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DE ALMEIDA v. ALOYSIUS PERERA
NLR42V193
1941 Present: Hearne, Keuneman and Wijeyewardene JJ.
DE ALMEIDA v. ALOYSIUS PERERA.
623-M. C. Pantidure, 7,086.
Motor lorry-Charge of possession M without a licence-Sale of car to be dismantled-Meaning of word " possession"-Motor Car Ordinance, No. 45 of 1938, s. 29 (2).
Where a person is charged, as registered owner, with having possessed a lorry for which a licence was not in force, it is open to him under section 29 (2) of the Motor Car Ordinance to prove that he did not possess the car during the material period.
The word " possess" in section 29 (2) means de facto possession, as understood in the Common Law.
THE accused was convicted under section 29 (1) of the Motor Car Ordinance, No. 45 of 1938, of having possessed in the year 1940 a motor lorry for which a licence was not in force at the said date.
The accused led evidence to prove that he was not in possession of the lorry in 1940, and that he had sold it in 1939 to be broken up for scrap iron.
The Magistrate held that in view of section 29 (2) of the Motor Car Ordinance the accused had to show that notice of non-user had been given by him or that registration had been cancelled.
E. S. Fernando, for accused, appellant.-The appellant was convicted under section 29 (1) of the Motor Car Ordinance, No. 45 of 1938. The point at issue is the interpretation of section 29 (2). Appellant admits that on the date in question he was the registered owner of the car but contends that he did not possess it. The car was dismantled in 1939 and had ceased to be a vehicle. Section 29 (2) is peculiar to the new Motor Car Ordinance, and there was no provision corresponding to it previously. The case of Colombo Municipal Council v. Perera will not, therefore, be in any way applicable.
The offence is created by section 29 (1) The sub-section (2) does not enlarge the scope of section 29 (1). It is possession in the ordinary sense which is contemplated. See, for example, section 18. The words in section 29 (2) should be given their ordinary and natural meaning. The presumption created by section 29 (2) is ,a rebuttable presumption.
H. V. Perera, K.C. (with him C. S. Barr Kumarakulasingham and S. P. C. Fernando), for complainant, respondent.-According to the scheme of the Ordinance the registered owner is to be regarded as the person who is in legal possession. The word " deemed " in section 29 (2) creates a fiction. The possession which is contemplated by the Ordinance after registration has taken place is different from physical possession; it is possession associated with ownership. See sections 12 (1) and 22. When a person's name is on the register he cannot be heard to say that he has transferred it to another except only under section 18 (2).
