1917 Present : De Sampayo J.

MEEDIN v. JAYAWARDENE.

214-P. C. Colombo, 6,559.

Cattle trespass--failure to give notice of seizure-Is it an offence ? Penal Code, s. 289-Detention of cattle damage feasant-Possession of cattle without a voucher.

The failure on the part of a proprietor or occupier of land to give notice of the seizure of an animal is not an offence under the Cattle Trespass Ordinance, 1876, which can be punished under section 289 of the Penal Code. Such notice must be given if the owner or occupier desires to seek the remedy provided by the Ordinance for the recovery of damages caused by the trespass.

A person seizing and detaining cattle damage feasant is not guilty of an offence under section 8 of Ordinance No. 10 of 1898 for possessing the animal without a voucher.

THE facts appear from the judgment.

Garvin, S.-G., for the appellant.-A person seizing cattle is under a statutory duty to give notice of the seizure to the headman. The words of section 7 (Ordinance No. 9 of 1876) are, " Notice of the seizure shall be given."

The whole law on the subject of seizure of animals and the recovery of damages is now contained in the Ordinance. Failure to comply with the provisions of the Ordinance is punishable under section 289 of the Penal Code.

Possession of cattle without a voucher is prohibited by Ordinance No. 10 of 1898, section 67. P. C. Colombo, 5,674 (S. C. Min., February 11, 1917).

Canakeratne, for the accused, respondent.-The provisions of section 7 are only directory, and not imperative. The Ordinance has not taken away the common law rights. A person who seizes cattle damage feasant may bring an action for damages in a Civil Court or may proceed under the Ordinance. See Thaver v. Gray,1[(1882) 5 S. C. C. 60.] Gunaratna v. Salmon.2[1898) 1 Tam. 79.] The owner of cattle may pay the damages immediately, and then there will be no need to come to Court, and only if the proceedings are in a Court can the Court impose a fine. Ordinance No. 10 of 1898 only penalizes the sale or transfer of cattle without a voucher; there is no sale or transfer when a person seizes trespassing cattle.

Cur. adv. vult.

March 27, 1917. DE SAMPAYO J.-

In this case the accused was charged by the police, under section. 239 of the Penal Code, with having wilfully neglected or omitted to give notice of the seizure of a cow which had trespassed on his field, under section 7 of the Cattle Trespass Ordinance, No. 9 of 1876. To this the Police Magistrate added another charge, under section 8 of the Ordinance No. 10 of 1898, for possessing the cow  without a cattle voucher. The accused was ultimately acquitted on both the charges, and the Solicitor-General has appealed.

The point which is most strenuously pressed is that section 7' of the Cattle Trespass Ordinance, 1876. imposes a duty on a landowner in all circumstances to give notice of the seizure of an animal, and that as no punishment is otherwise provided for the neglect to perform that duty, the accused is liable to be charged under section 289 of the Penal Code, i am unable to agree with this contention. The section no doubt provides that notice of the seizure " shall " be given, but in my opinion the provision means, not that notice should be given as a matter of absolute statutory obligation, but that it should be given if the landowner desires to seek the remedy provided in the Ordinance for recovering the damages caused by the trespass. It appears to me that it only states a condition to be observed in order to obtain the benefits of the Ordinance. In this connection the Solicitor-General points out that under section 7 the Court in which proceedings for recovering damages are taken must, in addition to the damages and charges of keep, award a fine, and he contends that the imposition of a fine makes the trespass an offence on the part of the owner of the animal, and therefore the duty to give the not