SINNATURAI VANNIAH v. AHAMADO LEVAI et al.

Present: Mr. Justice Wendt and Mr. Justice Wood Renton.

SINNATURAI VANNIAH v. AHAMADO LEVAI et al.

P. C., Batticaloa, 2,136.

" Land at the disposal of the Crown "-Proof-Onus-Presumption- Amendment of substantial provision-Rules made under such provision-Construction of statute-Ordinance No. 10 of 1885, ss. 3, 44, and 72-Ordinance No. 1 of 1892, s. 14 (1).

Held, that in a prosecution for " felling and sawing timber on land at the disposal of the Crown without a permit " under the rules made under Ordinance No. 10 of 1885 the same degree of proof that the land is " land at the disposal of the Crown " is not required when the ownership of the land on which the offence is alleged to have been committed is not in dispute as that which may be necessary if the question whether it is Crown or private property forms a main issue.

Held, that where there is no serious contest as to title in a prosecution under the Forest Ordinance the evidence of forest officers and police headmen that the land on which the offence was committed was Crown land was sufficient proof that the land was land at the disposal of the Crown.

WOOD RENTON J.-To hold otherwise would be to reduce the penal provisions of the Forest Ordinance to a nullity.

Nugapitiya Mohandiram v. Sudalayandi (1 N. L. R. 102) and Amarasekera v. Baiyya (3 Browne 161) distinguished.

Section 14 (1) of "The Forest Ordinance, 1892"; (No. 1 of 1892) provides that in section 44 of the Ordinance of 1885 the term " timber " shall, unless the context otherwise requires, " include timber out in any land or property, whether the property of the Crown or any private individual."

Held, that this section of Ordinance No. 1 of 1892 applies to the rules framed under section 44 of Ordinance No. 10 of 1885 as well.

WOOD RENTON J.-If the amendment of section 44 by the Ordinance of 1892 is not to apply to the rules made under it, the amending provisions would be entirely nugatory.

Held, that under section 72 of Ordinance No. 10 of 1885, whenever a question arises as to whether any timber or forest produce is the property of the Crown, there is a presumption in favour of the Crown that it is the property of the Crown until the contrary is proved.

WOOD RENTON J-If a prima facie case is made out by the accused, the onus probandi will be shifted, and the Crown will be required to give strict proof of all the elements indicated in section 3.

WOOD RENTON J.-The Legislature has drawn a distinction between mere trespassers and persons asserting substantial claims of title. While the trespasser neither receives nor deserves any protection, the rights of the serious claimant of title are amply protected by section 72.

APPEAL from a conviction under Ordinance No. 10 of 1885.

The facts and arguments sufficiently appear in the judgment of Wood Renton J.

Bawa, for the accused, appellants.

Van Langenberg, A. S.-G., for the Crown.

Cur. adv. vult.

30th March, 1906. WOOD RENTON J.-

The two appellants were convicted in the Police Court of Kalmunai-first, of having felled and sawn Crown timber to the value of Rs. 200, in the proclaimed forest of Kallovadiya in the Batticaloa District, without a permit, in contravention of rule 14 of the rules of 19th January, 1887, made under " The Forest Ordinance, 1885 " (No. 10 of 1885), and published in the Government Gazette of 21st January, 1887; and secondly of having removed such timber in contravention of rule 2 of the rules of 80th April, 1900, made under the provisions of chapter V. of the Forest Ordinance, and published in the Government Gazette of 4th May, 1900.

The learned Police Magistrate sentenced each of the appellants to a fine of Rs. 100, or in default to six months' rigorous imprisonment on the first count, and to a fine of Rs. 25, or in default one month's rigorous imprisonment, on the second. Nine other men

were tried along with the accused on the same charges. A

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