ABRAHAMS C.J.—Inspector of Excise v. Palanimuttu.
1938Present: Abrahams C.J.
INSPECTOR OF EXCISE v. PALANIMUTTU.
44—P. C. Nuwara Eliya, 12,860.
Excise Ordinance, No. 8 of 1912—Illicit possession of arrack—Quantity ireexcess of what o?ie may possess—Two inmates in house—Presumptionregarding possession.«
Where a person is charged with illicit possession of arrack he is notentitled to be acquitted merely because there are two persons in thehouse and the quantity of arrack found in it is within the amount per-missible for two persons to possess.
Excise Inspector, Horana v. Mungo Nona (9 C. L. W. 168) followed.
Excise Inspector Holsinger v. Francina Fonseka (1 Ceylon Law Weekly225) not followed.
^^PPEAL from a conviction by the Police Magistrate of Nuwara Eliya.
F. A. Tisseverasinghe (with C. T. Olegasegaram.), for accused, appellant.
E. H. T. Gunasekera, C.C., for complainan’t, respondent.
'Cur. adv. vult.
March 4, 1938. Abrahams C.J.—
The appellant was convicted of the illicit sale of arrack and also ofpossessing a quantity of arrack beyond the amount permitted to oneperson. The principal witness for the Crown was the usual decoy, whowas searched in order to see that he had none of the contraband articleon him before starting on his expedition, given a rupee note, the numberof which was taken by the Excise Inspector, and then sent off accompanied!by an Excise Guard, who left him at the door of the appellant’s houseand returned to inform the Excise Inspector that his mission had beencompleted. The Excise Inspector then went to the house and discoveredthe decoy seated on a chair with a glass of arrack in his hand and theappellant standing by him. On seeing the Excise Inspector the appellantsnatched the glass out of the hand of the decoy and flung the contentsaway. A search of the house led to the discovery of the rupee note con-cealed and also to the discovery of a quantity of arrack in excess of thatallowed to a single person. The appellant’s defence was that he was notthere at all but the Magistrate disbelieved him and convicted him.
It is not contended that the Magistrate’s finding of fact cannot “besustained but it is argued that the conviction ought not to stand becauseafter the Excise Guard left the decoy outside the house of the appellantit was possible for the decoy to have gone off and obtained a supplyof arrack from somewhere else which he introduced into the house ofthe appellant. It is sought to support this argument by a decision ofMr. Justice Dalton in an unreported case, No: 769, P. C., Colombo,20,338 (S. C. M. of November 14, 1934), in which- that learned Judgesaid that it was essential that the decoy should be searched before going39/29
376ABRAHAMS C.J.—Inspector of Excise v. Palanimuttu.
off on his mission in order to prevent his having some of the contra-band article on his person. It is- somewhat ingeniously argued that inthe case before me the preliminary searched was nullified by the fact thatthe Excise Guard lost sight of the decoy after he had left him at the doorof the house of the appellant. If Mr. Justice Dalton’s decision meansthat in all cases where a search of the decoy is not made the accused isentitled to an acquittal irrespective of the facts of the case, then I mustrespectfully disagree with him. Evidence of the sale must be taken intoconsideration. If the decoy is apparently a truthful person then it maybe that corroboration is called for but if he is deemed to be a truthfulperson, then it seems to me that the question of his search becomesimmaterial unless the defence is that the decoy brought the contrabandarticle in with him. In this case no such defence was raised. Thereforethe Court has to see whether there is satisfactory evidence that a sale tookplace and that seems to have been the fact here. Apart from that theconduct of the appellant when the Excise Inspector entered the house isindicative of the fact that he had had an interest in the arrack which thedecoy was in the act of drinking.
As regards the second charge, that of being in possession of arrack to aquantity larger than one person is entitled to possess, it is pointed outthat the appellant’s wife was also in the house and that she is entitled tohave a. quantity of arrack and that therefore husband and wife togetherwere entitled to have a quantity which was not smaller than the amountthat was found. That submission seems to amount to this, that if thereare two persons in a house where arrack is found and one person is accusedof being in possession of it, he is entitled to be acquitted if the amount towhich both .persons are entitled is not. smaller than the amount that isfound. In other words, it is a matter of arithmetic and not a question ofpossesson. Support for that argument was sought in a decision ofMr. Justice Akbar in the case of Excise Inspector Holsinger v. .FrancinaFonseka
, In that case three bottles amounting to 40 drams were found in a houseand three persons were in occupation of that house—the' accused, herhusband, and her sister. According to the evidence given in the casethese three persons were entitled to have 72 drams. Therefore thelearned Judge quashed the conviction. The accuracy of that decisionhas been doubted by Mr. Justice Soertsz in the case of Excise Inspector,Horana v. Mungo Nona1. I agree with Mr. Justice Soertsz. In myopinion any arrack found in a house prima facie belongs to the owner ofthe house and in the absence of any evidence showing or tending to showthat some other person possessed it in common with the owner or apartfrom him the presumption of possession seems to me to be conclusive.
I dismiss the appeal.
1J Ceylon Law Weekly 225.
9 Ceylon Law Weekly 168.
INSPECTOR OF EXCISE v. PALANIMUTTU