121-NLR-NLR-V-22-WAMBECK-v.-MOHIDEEN.pdf
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1831*Present: Schneider A.J.
WAMBECK v. M0B3DEEN.
583—P. G. Chamhacheheri, 10,587.
Forest Ordinance, 1907, s. 52.—Possession of avaram baric—-No evidencethat bark was collected from Crown land—“ Found m or broughtfrom forest ”—Presumption.
The accused was charged with having illicitly cut and collectedfrom Crown land some 85 bags of avaram bark without a permitissued by a Forest Officer, an offence in breach of section 21 (1) (c)of the rules framed under the Forest Ordinance, 1907 (Gazette,May 10, 1918). There was no evidence that the accused didactually remove the bark from Crown land. The accused, ,whenasking for a permit to remove the bark which he had stored, statedthat he removed the bark from private lands. The evidence for theprosecution was to the effect that accused could not have collectedtherefrom more than 32 bags. The Magistrate held that accusedhad failed to repel the presumption arising under section 52 of theForest Ordinance that the bark in the,remaining 63 bags was theproperty of the Crown.
Held, that the presumption created by section 52 did not arise,as there was no evidence that these 53 bags contained bark “ foundin or brought from a forest.”
fyiHE facts appear from the judgment,
H. J. C. Pereira, K.G. (with him Arulanandan), for accused,appellant.
M. W. H. de Silva, G.G., for complainant, respondent.
July 22, 1921. Schneider A.J.—
The accused was charged that between February and August,1919, at Elephant Pass and Morasmoddai, he did “ illicitly cut andcollect from Crown land 85 bags of avaram bark without a permitissued by a Forest Officer,” and thereby committed an offence inbreach of section 21 (1) (c) of the rules framed under the ForestOrdinance, 1907, and dated April 23, 1918, and published in theGovernment Gazette of May 10, 1918, and punishable under section22 of that Ordinance. He was convicted of having possessed wrong-fully between February £.nd August , 1919, at Morasmoddai, 53 bags ofthe bark in question, the property of the Crown, which is describedas an offence punishable under section 22 of Ordinance No. 16of 1907.The description of the offence in the conviction is clearly wrong, noris any offence disclosed by that description, which is punishable
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cinder the law, mentioned by the Magistrate. I am at a lose tounderstand why the Magistrate departed from the language of theplaint and the reference to the law in it. Even if there is such anoffence as wrongfully possessing bark, the property of the Crown,there is no evidence that the accused possessed the number of bagsgiven at the place given and for the period named. But counselfor the appellant waived the objection he might rightly have urgedagainst the conviction for this reason, and argued the appeal uponthe ground that the evidence did not justify the conviction upon acharge of having out and collected the 85 bags of the bark withouta permit from a Crown land.
The date of the offence is stated to be between February andAugust, 1919. The plaint was lodged on February 25,1921, nearlytwo years after the first commission of the offence. The evidenceproves that the accused is a dealer in the bark in question, whichappears to be used for some commercial purpose, and that he hadcompeted unsuccessfully with a rival for the lease of the right tocollect the bark from certain Crown lands. The bark is collectedfrom a shrub which is to be found growing wild in private as well asCrown lands* the shrub being cut down to the ground for the collec-tion of the bark.
1921.
Bofpnmm
A.J.
Wombtck v.MotetUen
The accused on January 15, 1920, requested the AssistantConservator of Forests by petition (C 1} to grant him a permit toremove a quantity of the bark, which he stated he had collectedfrom private lands and stored at Morasmoddai and Elephant Pass.The Assistant Conservator of Forests held an inquiry on February21, 1920 (C 17). There is nothing in the notes of this inquiry toshow why the accused should not have been granted a permit. InC 2 a petition dated May 22, 1920, presented by the accused to theConservator of Forests, Sandy, he complained that the AssistantConservator of Forests had not granted him a permit. To this*petition the accused annexed documents giving particulars as tothe private lands from which he had collected the bark. Theevidence for the prosecution is that the accused could not havecollected any more than 32 of the 85 bags stored at Morasmoddai.The Magistrate has convicted the accused, holding that the accusedhad failed to repel the presumption arising under section 52 of theForest Ordinance that the bark in these balance 53 bags was theproperty of the Crown. I am unable to agree with the learnedMagistrate as regards his findings on the facts or as regards the law.As regards the facts, the prosecution is undoubtedly stale. Noexplanation has been offered for the delay of nearly two years beforethe prosecution was commenced. From the very outset theaccused’s story was that he had collected the bark from certainprivateiands and had also bought from villagers. The prosecutionhas called one Sinnetamby, who has stated that he collected the barkat the instance of the licensee under the Government, and had sold
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1921.the bark to the accused. He says ho did so as the accused paid him
——better, but that the accused did not ask him to collect. The'
evidence of Mr. Templer, tho Assistant Conservator of Forests, is-—-that he estimates the quantity of bark which could be collected
troin the number of bushes cut down or by looking at the stumps orsticks, and that he made his estimate from the stumps he found onthe lands ho inspected. There is also evidence furnished by thewitnesses for tho prosecution that from the stumps alone no estimateas to the quantity of the bark collected could be made, nor howmany branches any shrub had ; and that the shrubs are of differentsizes, some yielding more bark than others. Mr. Templer’s inspec-tion Was over six months after the bark had been collected by theaccused. It seems to me, therefore, that at the best the estimatewhich Mr. Templer could have formed is a very rough one, and maybe out by even 50 per cent, from the actual outturn. Mr. Templervisited but a few only of the lands, for the rest he relied upon thecorrectness of a permit for removal granted by an Udaiyar to theaccused. The prosecution has made no allowance for the barkwhich the accused purchased, apart from what he collected. Thereis no evidence that tho accused caused the bark to be collected inany Crown land. If one is to accept the figures given by the wit-nesses for the prosecution—such as Mr. Templer—the extent of-Crown land from which the 53 bags had been collected must havebeen considerable. In his evidence Mr.Templer-says that one blockof 20 acres would have yielded three bags only, another of 10 or 12acres two or three bags only, and yet there is no evidence that thoaccused had collected from any Crown land. In my opinion,therefore, the prosecution has failed to prove that any of the barkwas collected by the accused from Crown land. The Magistrate hasconvicted the accused mainly upon the presumption created by section52 of the Forest Ordinance, which he holds applies in the facts of thiscase. I cannot agree with him. What section 52 enacts is that whena question arises as to whether any “forest produce” is the propertyof the Crown, such produce shall be presinned to be the property ofthe Crown till the cpntrary is proved. “ Forest produce ” is definedin section 3 as including parts of plants (bark would come underthis description) “ when found in or brought from a forest.” Thereis no evidence whatever that these 53 bags contained bark found inor brought from a forest. The presumption does not arise. If aperson when found in possession of a bark readily procurable from ashrub growing in most gardens and of little value is under obli-gation to prove that he is lawfully in possession of that quantityback to a nicety, or the presumption would be that the bark is theproperty of the Crown, it would lead to some very astounding results.
I would, therefore,set aside the order of the Magistrate, and acquitthe accused.
Accused acquitted.