H. N. G. FERNANDO, J.—Karuppan v. S. I. Police, JPindeniya
Present :H. N. G. Fernando, J.
KARUPPAN, Appellant, and S. I. POLICE, PINDENIYA,
jS. C. 6S9—Jf. C. Deniyaya, 225
Excise—Charge oj possession of unlawfully manufactured liquor—Characteristics ofthe liquor in question—Evidence relating thereto.
In a prosecution for possession of unlawfully manufactured liquor, the wit-ness who gives evidence as to the characteristics of the liquor found in thopossession of the accused must give valid reasons for his opinion that the liquorwas unlawfully manufactured.
ilpPEAL from a judgment of the Magistrate’s Court, Deniyaya.
V. Kumaraswamy, with E. S. Dassanayake, for Accused-Appellant.Shiva Pasupati, Crown Counsel, for the Attorney-General.
November 25, 1959. H. N. G. Fernando, J.—
On this charge of possession of unlawfully manufactured liquor calledpot arrack the only evidence as to the identity of the liquor found inthe possession of the accused was that of the Preventive Officer who had
Oorea v. The Urban Council, Kotte
been in the excise department for seven years. The relevant portionof hia examination-in-chief reads as follows : “I find the seal of produc-tion PI intact. I am opening it in Court. I am of opinion that thecontents of PI is unlawfully manufactured arrack **. In cross-examina-tion the officer said that the contents of PI is a distilled spirit and thensaid “ this is smoky in taste ”.
The excise officer did not say that he knew the difference in the charac-teristics of government arrack and other arrack. He did not mentionwhat these differences are and he did not state which of these differenceshe had noticed in the arrack produced in this case. The officer did notstate in Court that he had tasted the liquor in the bottle PI, nor is thereany record to show that he had tasted or smelt the contents in Court.Crown CoiifaS61 invites me to presume that he must have tasted the con-tents in Court because the judge has in his reasons mentioned tha;t theofficer “ stated after examining the contents of PI in Court that it wasunlawfully manufactured arrack. It was smoky in taste and smell ”.The learned judge was mistaken as to the evidence given by the officerbecause at no stage was any mention made of the smell of the contentsof PI. It is quite possible that when that officer said that the contentsof PI are smoky in taste he was referring to his general knowledge asto the taste of unlawfully manufactured arrack, and I cannot be certainfrom the evidence on record that the liquor was actually tasted by theofficer nor can I be certain that the officer had any good reasons forhis opinion that the liquor was unlawfully manufactured arrack. Hisfailure to state any of his reasons disables me from considering whetherthere were any valid reasons for his saying so. In these circumstancesI allow the appeal and acquit the accused appellant.
A. KARUPPAN, Appellant, and S. I. POLICE , PINDENIYA , Respondent