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Present: De Sampayo J.
SEENITAMBY u. VALIPURAM.
723—P. C. Point Pedro, 5,403.
Opium—Sent by one person to another doing business with him—“ Disposeof ” —Excise Ordinance, No. 5 of 1910, s. 7 (2).
The appellant sent 'by as. “ Lady McCallum ” from Point' Pedroto his son at Batticaloa, with whom he was doing business, opiumconcealed in bundles of tobacco.
Held, that accused bad “ disposed of " the opium within themeaning of section 7 (2), uf Ordinance No. 5 of 1910.
fjlHE facts are set out in the judgment.
Hayley (with him Naganathan), for first accused, appellant.
S. Obeyesekere, G. G., for respondent.
Cur. adv. vtdt.
August 80, 1916, Dk Sampayo J.—
The appellant, Valipuram, has been convicted of the offence ofhaving unlawfully disposed of 12 lb, of opium in breach of section7 (2) of the Ordinance No. .5 of 1910, and has been sentenced to paya fine of Rs. 1,000. The opium was found in a bundle of tobaccowhich, with seven other bundles, had been conveyed by the ss.“ Lady McCallum ” from Point Pedro to Batticaloa on December 22,
According to the shipping order the eight bundles of tobaccowere consigned by V. Arumugam to S. Kasipillai under the mark“ SJ K. ” . The shipping order was received by and presented atthe Batticaloa Customs by Namasivayam, who is a son of theappellant. Namasivayam, who with his father, the appellant, wouldappear to carry on a business at Batticaloa, used to clear goods forKasipillai there, and he professed ignorance of any opium beingconcealed in the bundle of tobacco. Kasipillai, however, repudiatedthe transaction altogether, and stated that he new nothing of thetobacco being sent to his name at Batticaloa. Y. Arumugam,whose name also appeared on the shipping order as consignor,similarly denied having sold the tobacco to Kasipillai, or havingsent it to Batticaloa. The case for the prosecution is that thenames of these two persons were utilized by the real consignorwithout their knowledge in order to' cover the illegal transaction.Arumugam says that some days previous to December 22 he soldand delivered to the appellant a quantity of tobacco which waslying in a house at Point P'edro, and which the appellant madeinto bundles there. There is good reason for accepting the evidence
C 1S7 )
of Arumngam and the other. witnesses who were called for the 191&.prosecution, and this evidence supports the finding of the Police jjb g4in>tv,Magistrate that it was the appellant who sent the tobacco by the J-" Jjady MoQallum," and that in this matter his son Namasivayam ^^Uambywas acting in concert With him at Batticaloa.. v*
It is. argued that, even on the assumption that the bundlescf tobacco were so sent, there is no proof that the appellant hadput the opium into one of them, and that some one on board thesteamer might well have put it there. There are no circumstancesindicating that the bundles' of tobacco were interfered with onthe way. On the contrary, the evidence is that, they arrived atBatticaloa intact. It is for the appellant to' explain, if he can,how the opium came to be among his goods; he has not done so,and the reasonable inference, I think, is that he was responsiblefor its introduction.
The more difficult question is whether, in the circumstancesabove disclosed, the appellant can be said to have " disposed of *’the opium within the meaning of section 7 (2) of the OrdinanceNo. 5 of 1910. It is argued that, since his son Namasivayam doesbusiness with him, the sending of the opium to Namasivayam doesnot amount to transfer of the opium or of its possession. Theexpression " dispose of," generally speaking,, no doubt conveysthe idea of. such a transfer. Even if that is the sense in which itis used in the above section of the Ordinance, there has, I think,been a transfer in this case. The appellant, as he denies thesending altogether, has, of course, nothing to say as to the opiumbeing sent for himself or for the purpose of his business. When thefact is once established that he did send it, the Court is surelyjustified in drawing the conclusion, in the absence of any evidenceto the contrary, that he intended to transfer the opium, or at leastits possession, to Namasivayam. But I think that in the Ordinancethe expression " dispose of " has a wider signification. The preambleof the Ordinance, and the general character of its provisions showthat it was intended to prohibit, except under specified conditions,the distribution of opium in any way, and this intention is aptlycarried out by making it an offence to sell or "dispose of ’ ’ opium.
The substantive " disposal " will, perhaps, throw some light , on itsmeaning. When we, for instance, speak of a thing being at aman's disposal, we do not mean merely that the man can sell orgift the thing, we mean also that he has entire control of it, so thathe may take it of send it from place to place or do anything elsewith it as he may please. The same expression " sell or dispose of ’’occurs in section 14 (1) of Ordinance No. 10 of 1844, which prohibitslicensed distillers and persons in the management of the business oflicensed distillers from selling or disposing of spirits in a less quantitythan 86 gallons at any one time. Peris v. Surasriighe 1 is a case in
i (1908) 12 N. L. R. 30.
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which the manager of an arrack distillery, who had himself takenand removed a bottle of arrack from the distillery, and stated indefence that the arrack was for his own consumption, was chargedunder the above section of the Ordinance No. 10 of 1844 withhaving disposed of arrack in less quantity than 35 gallons. Hisconviction was affirmed in appeal. Hutchinson C.J., after referringto the stringent proyisions of the Ordinance as to the deposit ofspirits in stores and as to the removal of the same without permits,observed as follows: “ When a man takes liquor from his storeand removes it or gets it removed to some other place, whateverthe purpose may be to which he applies it, whether for sale or forhis own consumption or for that of his friends, he 1 disposes of it ' inthe ordinary sense of the words.” These observations are quiteapplicable to the nature of the provisions in the Opium Ordinanceand to the meaning of the expression “ dispose of ” as used therein,and I .think that that decision is an authority for holding that theappellant “disposed of” the opium by sending it to his sonNamasivayam at Batticaloa.' –
For these reasons I am of 'opinion that the conviction of theappellant is right, and the appeal is therefore dismissed. –
SEENITAMBY v. VALIPURAM