De Silva (Sub Inspector Of Police) V. Piyadasa

1945 Present: Jayetileke J.

DE SILVA (S. I., POLICE), Appellant, and PIYADASA.,
Respondent.

1,336-M. C. Trincomalee, 1,773.

Defence (Miscellaneous) Regulations-Removal order issued by Sub-Area Commander under rule 4 (3) passed under Regulation 27-Power of Magistrate to consider the reasonableness of the order.

Where the accused was charged with having entered the Trincomalee Special Area in contravention of an order served on him by the Sub-Area Commander-

Held, that the Magistrate had no power to inquire whether there were reasonable grounds for the opinion which the Sub-Area Commander had formed that the presence of the accused within the Special Area was prejudicial to the efficient prosecution of the war. A removal order issued under rule 4 (3) which was passed under Defence (Miscellaneous) Regulation 27 must be presumed to have been properly made until the contrary is proved.

APPEAL, with the sanction of the Attorney-General, against an order of acquittal entered by the Magistrate of Trincomalee.

A. C. Ameer, C. C, for the complainant, appellant.

No appearance for the accused, respondent.

Cur. adv. vult.

December 14, 1945. JAYETILEKE J.-

This is an appeal with the sanction of the Attorney-General.

The accused was charged with having entered the Trincomalee Special Area in contravention of an order served on him by a competent authority (Brigadier A. E. Hunt) to quit and remain out of the said area. The order was issued under rule 4 (3) appearing in Gazette No. 9,169 dated

September 9, 1943, made under section 27 (b) of the Defence (Miscellaneous) Regulations. The order was in these terms : -

" By virtue of powers vested in me by Rule 4 of the Trincomalee Special Area Rules, 1943 (made by His Excellency the Governor under Regulation 27 (b) of the Defence (Miscellaneous) Regulations and published in the Ceylon Government Gazette, No. 9,169 of September 9, 1943), I, Brigadier A. E. Hunt, R .A. Commander, H.Q. Sub-Area, Trincomalee, being satisfied that your presence within the Trincomalee Special Area, as defined for the purpose of the aforesaid rules, is prejudicial to the maintenance of public order and the efficient prosecution of the war in which His Majesty is at present engaged, do hereby require you to quit the Trincomalee Special Area before 8 P.M. on the 5th July, 1945, by Railway train.

" And I do hereby require you to take notice that, in the event of your failing to comply with the requirement set out in the foregoing paragraph or in the event of your re-entering the Trincomalee Special Area without having first obtained written permission on that behalf from me or from the person for the time being holding the office of Commander, H.Q. Sub-Area, Trincomalee, during the continuance of the war, you will be liable under Rule 7 of the aforesaid rules, to be arrested without a warrant by any police officer and to be removed from the Special Area, and to be detained in custody pending such removal ".

The evidence shows that the accused was a procurer and that the order was made to safeguard the troops against venereal disease. In acquitting the accused the Magistrate said-

" I recalled Chief Inspector Arendsz to ascertain the reason for the order and he says that the accused is a pimp and the order was made in order to safeguard the troops from contracting venereal disease. In my opinion this cannot be described as prejudicial to public order or the efficient prosecution of the war ".

His view seems to be that there is no reason why troops who are suffering from venereal disease should not fight, and fight well. Brigadier A. E. Hunt, the Commander of the Sub-Area, however seems to think that the proper place for troops suffering from venereal disease is not the fighting line but the Hospital and that if troops contract venereal disease the efficient prosecution of the war must necessarily be prejudiced.

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