Alfonce v. R., Crim. App. 738-D-70; 20/1/71; Saidi J.

 

Alfonce v. R., Crim. App. 738-D-70; 20/1/71; Saidi J.

The appellant was convicted of (1) Mining without authority contrary to Section 28 and 6 of the Mining Ordinance (Cap. 123), and (2) Willfully obstructing a police officer in the due execution of his duty contrary to Section 243(b) of the Penal Code. the driver of the appellant ‘s lorry was arrested when conveying a load of sand which had been dug from a restricted are on the appellant’s instruction, There was evidence that the Area Commissioner had permitted the residents of the area of whom the appellant was one, to dig sand from the area for building their houses. When the driver was arrested, he drove to the house where the appellant was. The police officer who made the arrest asked the appellant to allow the driver to drive the lorry to the police station and the appellant refused to give the driver such an order and he and the driver left.

Held: (1) “What is being claimed by the prosecution in this charge was that the appellant refused to allow the driver to drive the lorry to the police station. I do not think this could amount to obstruction. It would have been a different matter if the appellant had done anything to remove the lorry from where it was, or to remove the sand which was in it.” (2) “Turning to the charge of mining without a permit, the prosecution did not have a list of the persons who had been permitted by the Area Commissioner to dig sand from that pit for purposes of building houses and no evidence was adduced as to whether or not the name of the appellant was included in that list. The appellant says he was one of the persons permitted to dig and take sand from that common put and it is difficult to say that he is not entitled to say so.” (3) Appeal allowed and conviction quashed.