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ALFRED APPUHAMY v. DE SILVA
NLR57V404
1956 Present : Sansoni, J.
ALFRED APPUHAMY, Appellant, and D. G. A. DE SILVA
(S. I. Police), Respondent
S. C. 1,337-M. C. Colombo, 19,507
Lorry-Carriage of goods in excess of maximum load-Weigh-bridge-Is evidence of
its accuracy necessary ?-Motor Traffic Act, No. 14 of 1951, ss. 190, 216 (1)
(a).
The accused was charged with having carried on a lorry goods in excess of the
permitted maximum load, in breach of Section 190 read with Section 216
(1) (a) of the Motor Traffic Act. The prosecution witnesses stated that an
excess weight of 2 tons and 7 lbs. was ascertained by means of a weigh-bridge.
No evidence was called for the defence.
Held, that it was open to the Court to hold that the load in the lorry was 2
tons and 7 lbs. in excess, even though the weigh-bridge had not been tested for
over four weeks prior to the day when the lorry with its load was weighed on it.
APPEAL
from a judgment of the Magistrate's Court, Colombo.
Stanley de Zoysa,
with P. Ranasinghe, for the accused appellant.
Daya Perera, Crown Counsel, for
the Attorney-General.
Cur. adv. vult.
March 20, 1956. SANSONI, J.-
The accused, who was the driver of lorry No. I C 2540, was convicted on a charge
of having carried 2 tons 0 cwts 0 qrs 7 lbs. of goods in excess of the weight
which the lorry was licensed to carry, in breach of S. 190 read with S. 216 (1)
(a) of the Motor Traffic Act No. 14 of 1951. The prosecution witnesses stated
that the lorry in question was weighed with its load of vegetables at the
Grandpass weigh-bridge, and the excess weight thus ascertained. An Engineer of
Messrs. Avery & Co. gave evidence that the weigh-bridge in question was
maintained by his firm and that it was last tested on 28th June 1955 ; the
offence was detected on 2nd August 1955.
No evidence was called for the defence. The accused's Proctor submitted that the
charge had not been established as the accuracy of the weigh-bridge at the time
in question had not been proved. The learned Magistrate accepted the evidence of
the Engineer who had spoken to having tested the machine. He also commented on
the absence of any evidence for the defence and rejected a suggestion that the
lorry carried only a small quantity of chillies.
In appeal it was urged that the accused should have been acquitted in view of
the judgment of Soertsz, A.J., in Soysa v. James Singho 1[(1935) 38
N. L. R. 12.], where the learned
Judge said that it was desirable that a loadometer (which was the machine used
in that case) should be tested soon after it had been used, to see that it was
accurate at the crucial time. In Siman v. Miskin 2[(1936) 38 N. L. R. 239.], Koch, J., expressed a
similar opinion in regard to a stop watch which had been used to detect a case
of exceeding the speed limit. If these decisions are binding on me I should have
no alternative but to allow this appeal. Those decisions also have the support
of the Divisional Court judgment in Melhuish v. Morris 3[(1938) 4 A. E. R. 98.], which laid down that
before a speedometer reading can be acted upon there must be evidence of the
accuracy of the speedometer. Charles, J., in that case said :
" the case rested upon the accuracy of the speedometer, which had not been
tested . . . . it does not matter if five officers glued their eyes to the
speedometer if evidence is not given as to its accuracy ".
Learned Crown Counsel drew my attention to the later judgment of the Divisional
Court in the case of Nicholas v. Penny 1. In that case the accused was charged
with exceeding the speed limit of thirty miles per hour. The evidence against
him was that of a Police Constable who followed the accused's car for a distance
of 4/10ths of a mile at an even distance, and found that the speedometer in the
Police car showed an e\en speed of forty miles per hour. Lord Goddard, C.J.,
considered the question whether it was necessary as a matter of law that the
Court must have ev
