1949    Present  : Pulle J.

MAJEED et al., Appellants, and MANNAMPERUMA (P.S.), Respondent.

 S. C. 913-914-M. C. Hatton, 13,733

Protection of Produce Ordinance (Cap. 28), Section 4-Charge of unlawful possession of tea leaf-Particulars which such charge should contain.

A proper charge under section 4 of the Protection of Produce Ordinance should set out particulars of the circumstances from which one can reasonably suspect that the produce was not honestly in the possession of the person accused.

APPEALS from a judgment of the Magistrate's Court, Hatton.

Colvin R. de Silva, with M. M. Kumarakulasingham, for accused appellants.

E. R. de Fonseka, Crown Counsel, for Attorney-General.

Cur. adv. vult.

November 21, 1949. PULLE J.-

The two accused-appellants, who have each been sentenced to a term of six months' rigorous imprisonment, appeal from a conviction under section 4 of the Protection of Produce Ordinance (Cap. 28). The material portion of section 4 reads as follows: -

"Whenever anyone is found in possession of any of the following descriptions of produce, that is to say: -

(a) any .... tea leal (whether in a natural or manufactured state);

(b), (c), (d), ....

under such circumstance that there is reason to suspect that the same is not honestly in his possession, and he is unable to give to the court before whom he is tried a satisfactory account of his possession thereof, such person shall be guilty of an offence, and shall be liable on summary conviction before a Magistrate, to imprisonment of either description for a period not exceeding six months, or to a fine not exceeding two hundred rupees or both.

On the 6th June, 1949, Police Sergeant Mannamperuma of Maskeliya made a report to Court under section 148 (1) (b) of the Criminal Procedure Code on which the charge set out below was based. That charge reads: -

"you are hereby charged that you did within the jurisdiction of this Court at Upcot Road, Maskeliya, on the 3rd June, 1949, were found in possession of a gunny bag containing fifty-six (56 lbs.) of manufactured tea and were unable to give a satisfactory explanation of their possession thereof and thereby committed an offence under section 4 of the Protection of Produce Ordinance (Cap. 28)".

It would seem from the terms of the section that it is the duty of the prosecution to allege circumstances which give rise to a reasonable suspicion that the produce in question was not honestly in the possession of the accused. There is no burden on the accused to give to the prosecution a satisfactory account of the possession. The burden to satisfy the court, and not the prosecution arises only after the prosecution has established the existence of the circumstances which give rise to the suspicion referred to in section 4. In my opinion the charge framed against the appellants is misconceived. A proper charge under the section ought to have set out the particulars of the circumstances from which one can reasonably suspect that the produce was not honestly in the possession of the person accused. It was for the court thereafter to find whether the accused had satisfactorily accounted for his possession.

The need for giving particulars of the circumstances in the charge becomes apparent when one considers that it ought to be open to an accused person upon being charged to submit that on the facts set out in the charge sheet no offence is disclosed. Secondly, he is entitled to have proper notice of the circumstances giving rise to suspicion of dishonest possession in order that he may be in a position to adduce evidence to prove the non-existence of the circumstances.

Learned Counsel for the appellants argued that the charge was bad inasmuch as it stated that the tea was found in the possession of the appellants at Upcot Road, Maskeliya