DINGIRI MUDIANSE v. PINSETUWA.P. 0., Ratnapura, 22,810.
Arrack Ordinance No. 10 of 1844, ss. 40 and 46—Draining fermented toddywithout license—Precautions against fermentation.
Monokbiff, A.C.J.—If a person draws without a license toddy froma palm tree and does not take precautions to prevent the same fromfermenting, he will be held to have infringed sections 40 .and 46 of theOrdinance No. 10 of 1884.
P. C., Negombo, 23,568, 21st Jnly, 1898, disapproved.
HIS was an appeal by the complainant with the sanction of theAttorney-General. The accused was charged “that he did
on the 10th February, 1902, at Kirindigala, draw or cause to bedrawn fermented toddy without a license, and thereby committedan offence punishable under sections 40 and 46 of Ordinance No. 10of 1844.” The complainant’s peon found a pot on a kitul tree. Hehad it taken down, and found in it 11 gills of fermented toddy.The accused was present at the time, and took no precautions toprevent fermentation. On the footing of this evidence, theMagistrate (Mr. Loftus) issued summons for the 24th February,but on that day he took no evidence, but made the following note:“ Complainant has no case (vide decision in P. C., Negombo,No. 23,558*). Case dismissed.”
Bawa for appellant.—The judgment of Lawrie, J., in theNegombo case* was not intended to protect unlawful drawing oftoddy. Mr. Lawrie expressed his opinion that the offence of draw-ing toddy is not completed until the pot is brought down from thetree. In the present case it was brought down. His Lordship'sview, however, is not warranted by the Ordinance. JusticeClarence, in Perera v. Charles (9 S. C. G. 19}, draws a clear distinc-tion between encouragement to crime and facilities for defence.
* P. C., Negombo, 23,558.
21st July, 1898. Lawrie, J.—
In my opinion, the offence of drawing toddy is not completed until the pot oftoddy is brought down from the tree, and the liquid is found to be fermentedand is illegally retained in possession.
If the owner of the tree or the toddy-drawer expected to find it only sweettoddy, and it contained fermented toddy, if'the bark had been put in, but it wasnot sufficient or had not worked, or if by an oversight no bark had been put in,the 'owner or drawer might throw away the fermented toddy in obedience to thelaw, or from fear of prosecution.
I cannot presume an offence until it be committed. Until the act of drawingbe completed the offence has not been committed. I therefore set aside theconviction and acquit the accused.
( 15 )
The Ordinance does not encourage persons to draw toddy, but if theyare charged it makes the fact that the toddy is sweet a good defence,ting showing that the intention of the Ordinance is not to getpossession of fermented toddy. Here no precautions were takenat all to prevent fermentation. That stage has not been reachedwhen evidence as to whether or not the omission to use the barkwas an oversight or deliberately intended may be taken.
Cur. adv. vvh.
April 25th, 1902. Moncbeiff, A.C.J.—
The appellant is charged with drawing or causing to be drawnfermented toddy, and with thereby having committed an offencepunishable under sections 40 and 46 of Ordinance No. 10 of 1844.The Magistrate in a somewhat brief memorandum says that“ the complainant has no case (vide decision in P. C., Negombo,No. 23,558*). Case dismissed.” The complainant appealed. Thecase to which the Magistrate refers is one in which the opinionwas expressed that, when toddy is drawn from a palm tree into apot attached to the tree, there is no drawing within the meaningof the Ordinance until the pot has been severed from the tree andbrought down to the ground. I am not quite able to understandwhy toddy should be the less drawn because the pot into which itis drawn is attached to the tree.
The Magistrate, while citing and following this opinion, didnot keep his eyes open to the opinion of Mr. Justice Clarence,which apparently has always been accepted as law: I refer to thecase of Perera v. Charles (9 8. C. C. 29), in which the Magistratehad come to the conclusion that inasmuch as the Legislature hadprovided that the restrictions as to the drawing of toddy should notapply to sweet toddy, it was no offence to draw toddy from a tree,because toddy is not fermented until it is drawn. It is obviousthat that could not be the meaning of the Legislature. It cannotbe supposed that for the pure pleasure of drafting the sections , ofthe Ordinance, the Legislature would go to the trouble of makingprovisions with no sense in them. Mr. Justice Clarence has, Ithink, taken the ‘only possible view of the law, which I think ismore or less expressed in section 47 of the Ordinance. That sectionwithdraws the restriction from sweet toddy, and goes on to providethat people should not be convicted of drawing toddy without alicence or permit unless the Court is satisfied that in drawing suchtoddy they have omitted to take ordinary precautions to preventthe same from fermenting, so that, as I understand the matter, if
See note on page 14.
( 16 )
a person draw6 toddy from a tree, and does not take precautionslor tlje purpose of preventing fermentation, and fermentation doestake place, he will be held’.to have infringed the provisions of theOrdinance, unless he has'Obtained a license for the purpose.
In this case a pot of toddy was on a Mtul tree. The first witness,who was the renter’s peon, found it on the tree and had it takendown, when it was discovered that it contained fermented toddy.I think the Magistrate was mistaken, and that the order of acquittalmust be set aside, and the case sent back to the Police Courtin order that evidence may be taken in due course.
DINGIRI MUDIANSE v. PINSETUWA