Rex v Kara (Criminal Appeal No. 129 of 1944) [1944] EACA 4 (1 January 1944)

### APPELLATE CRIMINAL

#### Before SIR JOSEPH SHERIDAN, C. J., and HORNE, J. بأمعتم ويتعتم الغاوا

#### REX, Appellant (Original Prosecutor)

# SULEMAN HABIB KARA, Respondent (Original Accused)

## Criminal Appeal No. 129 of 1944

Defence Regulations-Defence (His Majesty's Forces) Regulations, 1941, reg. 15 (1) (a)—Unlawful possession of military property—"On any pretence whatsoever"—Construction.

The facts appear sufficiently from the case stated.

Held (9-9-44).—That the meaning of the words "On any pretence whatsoever" was of the widest possible character and that the regulation was deemed to have been contravened<br>once the possession by an unauthorized person was proved whatever may be the reason<br>or excuse or pretext for such possession unless the regulation by proving that he came into possession in one of the ways referred to therein.

Case stated by the Resident Magistrate, Mombasa, on the application of the Honourable Attorney General.

By Reg. 15. (1) (a) of the Defence (His Majesty's Forces) Regulations, 1941. it is provided: $\frac{1}{2}$

"15. (1) Every person who—

(a) buys, exchanges, takes in pawn, detains, or receives from any person, on any pretence whatsoever;"

The accused was charged with an offence against reg. 15 (1) (a) of the Defence (His Majesty's Forces) Regulations, 1941, in that on the 12th day of March, 1944, at Mombasa, in the Coast Province he was found in unlawful possession of a Service revolver issued for the use of members of His Majesty's Forces.

At the hearing it was proved that the accused had received a W. D. revolver for safe custody and had retained it in the expectation that a sergeant of the Military Police to whom it belonged would collect it.

On behalf of the prosecution it was contended that the mere fact of being found in possession of a W. D. revolver constituted a breach of the regulation.

The learned Magistrate held that the word "pretence" in the expression "on any pretence whatsoever" in regulation 15 (1) $(a)$ implied deceit of some sort and that as the manner in which the accused had come by the revolver did not amount to any deceit his possession was not unlawful.

The question submitted for the opinion of the Supreme Court was whether the word "pretence", which appears in regulation 15 (1) (a) of the Defence (His Majesty's Forces) Regulations, 1941, implies deceit of some sort.

Solicitor General for the Crown.

A. B. Patel for the Respondent.

JUDGMENT.—It seems to us that the meaning of regulation 15 of the Defence (His Majesty's Forces) Regulations, 1941, for the purpose of this case stated is that an unauthorized person who detains military property on any grounds whatever and is found in possession of such property is deemed to have contravened the Regulation unless he proves that the circumstances of his possession are such as are set out in Regulation 15 (1). The fact that he proves that he employed no deceit in the manner in which he became possessed of the article or that he had every intention of returning it does not in our opinion afford a defence in law, though it may and possibly would in the present case be a matter of considerable importance in deciding what, if any, penalty should be inflicted. We say "any" because there may be cases where a magistrate may under section 36 of the Penal Code "without proceeding to conviction make an order dismissing" the charge." The meaning attributed to the words "On any pretence whatsoever" by the Magistrate is, in our view, wrong. The words in their context cannot have the restricted meaning given them by the Magistrate that provided there is no deceit in the manner in which the property is acquired there can be no offence. We hold that the meaning of the words is of the widest possible character and is that once possession by an unauthorized person is proved whatever may be the reason or excuse or pretext for such possession the regulations are deemed to be contravened unless the possessor takes himself out of the regulation by proving that he came into possession in one of the ways referred to in Regulation 15 (1).

The case is remitted to the Magistrate with this answer and a direction to proceed to determine the case according to law. It is for him to find on the facts of the case what if any penalty should be imposed.