( 60 )
Present ; De Sampayo J.ANTHONYPIBLAIStJBRAMANIAM
164—P. C. Batticaloa, 10,866
Tavern-keeper convicted for selling arrack after hours—Order that arrackbe destroyed.
"Whore a tavern-keeper was convicted for selling arrack afterhours in contravention of section 17 of Ordinance No.. 8 of 1912,the Magistrate ordered that the arrack should be destroyed.
Held, that the order was .wrong, the Supreme Court directedthe arrack to be delivered to the person who purchased it.
Tjy HE facts ate set out in the judgment.
A'rulanandan, for the appellant.
Jansz, C.C., for th e jCrown.
Mav 32, 1922. De Sampayo J.—
The accused is the keeper of a tavern at Batticaloa. Next- to thetavern" is a barber's shop, which is run by a-man named Antbo.The case presented by the prosecution is that about 7 o’clock in theevening of the day in question the barber came in front Of the tavern,which was then closed, but the barber was able to pass his handthrough the planks, which were rather loosely put together. Thepolice who prosecute suggest that the barber passed sorne moneythrough. Then the "'barber re-entered his shop. The police sergeanthaving observed the proceeding suspected that there was some-thing irregular being done." and went into the barber’s shop. Thenhe observed a tumbler and a bottle being passed over from thetavern side of the barber’s shop through an opening in the partitionwall. The police accordingly prosecuted this accused.. But the.charge actually made, which L am surprised to see was adoptedby the Police Magistrate also, is u/ great jumble, for it alleged thatthe accused sold arrack after hours without a license from theGovernment Agent, in contravention of section 17 of OrdinanceNo. 8 of .1912. It appears, according to the regulation applicable toBatticaloa, that the hour for closing taverns is 6.30 im. Theaccused being a tavern-keeper must necessarily have had a license.The charge should properly have been under section 45 of theOrdinance for contravening the -conditions of the license, or the ruleframed under section 31. This imperfection, however, may beoverlooked, and the case dealt witli on its merits.
( 61 )
The accused denies having sold the arrack after' hours, and *382.particularly that he passed a bottle of arrack over, the wall to the pe Samfavobarber, as stated by the witnesses for the prosecution. The Magis- *•trate, however, is quite satisfied with the evidence of the two police Anthony-sergeants, especially as he says he inspeced the place himself, andfound that the statement of the sergeants in every detail was quite momaccurate. It appears that some bricks, had been loosened on- the topof the wall, and when any brick or several of them ai-e taken offanything can'be passed from one side to the other quite easily.
This explains the evidence of the police sergeants, that when theywent into the barber's shop they observed a bottle of arrack emergingfrom the side of the tavern into the barber's shop. Theve is voomfor suspicion that the barber re-sells the arrack to the people whocome to his shop ostensibly to get shaved. As a matter of fact, thepolice thought that there should be some charge against the barberfor buying the arrack from the- tavern, but they no doubt soonfound that no such charge was possible. I think the Police Magis-trate had ample grounds for coming to the conclusion he did. The.appeal must, therefore, be dismissed.
But I And that the Magistrate followed up his judgment hy aiiorder that the arrack should be destroyed. I do.not see why,under any circumstances, an article of this kind should be destroyed.
But, if the prosecution is true, the barber is the lawful owner of thearrack, he having purchased it from the tavern-keeper. . He cannotbe said to have committed an offence by^buying ‘arrack after hours.
It seems to me that, if any order was to be made as to the arrack,it should have been that the arrack should be returned to the barber. ,Accordingly I delete the order requiring the arrack to be destroyed,and further direct that, if it is still in.existence, it be returned to thebarber.
ANTHONYPILLAI v. SUBRAMANIAM