( 824 )
Present : Akbar J.
INSPECTOR OF EXCISE, COLOMBO v. PETER.
1—P. C. Colombo, 5,446.
Excite Ordinance—Licence to tell liquor on ground floor of premises—
Storage of liquor in first floor—Unlawful possessionOrdinance
No. 8 of 1912, s. 45 (e).
Where a person who was licensed to sell foreign liquor on theground floor of certain premises stored liquor in' the upper floor,—Held, that he – was in possession of liquor in breach of generalcondition No. 27 applicable to Excise licences.
^J^PPEAL from a conviction by the Police Magistrate of Colombo.
Qoertsz (with RanawaTce), for accused, appellant.
Schokman, C.C., for complainant, respondent.
( 325 )
March 15, 1930. Arbar J.—1930
The accused was convicted by the Police Magistrate of the offence inspector «/of possessing foreign liquor in the upstair portion of building No. 26, ctfamtotrKayman’s gate, which was a place other than the place referred to peterin his licences, in breach of condition 27 of the general conditionsapplicable to Excise licences, punishable under section 45 (c) of theExcise Ordinance, No. 8 of 1912.
As the offence was nothing more than a mere technical offence,no punishment was passed on him, but according to the record hewas “ admonished.” I agree with the Magistrate that this is atrivial offence and no punishment is called for. But Counsel forthe appellant strenuously argued that the conviction was wrong inlaw.
The accused owns two licences, .one a wholesale licence for the saleof foreign liquor and the other a retail licence. In both theselicences he was authorized to sell foreign liquor ‘‘ at the premises .more fully described belpw, in the premises No. 26, Kayman’s gate
” subject to the general conditions applicable to all
Excise licences and certain special conditions, which are of noimportance to this appeal. At the bottom of these licences beforethe signature of the licensing authority we. find these words " grounddoor 26 feet 6 inches by 15 feet 2 inches; bounded, north by Mainstreet, east by No. 25, Kayman’s gate, south by wall of premises,and west by house No. 27, Kayman’s gate. There can be no doubtat all that the only place referred to in these two licences where theaccused was authorized to sell foreign liquor was the ground floorof No. 26, Kayman’s gate. The building is an upstair buildingwith one storey above the ground floor, and the foreign liquorbelonging to the accused was stored in this upper floor. Theprosecution argued that this storage of the liquor in the upperstorey was a violation of condition 27 applicable to all Exciselicences.
Condition 27 is as follows: —
The possession (save under and in accordance with the lawapplicable to unlicensed persons) or sale by any licenseeof any excisable article elsewhere than at the premisesto which his licence refers is prohibited.
The Police Magistrate has convicted the accused, because undersection 14 (e) no warehouse can be worked without a licence. Hewas of opinion after consulting the Oxford English Dictionary thatthe upper floor of No. 26, Kayman’s gate, was a warehouse, whichrequired a special licence. I do not agree with his reasons, becauseby section 15 (1) (b) what the legislature meant by a warehouse is
( 326 )
clearly indicated. Apart from this, the accused was not chargedwith a breach of section 14 (e) of the Excise Ordinance. The PoliceMagistrate seems to have forgotten that the charge against theaccused was a breach of the general condition 27 punishable undersection 47 (o). Although the Magistrate has gone wrong on thispoint, yet it is open to me to see whether the conviction can bejustified on the charge laid in the plaint. Mr. Soertsz argued thatthe premises referred to in the licences are the whole of No. 26,Kayman’s gate. But as "I have already pointed out, the particularplace where the accused was authorized to sell under the licenceswas described as the “ ground floor,” clearly distinguishing theground floor from the first floor. Mr'. Soertsz argued that a strictreading of the words “ ground floor ” would seem to indicate thatthe accused could only sell liquor on the surface of the floor andnowhere above it. This is an interpretation which no reasonableman would adopt. I do not think this interpretation is correctbecause the words ” ground floor ” when used with reference tobuildings, clearly mean the whole room on the ground floor. Weoften find advertisements stating that the ground floor or the firstfloor is to let. This does not mean that only the area of the groundfloor or the first floor is to be let. Any person would infer from suchan advertisement that a certain room or rooms on the ground flooror on the first floor is or are to be let. It seems to me, therefore, thatwhen the. accused stored the liquor on the first floor he was commit-ting a breach of general condition 27-. Mr. Soertsz then arguedthat general condition 27 did not apply to the accused's case. Icannot see how he can say this when, the licences of the accusedclearly stated that they were subject to the general conditionapplicable to all Excise licences. Then Mr. Soertsz argued thatgeneral condition 27 was idtra vires so far as licensed vendors wereconcerned and he based his argument on section 16 of OrdinanceNo. 8 of 1912. Section 16, however, does not apply to licensedvendors, and therefore so far as licensed vendors are concerned wemust look to the other sections of the Ordinance which are applicableto them. Section 24, paragraph (d), says that every licence is to bein such form and contain such particulars as the Governor maydirect generally or in any particular instance. General condition 27was made by the Governor under section 24 and will, therefore, bindthe accused. I think that the conviction was right but not for thereasons given by the Police Magistrate. The appeal is dismissed.
INSPECTOR OF EXCISE, COLOMBO v. PETER