[1940] EACA 7
The court held that in prosecutions under the Gold Trading Ordinance for buying gold without a licence, the possession of a licence is a fact especially within the knowledge of the accused. Section 105 of the Indian Evidence Act, as amended and applied to Tanganyika, places the burden of proof on the accused to show...
Source-derived case information.
- Citation
- [1940] EACA 7
- Parties
- Appellant: Fateh Ali Shah Mushhad; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 115 of 1939
- Procedural Posture
- Criminal Appeal / Appeal From High Court of Tanganyika
- Outcome
- appeal dismissed
- Judges
- Sheridan CJ, Webb CJ, Whitley CJ
- Legal Topics
- Burden of Proof, Licensing Offences, Evidence Act Application, Gold Trading Regulation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fateh Ali Shah Mushhad
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal From High Court of Tanganyika
Legal Issues
- 1 Whether the burden of proving possession of a gold trading licence lies with the accused under section 105 of the Indian Evidence Act as applied to Tanganyika.
- 2 Whether the appellant discharged the onus of proof by showing he possessed a licence to buy raw gold.
Ratio Decidendi
The court held that in prosecutions under the Gold Trading Ordinance for buying gold without a licence, the possession of a licence is a fact especially within the knowledge of the accused. Section 105 of the Indian Evidence Act, as amended and applied to Tanganyika, places the burden of proof on the accused to show that he possesses a licence. The appellant did not suggest or provide evidence that he was a licensed dealer, and it was not denied that he bought raw gold. Therefore, the appellant failed to discharge the onus of proof required by law, and the conviction was upheld. The appeal was dismissed as there was no error in the application of the law regarding the burden of proof.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
13 paragraphs
Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB, C. J. (Tanganyika)
## REX, Respondent
## FATEH ALI SHAH MUSHHAD, Appellant Criminal Appeal No. 115 of 1939
(Appeal from decision of H. M. High Court of Tanganyika in appellate jurisdiction)
Criminal Law—Evidence—Onus of proof—Fact specially within the knowledge of accused—Indian Evidence Act, section 105, as amended and applied to Tanganyika-Proof of licence or absence thereof under the Gold Trading Ordinance, Chapter 104, Laws of Tanganyika.
Appellant appealed from a conviction and sentence in respect of a charge that he not being a licensed gold dealer did buy raw gold contrary to the pro-<br>visions of section $5(1)$ of the Tanganyika Gold Trading Ordinance, Cap. 104. There was no evidence that the appellant had no licence to buy raw gold but the appellant in giving evidence at no time even suggested that he was a licensed dealer. It was not denied that the appellant had bought raw gold.
Held (26-1-40).—(1) That the possession of a licence under the Ordinance was a fact specially within the knowledge of the appellant and therefore that the onus of proof of it lay on him:
(2) that the matter might have been decided on the ground that it was for the appellant to prove that he came within the exception to the law by showing that he had taken out a licence.
Appeal dismissed. $\bullet$
Barret for the Appellant.
Phillip, Crown Counsel, for the Crown.
JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—Our opinion is that in a case of this kind where a person is charged with buying gold without having a licence it is for that person to discharge the onus of proof by showing that he has a licence. The case falls within the exact language of section 105 of the Indian Evidence Act as amended and applied to Tanganyika. There was much consideration given in the High Court to whether the fact of the possession of a licence was or was not "especially within the knowledge of such person", the appellant. The learned Chief Justice held that the fact was especially within his knowledge. While we agree with this finding our view is that the case might have been decided on the earlier words of the section to the effect that it was for the appellant to prove that he came within the exception to the law by showing that he had taken out a licence. This is the only point of law involved in the appeal, so the appeal which is an appeal from the High Court of Tanganyika sitting in its appellate jurisdiction is dismissed.
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