare an offence under themto be a cognizable one. It has, however) been stated that under Regula-tion 51 of the Defence (Miscellaneous) Regulations certain provisionstad been enacted making such an offence a cognizable one, but Regula-tion 51 has ceased to be law since February, 1946, so that at the date ofthis offence in October, 1946, an offence under the Purchase of FoodstuffsRegulations cannot be said to have been declared a cognizable one byany of the Defence Regulations. It has, however, been contended thatby the Food Control Amendment Ordinance (Cap. 132, page 70 of Vol. I.of 1941 Supplement) such an offence is made a cognizable one. Sub-jection 3 of section 6 of the principal Ordinance that is relied upon runsas follows : —
“ Notwithstanding anything- in the First Schedule to the Criminal
Procedure Code every offence under this Ordinance shall be a cog-nizable offence within the meaning of that Code ”.
It will be observed that the offence that is made cognizable is not oneunder the Defence Regulations but one under the Food Control Ordinanceitself. Learned Crown Counsel suggests that as there hre references tothe Food Control Ordinance in the Purchase of Foodstuffs Regulationsit is permissible to treat section 6 (3) of the Food Control Ordinance asextending to offences created by the Purchase of Foodstuffs Regulationsthemselves. This is an unwarrantable construction to be placed on astatute, especially a penal one. It may be useful to contrast the provi-sions of the Food Control Ordinance and the Purchase of FoodstuffsRegulations with those of the Control of Prices Ordinance, No. 39 of1939, and the Defence (Control of Prices) (Supplementary Provisions)Regulations, where these latter regulations substitute certain provisionsfor those in the Control of Prices Ordinance and declare that everyoffence under the Ordinance shall be a cognizable one within the meaningof the Criminal Procedure Code. Vide section 5 (10) of the Price ControlOrdinance as enacted in the Defence (Control of Prices) (Supplementary
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NAG AUNG AM AJ.—James Perera v. Godwin Perera.
Provisions) Regulations. It would, therefore, be seen that the Defence(Control of Prices) (Supplementary Provisions) Regulations extend theprovisions of the Control of Prices Ordinance and every offence in connec-tion with the control of prices is an offence under the Ordinance itselfand is declared a cognizable offence; but in regard to offences relating;to purchase of foodstuffs> certain offences are declared to be such underthe Food Control Ordinance and the orders made thereunder, whileothers are declared to be offences under the Purchase of FoodstuffsRegulations. Although offences under the Food Control Ordinanceare declared to be cognizable offences, there is no such provision in regardto the offences under the Purchase of Foodstuffs Regulations.
The resultant position, therefore, is that the arrest by Constable Silvaof the first appellant without a warrant was illegal and therefore theescape or the attempted escape of the first appellant cannot be regardedas an offence under section 220a of the Penal Code nor can the otherappellants be said to have committed any offence either under section220a or under section 183 of the Penal Code. I would, therefore, allowthe appeals and acquit the accused.
Appeals allowed.