134-NLR-NLR-V-14-WEERAKOON-v.-FERNANDO.pdf
1911
Present: Wood Renton J.
WEERAKOON v. FERNANDO.
630—P. C. Panadure, 36,534.
Keeping open licensed premises after hours—Ordinance No. 12 of 1891,
s. 39(1).
In a prosecution for keeping a tavern or premises licensed for thesale of intoxicating liquor open between the hours of 8 p.m* and6 a.m. contrary to the provisions of section 39 (1) of OrdinanceNo. 12 of 1891, it would be a good defence if it were shown that thepremises had not been opened as licensed premises at all.
A tavern keeper, who was in the habit of sleeping in the taverntook his dinner elsewhere and returned to the tavern, and the doorwas opened to let him in, and he was standing for a moment on theverandah speaking to a man.
Held, no offence under section 39(1) of Ordinance No. 12 of1891 was committed.
FJ'HE facts are fully stated in the judgment.
Bawa, for the accused, appellant.—Under the circumstances ofthis case the opening of the tavern door was no offence. Perera v.Gomesz3 is a case on all fours with the present. [Wood Renton J.referred to Silva v. Fernando,4 Jeffrey v. Weaver,5 Tassel v. OvendenJ]
Walter Pereira, K.C., S.-G,, for the respondent.—The prohibitionis an absolute prohibition. Counsel referred to Edema v. Soysa.7
October 11, 1911. Wood Renton J.— ■ .
The accused-appellant was charged in the Police Court ofPanadure with having kept open his licensed tavern during pro-hibited hours in contravention of the provisions of section 30 (1) of
1 2 P.dbD. 78.4{1891)9 S. C.C.132.
a 1 P- db D. 685.5{1899)2 Q. B.D.449
8 {1909) 12 N. L. B. 210.6{1877)2 Q. B.D.383.
7 {1908) 2 Leader L. B. 63.
( 473 )
Ordinance No. 12 of 1891. The evidence shows that the door of thetavern in question was during the prohibited hours in fact opened,and perhaps, in a sense, kept open under the following circumstances.The appellant, while he was in the habit of sleeping in the tavern,took his dinner elsewhere, and returned to the tavern thereafter forthe night. On the' night in question he had followed his usualpractice. The tavern door was opened to let him in, and he wasstanding for a moment on the verandah speaking to a man, whoappears to have been his employer’s horsekeeper. At that juncturethe Station House Officer appeared on the scene and asked theappellant why the door of the tavern was open. The appellantgave the explanation, of which I have just stated the' substance, andasked the Station House Officer to smell his hands for the purposeof satisfying .himself that he had, in fact, been dining. The StationHouse Officer did not accept this invitation. He took down theappellant’s statement, and the present prosecution was instituted.
Although the learned Police Magistrate was invited by the proctorfor the appellant to give a definite ruling on the facts, he declined todo so. In this, I think, he was wrong. The case was one in whichthere was every prospect of an appeal, and it would have beensatisfactory to have had before me the view of the facts takenby the Judge who heard the case. There is nothing, however, inthe evidence actually recorded to throw doubt on the bona fides ofthe appellant, and for the purpose of this judgment I propose toaccept his version of what happened—a version which is corro-borated by the evidence for the prosecution—as correct. Thelearned Police Magistrate held that section 39 (1) of OrdinanceNo. 12 of 1891 contains an absolute prohibition of the opening oflicensed premises for any purpose whatever during prohibited hours.He accordingly convicted the appellant, and sentenced him to pay afine of Rs. 25. So far as I am aware, there are only two expressdecisions on the question that I have to decide in the present case.In Perera v. Gomesz11 held that, in a prosecution for keeping a tavernor premises licensed for the sale of intoxicating liquor open betweenthe hours of 8 p.m. and 5 a.m. contrary to the provisions of section39 (1) of Ordinance No. 12 of 1891, it would be a good defence ifit were shown that the premises ,had not been opened as licensedpremises at all. In that case the evidence was that the appellanthad opened his restaurant only for the purpose of allowing his sister,sister-in-law, and cousin to go out so as to catch an early boat atNegombo. It appeared to me that to convert to an action of thisinnocent character into an offence against the provisions of thesection to which I have just referred would be unreasonable, andaccordingly I set aside the conviction and directed an acquittal.In the case of Edema v. Soysa,- where the side door of a tavern,through which access could be had to the bar, was kept open after
1 (1909) 12 N. L. B. 210.s (1908) 2 Leader L. B. 63.
Oat. 11, 1911
WoodKiinton J.
Weerakoonv.
Fernando
( 474 )
Oct. 11, 1911
WoodKionton J.
Wecrakoon v.Fernando
8 p.m., and where it was urged for the accused that the door waskept open whilst he was washing his hands before going in to dinner,it was held that section 39 (1) was explicit on the point, and that the.intention of the Legislature was clearly to prevent all possibility of atavern keeper being in a position to sell intoxicating liquor betweenthe hours mentioned in the section, save perhaps under very excep-tional circumstances, such as a c,ase of fire or burglary. If section39 (1) of Ordinance No. 12 of 1891 is to be interpreted, however, inthis sense, it makes no provision for exceptional circumstances,and the opening of the tavern or the tavern door during prohibitedhours under any circumstances must amount to an offence underthe section, unless it can be held to come under one of the generalexceptions which are enacted in chapter IV. of the Penal Code.
I have carefully considered the question whether I ought to refer thepresent case to a Bench of two or more Judges, in view of the conflictbetween the two cases which I have just mentioned. I have come,however, to the conclusion that I ought to follow my own judgmentin the case of Perera v. Gomesz.1 The English cases of Jeffrey v.Weaver2 and Tassel v. Ovenderi1 are not directly in point here,inasmuch as in the English enactment under which they were decidedthe words “ for the sale of intoxicating liquors” directly follow theprohibition of the opening or keeping open of the licensed premises.But there is one local decision which seems to me to be in point.Section 13 of Ordinance No. 4 of 1841 provided that keepers oftaverns who shall suffer the said taverns to be kept open duringcertain hours shall be. liable to a penalty. It will be observed thatin this section there is no such qualifying clause as we find in theEnglish enactment. For the purpose of the decision of the presentcase, it seems to me to be substantially identical with the provisionsof section 39 (1) of Ordinance No. 12 of 1891. In De Silva v.Fernando1 it was held. by Burnside C.J. that it would be a gooddefence to a charge laid under this enactment to show that the doorof the tavern was opened for a lawful purpose. That decision seemsto me to bear directly on the construction of section 39 (1), and Ithink that it is a reasonable one. It is quite easy to imagine caseswhich could not possibly be brought under any of the exceptionscontained in chapter IV. of the Penal Code, but in which it would behighly inequitable that a person who had opened the door of licensedpremises during prohibited hours should be held to have committeda criminal offence. It is no doubt true, as the learned Police Magis-trate points out, that the application of the law in the sense in whichI am interpreting it may give rise to difficulty in particular cases inarriving at a correct judgment on the facts. But the constructionof section 39 (1) of Ordinance No. 12 of 1891—a section, by theway, which is very badly drafted—pressed upon me by the learned
1 {1909) 12 N. L. R. 210.3 {1877) 2 Q. B. D. 383.
t {1899) 2 Q. B. D. 449.4 (1891) 9 S. C. C. 132.
( 475 )
Solicitor-General in the present case, appears to me to be one that isnot entitled to judicial recognition so long as the Legislature permitsthe owner or occupier of licensed premises to use such premises asa residence ; and after having taken steps to consider whether thepresent appeal should be referred to a Bench of two or more Judges,I have come to the conclusion that there is no need for this to be donein view both of the language of the section itself and of the decisionof Burnside C.J. in the case to which I have referred above.
I set aside the conviction and the fine, and direct the acquittalof the accused-appellant
Appeal allowed.
Oct. 11,1911
WoodKenton J.
Weerakoon v.Fernando