1916. Present : Ennis J. and Schneider A.J.

THE KING v. HARMANIS et al.

142 and 143-D. C. (Crim.) Kalutara, 2,985.

Conviction for removal of timber without a permit under Forest Ordinance, No. 16 of 1907-Subsequent charge under s. 367 of the fiscal Code-Interpretation Ordinance, s. 8-Autrefois convict.

A person convicted under the Forest Ordinance for removing timber without a permit may be again tried and punished for theft of the same timber.

THE facts appear from the judgment.

A. St. V. Jayewardene, for appellants.

Garvin, S.-G., for the Crown.

Cur. adv. vult.

August 25, 1916. ENNIS J.-

The question referred to a Court of two Judges was whether a person who had been convicted or acquitted under the Forest Ordinance for removing timber without a permit could be again tried and punished for theft of the same timber. Mr. A. St. V. Jayewardene argued that section 8 of the Interpretation Ordinance, No. 21 of .1901, is a bar. That section runs: -

Where any act or omission constitutes an offence under two or more laws, whether either or any of such laws came into force before or after the commencement of this Ordinance, the offender shall. unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws, but shall not be liable to be punished twice for the same offence.

Mr. Garvin argued that the word " act " must be read in a wider sense than the mere physical act, and must be considered with the other elements which cause the act to be an offence. This is undoubtedly so, because the act of removing timber does not by itself constitute an offence under any law. Removing it " dis-- honestly " or " without a permit " (with certain exceptions) does, i.e., it is the act coupled with a dishonest intention or a mala fide omission which constitutes the offence. An act considered with its concomitant circumstances may constitute an offence under one law and a different kind of offence under another law, as in the present case. The suggestion of my brother Schneider that the word " same " in the last clause is the keynote of the section

seems to me to afford a construction of the section without any part being redundant, and to explain the occasion for the section considered as an addition to the provisions of the Penal and Criminal Procedure Codes. In the light of this suggestion, Mr. Gavin's contention would hold good, i.e., the act of theft of timber would be a different act from the act of removing timber without a permit, although the element of "removing timber " is common to both. On this construction the present case does not fall within the section. The exact point has not been considered, so far as I am aware, but the effect of the section was considered in Modder v. Perera,1 where it was held that the offence of theft of a postal parcel under section 370 of the Penal Code is substantially the same as the offence specified in section 62 of the Post Office Ordinance of 1908, and section 8 was held to apply. The point for consideration in applying section 8 seems to be whether or not the act which constitutes an offence under one law is substantially the same as the act which constitutes the offence under another law. The principle was applied in two Indian cases, Queen v. Dalapald Rau 2 and Erran Redi,3 apparently without the aid of any law similar to section 8 of the Ceylon Ordinance No. 21 of 1901. I have, however, only a note and not the report of the latter case. I would dismiss the appeal.

SCHNEIDER A.J.-

On December 13, 1914, the accused-appellants were detected when transporting by water certain logs of timber which had been illicitly felled by some unknown person from a Crown forest. The value of the timber was Rs, 200.45. The accused were then charged in case No. 33,243 of the Police Court of Kalutara: (1) With removal of this timber without a permit, in contravention of rule No. 2 d