( 118 )
Present: Schneider J.
SOYS A v. DAYITH SINGHO et al.
31o—P. C. Hatton, 4,362.
explanation—Ordinance No. 38 of 1917, s. 4.
The accused sent two bags of tea by his servant to a boutiqueto be weighed and delivered to an intending purchaser, when theywere seized ' by a Police Constable and taken to the Police Station,where they were claimed by the accused. The accused was thencharged under section 4 of the Protection of Produce Ordinance,No. 38 of 1917, the material part of which is as follows: —
Whenever any one is found inpossessionofanyproduce under
such circumstances that there is reason to suspect. thatthe same is not honestly in his possession, and he isunable to give to the Court beforewhomhe is tried a
satisfactory account of his possession thereof, sucbperson shall be guilty of an offence ….
Held, that the tea was in thepossessionoftheaccused within
the meaning of the section.
Section 4 of the Ordinance throws upon the person who is foundin possession of produce the onusof givingasatisfactory account
of his possession, only where such person is found in possessionunder such circumstances that there is reason to suspect thatthe produce is not honestly in his possession."
^PPEAL from a conviction by the Police Magistrate of Hatton.Hayley, K.G. (with him Swan), for appellant.
August 25, 1927. Schneider J.—
Upon a previous appeal in this case this Court quashed all theproceedings and directed a new trial. When the same Magistratewas about to commence this new trial the Proctor for the accused
( HO )
requested him to send the ease for trial before another Judge iisthe Magistrate had already formed an opinion on the facts at thefirst trial. The Magistrate would not entertain this request, buttried the case. On reading his judgment it is abundantly clearthat he has proceeded largely upon the impression left on his mindby the evidence produced at the previous trial. He refers to thatevidence, and also to his previous judgment and the reasons givenby him in that judgment. After the new trial he found the accusedguilty and imposed the same sentence as before. The fact thatthe previous proceedings hud been quashed because of the omis-sion to frame a proper charge is no justification for importing intothe new trial the evidence, or the effect of the evidence, producedat the previous trial. It would have been very much more satis-factory if the learned Magistrate had acceded to the request- madeto him and had sent the case for trial before another Judge. Thecharge is laid under section 4 of the Protection of Produce Ordinance,No. 38 of 1917. The relevant part of that section is the following:“ Whenever anyone is found in possession of any tea leaf in amanufactured state under such circumstauces that thereis reason to suspect that the same is not honestly in hispossession, and he is unable to give to the Court beforewhom he is tried a satisfactory account of his possessionthereof, such person shall be guilty of an offence andshallbeliable on summary convictionbefore aPolice
Magistrate to imprisonment or to a fine.”
The material evidence might be summarized as follows: A PoliceConstable received information that two bags of tea would bebrought to the Goods Shed at Hatton. The goods not arrivingthere he went into the town ill search of “the tea.” He foundtwo bags of tea opposite the boutique of Kavanar and a personstitching oneofthe bags. One Juwanis Appuwho wasthere
told him he had brought the tea from the accused’s boutique tobe weighed in Kavanar's boutique and to be sold to one MeeraSaibo. One of the bags had a label on it addressed “ R. M.Cader Saibo, Kur*unegala.” The Constable took the bags to thePolice Station, together with Juwnnis Appu and Cader Meera Saibo,whom he found a little later. The accused then came to the PoliceStation and claimed the tea. On being weighed it was ascertainedthat one of thebags contained 140 lb. and theother 54lb. of
manufactured tea. The accused produced a receipt dated December25, 1925. signed by one Muttiahpillai to the effect that 103 lb. ofB. 0. P.” and 230 lb. “ dust ” were sold to one Davith SinghoMuttiahpillai,inhis evidence admitted grantingthe receipt but
stated that the date “ 1923 ” had been altered to ” 1925 ” andthat it was in 1923 he had sold the tea. The Constable admitsthat the ” bags were quite exposed to the public ” and were found29/12
( ^20 )
about a quarter of a mile from the Police Station. Kuvanar’^boutique, he admitted, adjoined the high road. Juwanis Appusays that- the accused, who is a boutique-keeper, deals largely intea; that even at the time he was giving evidence there weiv;about 1,000 lb. of tea in the accused's boutique. He says thatthe accused produced three receipts (not one as alleged by thePolice) for the tea, but that the Police accepted only one of thesereceipts. The learned Magistrate has disbelieved this evidence,proceeding upon what had transpired at the previous trial. Asthat evidence formed no part of the evidence in this case he shouldnot have used the evidence at the previous trial unless that evidencewas expressly introduced as the evidence upon this trial also.C-ader1 Meera Saibo says that the accused showed him the tea inhis boutique when he offered to sell it to him at a particular price,and that on the next day he was told by Juwanis Appu that thetea was at Kavanar's boutique, and he went there, when the Policeappeared on the scene and sized the tea.
The accused has appealed once again from his conviction. Mr.Havley, who appeared* for him, submitted that the prosecutionfailed to prove that the accused was “ found in possession ” ofthe tea in question, and also if the accused be held to have beenfound in possession that it was not under such circumstances thatthere was reason to suspect that the tea was not honestly in hispossession. He submitted that the tea was found not in the.possession of the accused but in that of Juwanis Appu, and thatit was only in a constructive sense that the accused couid be saidto have been in possession of the tea. The tea had left thepossession of the accused and had passed into the possession ofJuwanis Appu in order that it might be weighed and delivered tothe purchaser Cader Saibo. The Police Constable therefore didnot find the accused in possession, but Juwanis Appu. Mr. Hayleycould cite no local decisions in which the words “ found inpossession ” in section 4of the Ordinancehadbeenconstruedor
considered, but he citedtwo decisions oftheEnglish Courtsas
likely to be of assistance in interpreting the wrords " anyone foundin possession ** in section 4. These decisions are Simmons v.Millingan1 and The Queen v. Dennis.3 In the former of these casesthe words “ found committing an offence “ in a Statute wereinterpreted as intended to apply to the case of persons who aretaken flagrante delicto, and that it was not sufficient to show thata person has committed an offence though but a little while before.In the latter case L. who had purchased and taken delivery ofwalnuts which he subsequently found to be unfit for the food, ofman and had taken andhanded them toa SanitaryInspectorto
be dealt with by him washeld not to havebeenfoundin possession
> 15 (N. S.) L. J. R. C. P. 102.
* 63 L. J. M. C. 163.
( 131 )
of fhe walnuts within the meaning of a Statute. It would appearthat neither of these cas$s is in point nor of any assistance tosupport his contention that the possession of the tea when it-wasfound .by the Constable was not with the accused but with JuwanisAppu. Hr. Hayley cited Banda v. Haramanis1 in which the principlethat possession to be criminal must be actual and exclusive,for criminal liability does not attach to constructive possession ”was approved and adopted. Applying that principle in regard topossession in this case, in my opinion it must be held that theaccused was in possession of the tea. His possession was exclusive.It was conscious. Upon his own statement Juwanis Appu washis servant, employed for the purpose of seeing that the tea wasweighed and delivered to the purchaser. The^ removal of the teafor that purpose from his boutique to the place where it was to heweighed was not a removal of the tea from his possession. Itcontinued to be in his possession unless delivery were made to thepurchaser. Supposing the tea in question had been found in theshop or boutique of the accused at a time when the accused himselfwas not present in the shop but- Juwanis Appu was in charge asthe salesman or assistant of the accused, it could not be reasonablyeaid in those circumstances that the possession of the tea was notwith the accused but with Juwanis Appu. 1 am therefore unableto sustain that part of Mr. Hayley *$ argument that the tea, whenfound by the Constable, was not in the possession of . the accused.I hold that it was. But I think the prosecution fails for anotherreason. The section under which the prosecution was institutedthrows upon the person who is found in possession the onus ofgiving1 a satisfactory account- of his possession to the Court beforewhom he is tried only where the person is found in possessionunder such circumstances that there is reason to suspect thatthe produce is not honestly in his possession.” There is no evidencein this case that there had been a theft of tea anywhere. Thereis no evidence what the information was which induced the PoliceConstable to watch for the arrival of two bags of tea at the RailwayStation. The circumstances for suspecting that the tea was nobhonestly in the possession of the accused at the time the tea wasfound bv the Police Constable must therefore be looked for in theother evidence in the case. I am unable to see that there wereany such circumstances. The tea was being weighed publiclyin a boutique adjoining the high road at about 11 a.m., an hourwhen such business is usually transacted, with notice to the intend-ing purchaser, and probably in the presence of persons employedin the boutique of Kavanar. The accused does ordinarily dealin tea. All those are circumstances which clearly do not give risefor any suspicion that the tea was not honestly in the possession
(1919) 21 N. L. f?. 111.
( 124 )
*Vo// v« v,Darithtiirigho
of the accused. That being so, the section does not oblige theaccused to give., the Court a satisfactory account of his possessionof the tea. The evidence in the case does undoubtedly show thatthe account given by the accused of how he came by the tea is byno means satisfactory. But that could not justify the convictionof the accused in this case. I would, therefore, set aside the con-viction and acquit the accused.
»SYi a aide.
SOYSA v. DAVITH SINGHO et al