THE MUDALIYAR , PITIGAL KORALE NORTH , v.a KIRI BANDA

077-NLR-NLR-V-12-THE-MUDALIYAR-,-PITIGAL-KORALE-NORTH-,-v.a-KIRI-BANDA.pdf

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1900.October 8.
[Full Bench.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justice Wood Benton, and Mr. Justice Grenier.THE MUDALIYAR, PITIGAL KORALE NORTH,v. KIRI BANDA.P. C., GhUaw, 29,537.
Forest—Clearing—Burden of proving that the forest is not included in areserved or village forest—Evidence Ordinance {No. 14 of 1895),s. 106—Ordinance No. 16 of 1907, a. 21 (1).
In a prosecution under section 21 of Ordinance No. 16 of 1907,or the rules in force under that section, the burden of -proving thatthe forest in which the offence is alleged to have been committedis “ not included in a reserved or village forest ” lies on the accused.
A
PPEAL by the accused from a conviction under section 21 ofOrdinance No. 16 of 1907. The case came on for hearing
before Wood Renton J., who referred it to a Full Bench. The factsand arguments sufficiently appear in the judgments.
Chilly, for the accused, appellant. .
Walter Pereira, K.C., S.-G., for the Grown.
Cur. adv. vult.
October 8, 1909. Hutchinson G.J.—
Tliis is an appeal reserved for the decision of three Judges. Thequestion upon which our decision was required by Wood Renton J.,who reserved the appeal, is whether in a prosecution under section21 of Ordinance No. 16 of 1907, or the rules in force under thatsection, the burden of proving that the forest in which the offence isalleged to have been committed is “ not included in a reserved orvillage forest ” lies on the prosecution.
The enactment is that “ no person shall clear, set fire to, or break
up the soil ofany forest not included in a reserved or village
forest, except in accordance with rules made by the Governor inCouncil.” The defendant was convicted of clearing some forestland. There was no evidence as to whether or not the forest wasincluded in a reserved or village forest; so that, if the burden ofproving that it was not so included was on the prosecution, he oughtto be acquitted.
The Evidence Ordinance enacts in section 105 that “ when aperson is accused of any offence, the burden of proving the existenceof circumstances bringing the ease within …… any special
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exception or proviso contained in anylaw defining the
offence is upon him; and the Court shall presume the absence ofsuch circumstances.”
The prosecution contends that the words “ not included,” &o.,are a special exception such as is intended by the enactment of theEvidence Ordinance. I think that they are. They are merelyanother way of saying :t unless it is inoluded in a reserved or villageforest.” The appellant is proved to have cleared land in a forest;that is an offence, unless the forest has been proclaimed as “ reservedor village,” or unless he has a permit; and the proof of the exceptionis on him. He contends that the words “ not included,” &c., arenot an exception out of the generality of the term “ forest,” butthat the offence is clearing land in a particular kind of forest, andthat the prosecution has to prove that the forest is of that kind.I do not think so. It is a mere question of the meaning of theEnglish words. My opinion is that the burden of proving thatthe forest is not included in a reserved or village forest is on thedefendant, who relies on that defence.
Wood Renton J.—
I think that the words “ not included in a reserved or villageforest” in section 21 (1) of Ordinance No. 16 of 1907 are in the natureof an exception within the meaning of section 105 of the EvidenceOrdinance (No. 14 of 1895). If a person charged under that sectioncould show that the forest in question belonged to either of thecategories to which the clause above cited relates, he would defeatthe immediate proceedings against him. In addition to that, as Ipointed «ut in my interlocutory judgment of September 17 last inthis case, it may be easier to justify a clearing in a reserved forestthan in one not so reserved; while, as regards a village forest, amember of the village community, for whose benefit it was consti-tuted, might, in the absence of any prohibitory rule made undersection 16.of Ordinance No. 16 of 1907 on the subject, set up a claimof right to effect clearings in it with success. In my opinion, whenonce the Crown has proved the fact that a clearing has been effectedin a “ forest,” it rests with the accused to defeat that charge, if hecan, by showing that it is a reserved or village forest. I do notthink that there is any hardship in this interpretation of the law.The Crown could not readily adduce negative proof on the pointwhich the Courts would accept, and persons who have a mind toclear forest land may fairly be required to make sure of their legalposition before commencing operations.
I would dismiss the appeal.
Grenier A. J.—
I agree that the words .” not included ” are in the nature of aspecial exception within the meaning of section 105 of the Evidence
1909.
October 8.
Hctchihson
C.J.
1909.
October 8.
Grbnier
A.J.
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Ordinance. Once the Crown proves that a person lias broken up
the soil, or cleared, or set fire toany forest, tire onus is
clearly on that person to justify his act, and claim immunity fromit by proof that the land is included in a reserved or village forest.If he can produce a permit, or if he can show that the land is hisprivate property, there will be an end to the prosecution. Suchpositive proof is directly in his power to adduce, and he ought tobe made to adduce it instead of calling upon the prosecution toestablish a negative; and I think, therefore, that the words ofsection 105 threw the burden of proof on the person charged toshow the existence of circumstances which would exonerate himfrom the legal consequences of his act.
Appeal dismissed.