Aug.22,1911    Present: Lascelles C.J. and Middleton J.

THE KING v. SILVA.

92-D. C. (Crim.) Kalutara, 2,384.

Jurisdiction-Indictment under s. 8 (1) of " The Opium Ordinance, 1910 "-Objection to jurisdiction not taken in District Court- Test of jurisdiction of District Court-Forfeiture of property no test-Criminal Procedure Code, s. 11-Courts Ordinance, s. 73.

The accused was convicted by the District Court under section 8 (1) of " The Opium Ordinance, 1910 ". On appeal objection was taken to the jurisdiction of the District Court, and it was contended (a) that as the indictment did not specify the quantity of opium alleged to have been unlawfully possessed, it was open to the Crown to prove the possession of such a quantity of opium that the fine, at the rate of Rs. 250 for every ounce, would exceed the statutory limit of Rs. 1,000; and (b) that inasmuch as section 8 (1) requires the forfeiture of the opium in respect of which the conviction is had in addition to a fine, which may extent to Rs. 1,000, the offence is punishable with a more severe penalty than the District Courts are empowered to impose.

Held, (1) that the first objection would have been well founded if it had been taken at the District Court at the proper time.

A person indicted before the District Court, who has pleaded to the indictment without pleading to the jurisdiction, is not entitled to take exception to the jurisdiction of the Court afterwards. There is nothing in the language or context of section 73 of " The Courts Ordinance, 1889, " to show that the section has reference only to local jurisdiction.

Held, further, (2) that the second objection was unsound.

Section 11 of the Criminal Procedure Code fixes the jurisdiction of District Courts with reference only to imprisonment and fine. The forfeiture of an article in specie does not fall within the definition of a fine.

APPEAL from a judgment of the District Judge of Kalutara (T. B. Russell, Esq.). The accused in this case was charged under section 8 (1) of the Opium Ordinance of 1910 with having been in unlawful possession of opium, and was convicted and sentenced to pay a fine of Rs. 500, or to undergo in default six months' rigorous imprisonment.

Bawa, for accused appellant.-Offences under sections 7 and 21 of the Opium Ordinance are specially made triable by a District Court by section 28; that section enables the District Court in such cases to impose a penalty which it cannot ordinarily impose. An offence under section 8 is not specially made triable by the District Court.

Section 11 of the Criminal Procedure Code gives jurisdiction to a District Court to try offences which are punishable with imprisonment for a period not exceeding two years, or with a fine which does not exceed Rs. 1,000. An offence under section 8 of the Opium Ordinance involves a forfeiture of property. Forfeiture is a punishment under the Penal Code. The District Court had, therefore, no jurisdiction to try this offence. Under the indictment it was open to the Crown to have proved that the accused had over four ounces of opium. The offence in that event would have been one punishable with more than Rs. 1,000. In such a case the District Court would have no jurisdiction. Counsel referred to Ireson v. Whittle,1 Queen v. Fonseka,2 and Gunasekere v. Van Cuylenberg.3

Walter Pereira, K.C., S.-G., for the respondent.-Forfeiture of property is not a test of jurisdiction under section 11 of the Criminal Procedure Code. The reason why section 28 of the Opium Ordinance does not give jurisdiction to the District Court to try offences under section 8 is because the punishment provided by that section is only imprisonment for one year and Rs. 1,000 fine. In this case the Crown has not proved that the accused had over four ounces of opium. No objection was taken in the lower Court against the jurisdiction of the District Court. Section 73 of the Courts Ordinance enacts that an accused