Sanitary Inspector, Mirigama V. Thangamani Nadar

1953 Present: Nagalingam A.C.J.

SANITARY INSPECTOR, MIRIGAMA, Appellant, and
 THANGAMANI NADAR, Respondent

S. C. 1,274-M. C. Gampaha, 5,596
 

Evidence Ordinance-Section 106-'' Especially within the knowledge of any person "- Quarantine and Prevention of Diseases Ordinance-Contravention of Regulation 46-Burden of proof.

By section 106 of the Evidence Ordinance,

" When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. "

Held, that when the section refers to a fact as especially within the knowledge of a party, the term "especially" means "almost exclusively", if not " altogether exclusively ", within the knowledge of a party.

The charge that was preferred against the accused was under the Quarantine and Prevention of Diseases Ordinance alleging that he did " being permanently or temporarily resident in a building in which was a person affected with a contagious disease, to wit, small pox, fail to inform the proper authority forthwith in contravention of Regulation 46 of the Regulations made under the Ordinance ".

Held, that section 106 of the Evidence Ordinance did not cast on the accused: the burden of proving that he had given information to the proper authority until some prima facie evidence at least had been first led by the prosecution of the failure on his part to give the information.

The presumption of innocence casts on the prosecution the burden of proving every ingredient of an offence even though negative averments be involved therein.

APPEAL against an order of acquittal from the Magistrate's Courts Gampaha.

H. N. G. Fernando, Acting Solicitor-General, with A. Mahendrarajah,. Crown Counsel, for the Crown.

S. Nadesan, with T. K. Curtis, for the accused respondent.

Cur. adv. vult.

September 28, 1953. NAGALINGAM A.C.J.-

This is an appeal by the complainant with the sanction of the Attorney-General against an order acquitting the respondent of a charge that was preferred against him under the Quarantine and Prevention of Diseases Ordinance in that he did " being permanently or temporarily resident in a building in which was a person affected with a contagious disease, to wit, small pox, fail to inform the proper authority thereof forthwith in contravention of Regulation 46 of the Regulations made under the Ordinance ".

The reason for the acquittal of the accused was that there was no evidence placed before the Magistrate to show that he had failed to inform the proper authority of the presence of the person so afflicted with the disease. The learned Magistrate felt himself bound, as in fact he was, to follow a decision of this Court on almost an identical question. That was a prosecution under Regulation 45 of the same Regulations, where under a medical practitioner was charged with having failed to give information in writing to the proper authority stating the name of the diseased person, his residence and the nature of his disease; he was convicted but on appeal Keuneman J. set aside the conviction and acquitted the accused, holding that-

" Material evidence which should have been led was not in fact led,, namely that the accused failed to give information to the proper authority.

'304

Apparently the prosecution completely overlooked the necessity of this evidence until after the case was over. In the circumstances I set aside the conviction and sentence. " 1[ S. C. No. 449, M. C. Jaffna 21,445, S. C. Mins. 4.7.44.]

These observations are equally apposite to the facts of the present case.

The learned Acting Solicitor-General who appeared in support of the appeal, however, contended that that decision needed review, and contended firstly that it would be very inconvenient for the prosecutor to establish a failure on the part of an accused person to give the necessary information to the proper authority, which consists of a fairly large class of per

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