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Present: Maartensz A.J.
SILVA v. DE VAS GUNAWAKDENE/
427—P. G. Kalutarar 2£t567.
Excise Ordinance—Keeping a tavern open after prohibited hours—Saleof toddy—Duty of prosecution—Ordinance No. 8 of 1912’rs. 45 (c).
Where a person is charged with keeping a tavern open afterprohibited hours, the prosecution need cot prove that a sale ofliquor took place within those hours.
PPEAL by the Attorney-General from an acquittal. Theaccused was charged with keeping his tavern open at 6.55 p.M.r
in breach of General Condition No. 6 of Excise Notification No. 145.The learned Police Magistrate held that a breach of the conditionswas not committed unless a tavern is kept open for the purpose ofselling toddy, and in the absence of evidence of such a sale heacquitted the accused.
Navarafnam, C. C. (for Crown), appellant.
Qoonc till eke, for accused, respondent.
September 17, 1926. Maaktensz A.J.—
The accused in this case was charged with keeping his tavernopen at 6.55 f.m., in breach of General Condition No. 6 of ExciseNotification No. 145 published in the Government Gazette No. 7,476of July 31, 1925, and thereby committing an offence under section45 (c) of the Excise Ordinance,. No. 8 of 1912.
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The learned Magistrate held that breach of the condition is not 1026.committed unless the tavern is kept open for purposes of selling u.toddy, and acquitted the accused on the ground that there was no A.J.
' evidence of a sale.Silva v. da
The Attorney-General appeals from this acquittal. It was tvardene'contended in appeal that the condition prohibits a tavern beingkept open as well as the sale of toddy after hqurs.
The condition runs as follows: —
" The rules regarding the hours of opening and closing placeslicensed for the sale of liquor are as follows:—
'■ Toddy Taverns.—Toddy taverns shall remain open between thehours of 8 a.m. and 6.30 p.m., and shall be kept closed atall other hours. The Government Agent may, afterconsulting the Advisory Committee, fix the opening hourof toddy taverns as early as 7 a.m., where local circum-stances are found to require it, and may extend the hojurof closing any taverns in towns, and for special reasonsoutside towns, to such hour as he may fix, not being later-than the closing hour of arrack taverns in the same area,and shall enter such hours of opening and closing in thelicence. No sale shall take place between the time at,which the tavern is required to be closed at night and thetime fixed for opening.”
The repealed Licensing Ordinance, No. 12 of 1891, had in section39 a similar provision. The most recent decision under that sectionwas the ease of Eliatamby v. Dalpadadu,1 where it was held that the•offence under section 39 of Ordinance No. 12 of 1891 (keeping openlicensed premises) is constituted by the mere opening of the tavernwithin prohibited hours, and no further duty would be cast uponthe prosecution than to show that the tavern was open during thesehours.
I am of opinion that the ratio decidendi of that case is applicableto the condition under consideration, and am of opinion that thecondition prohibits (a) a tavern being kept open between the hoursof 6.30 p.m. and 8 a.m., and (6) the sale of toddy between these hours.
I am unable to agree with the view taken by the Magistrate that thecondition onh prohibits a tavern being kept open for the purposeof the sale of toddy, and that a sale must be proved in additionto proof that the tavern was kept open during the prohibitedhours.
I am, however, not disposed to set aside the acquittal and remitthe case for further adjudication as the evidence that the tavernwas kept open after 6.30 p.m. is by no means conclusive.
1 (1913) 16 N. L. R. 209.
Silva v. deVas Ouna-■ wardene
The Inspector of Police says- he saw the tavern open about6.50he had no timepiece on him at the time, and fixes that,
time because on going to the Police station 200 yards away thestation clock pointed to 7 p.m. There is no evidence that the-time by the station clock was correct.
I accordingly dismiss the appeal.
SILVA v DE VAS GUNAWARDENE