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Present; Wood Benton J.
PERIES i>. PERERA.856—P. C. Negombo, 16,097.
If alter** /utility /or act of servant—Illegal drawing of toddy by set pant—
Master's liability—Ordinance No. 10 o/ 2644, *. 40.
The illegal drawing of toddy by a servant was held to be a drawingof the toddy by the master within the meaning of section 40 ofOrdinance No. 10 of 1844.
Wood Benton J.—A master is generally not criminally liablefor the act of his servant; but each a liability may be imposed bythe Legislature.
HE facts appear sufficiently from the judgment.
Savundranayagomt for the accused, appellant.
Bawa, K.G. (with him J. W. de Silva), for the complainant,respondent.
January 12, 1912, Wood Renton J.—
The appellant, her son John, and her servant Isaac Nadan werecharged before the Police Court of Negombo with having respectivelycaused toddy to be drawn, and drawn toddy, from a land of whichthe appellant is admittedly the owner, in contravention of theprovisions of section 40 of Ordinance No. 10 of 1844. John, thesecond accused, was acquitted. The servant, Isaac Nadan, wasconvicted on his own plea, under section 46 of Ordinance No. 10 of1844, of having drawn the toddy, and sentenced to pay a One ofRs. 5. The appellant was convicted under the same section ofhaving caused the toddy to be drawn, and fined Rs. 85. She appealsagainst that conviction. The main point urged by her counsel insupport of the appeal is that there is no evidence of guilty knowledgeand that as the word “ causing ” in section 40 of the Ordinanceinvolves an act of the will, which in its term presupposes knowledgeprior to the act, the conviction cannot stand. In reply to this con-tention, Mr. Bawa argued, in the first place, that there is primi facieevidence of guilty knowledge, which the appellant had not rebutted,inasmuch as she neither gave evidence nor called any witnesses onher behalf at the trial in the Police Court; and in the next place,that even if the conviction for “ causing M toddy to be drawn couldnot be upheld, the appellant would be liable, as the employer ofIsaac Nadan, for his criminal act, and that the toddy drawn by himwould be drawn by her in the eye of the law. In my opinion both
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these answers to the argument offhe appellant’s counsel are sound.The evidence shows that Isaac Nadan was the servant of the appel-lant for the purpose of the drawing of toddy from the trees on theland in question, of which she was the owner. Her own counselelicited in cross-examination the fact that she had previously beenconvicted of an offence under the Licensing Ordinance.
.There were simple precautions which she might have taken, butdid not take, for the purpose of preventing the illegal drawing oftoddy by her servant (see .Dingiri Mudiyanse v. Pinaetuwa1). Thesecircumstances are, I think, sufficient to make out a primA fade caseagainst her, and to throw upon her the burden of explaining herconduct. The failure of an accused person to give evidence is acircumstance of which Courts are entitled to take account. “It isright, ’’ said Darling J. in Rex v. Bernard,2' “ that juries should know,and if necessary be told, to draw their own conclusions from theabsence of explanations by the prisoner.” That observation applies,mutatis mutandis, to Judges sitting alone.
But apart from that, I agree with Mr. Bawa that the illegaldrawing of the toddy by Isaac Nadan was a drawing of the toddywithin the meaning of section 40 of Ordinanace No. 10 of 1844 bythe appellant herself. Various decisions were cited to me in theargument upon this point. There is no doubt but that a masteris generally not criminally liable for the acts of his servant (seeNo. 51,049, P. C. Galle,3 Herft v. Northway,* and the numerousEnglish decisions there cited). But such a liability may be imposedby the Legislature, and has been held to have been imposed in manycases, particularly by statutes dealing with matters affecting publichealth (see Houghton v. Mundy* Brown v. Foot*) and morality (seeRedgate v. Haynes7)> (gaming on licensed premises).
In thfe case of Commissioners of Police v. Cartman* where iherespondent, a licensed person, had given orders to his servants thatno drunken persons were to be served, but during his absence one ofhis servants sold intoxicating liquor to a drunken person, it washeld that the respondent was rightly convicted under section 13 ofthe Licensing Act, 1872^-which makes it an offence for any licensedperson to sell any intoxicating liquor to any drunken person—forhe was liable for the act of his servant, that act having been doneby the servant within the general scope of his employment, althoughcontrary to the orders of his master. In the present case thedrawing—although, of course, not the illegal drawing—of toddy wasan act within the scope of the servant’s employment. I may referto the language of Lord Alverston C.J. in the more recent caseof Emary v. Nolloth•:" Under ordinary circumstances an offence
(1902) 6 N. L. R. 14.*(1910) 103 Law Times R. 60.
(1908) 1 Cr. App. R. 219.* (1892) 66 Law Times R. 649.
*'(1866) Be ling and Vamderstraaten 81.7 (1876) 1 Q. B. D. 89.
* (1890) 1 C. L. R. 27.« (1896) 1 Q. B. D. 666.
• (1903) 2 K. B. 269.
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implies a mens rea. But there are exceptions if the offence
is prohibited in itself, knowledge on the part of the licensee isimmaterial; this principle was acted upon quite recently in Brooksv. Mason* where intoxicating liquor had been sold in a bottle notin fact sufficiently corked, but believed to be so, and knowledgewas held to be immaterial. Similarly, where there is an absoluteprohibition against selling, it is unnecessary* to prove knowledge. "
In my opinion the principle of that decision applies to section 40of Ordinance No. 10 of 1844, which provides that “ it shall not be
lawful for any person to draw any toddy " in the manner
in which toddy in this case was drawn.
The appeal must be dismissed.
PERIES v. PERERA