1965Present: Sansoni, C.J.EDWIN SINGHO, Appellant, and SAMSUDEEN (Police Sergeant),
S. G. 566165—M. M. G. Colombo, 22922
Charge of illegal possession of excisable article—Proof of nature of excisable article—
Report of Government Analyst not always necessary—Excise Ordinance, s. 47.
In n prosecution under section 47 of the Exciso Ordinance for illegal possessionof an excisable artiel > (24 drams of fermented toddy)—
Held, that the Government Analyst should not be asked to examine andreport on the nature of every production in an excise prosecution. Officers ofthe Excise or Police Department who have the experience and knowledgeto prove the nature of a production can give evidence on such a matter.
AL from a judgment of the Municipal Magistrate’s Court, Colombo.Ananda Wijesekera, for the accused appellant.
K.Ratnesar, Crown Counsel, for the Attorney-General.
September 6, 1965. Sansoni, C.J.—
The appellant was accused, in a plaint filed on 17th December, 1963, ofhaving had in his possession an excisable article, to wit : 24 drams offermented toddy, and thereby committed an offence punishable undersection 47 of the Excise Ordinance.
On the facts the learned Magistrate held that the two Police Officers whodetected the offence, namely, Sub-Inspector Perera and Police SergeantRahim, were speaking the truth when they said that the accused wascarrying 3 bottles of fermented toddy which contained 24 drams in all.With regard to the contents of the 3 bottles, the Sub-Inspector said thatthey were whitish in colour, they had a sour taste and smell, there wassediment at the bottom and there was froth at the mouth. The Sergeantsaid much the same thing. The Sub-Inspector had been 3£ years in thePolice Force and had detected about ten cases of possession of fermentedtoddy; the Sergeant had detected more thantwenty-five cases of fermentedtoddy.
I have no doubt that these two officers were competent to giveevidence as to the nature of the contents of the 3 bottles. They hadsufficient experience in this regard, and it was not necessary to call anindependent expert.
But I find from an examination of the record that on the 24th March,1964, which was the date on which the accused appeared in answer to thesummons, the Magistrate had made an order “ Forward PI to G. A.” Iinterpret this to mean that something which bore a mark PI came beforethe Magistrate in some way, and that “ G. A. ” stands for GovernmentAnalyst. This is not correct procedure. A witness should have givenevidence and produced the particular article, and the Magistrate shouldthen, if he considered it necessary, have made an order. The case wascalled on a number of occasions thereafter, and it was only on the 16thFebruary, 1965, that the report was filed. The trial eventually took placeon the 27th May, 1965, but the report was not produced at the trial.
In the result, the time of the Government Analyst had been wasted, andthe trial took place only one and a half years after the institution of theseproceedings. I hope that delays of this sort do not occur often in aMagistrate’s Court. Public officers who file prosecutions must exercisetheir discretion carefully before they apply to the Court to send produc-tions for examination by the Government Analyst, for the failure to do socauses unnecessary delay in the hearing of the case, and gives the Govern-ment Analyst, who is already overburdened with work, unnecessary workto do.
It is not the law that the Government Analyst should be asked toexamine and report on the nature of every production in an exciseprosecution. It has been held in numerous cases that officers of theExcise or Police Department who have the experience and knowledgeto prove the nature of a production can give evidence on such a matter.If a c ontrary belief exists, it is time it was dispelled.
The appeal is dismissed.
L. EDWIN SINGHO, Appellant, and SAMSUDEEN (Police Sergent), Respondent