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Present: Dalton J.
ASHTON v. CROOS ei al.
704, 704a—P. C. Colombo, 27,641.
'Opium—Landing of opium from ship by launch—Importation—OrdinanceNo. 5 of 1910, a. 4 (J) (a).
The landing of an article, which was brought by ship fromoverseas, amounts to importation within the meahing of section4 (1) (o) of Ordinance No. 5 of 1910.
PPEAL from a conviction by the Police Magistrate ofColombo.
H. V. Perera (with Ponnambalam), for appellants.
IUangakoon, C.C., for respondent.
.February 1, 1929. Dalton J.—
The appellants, Anthony Croos and Mallis Appu, were, at the dateof the commission of the offences charged (September 7, 1928),■coxswain and driver respectively of the Customs motor launch“ Wasp ”. They have both been convicted cf the following twooffences:—
Being jointly concerned in the importation into Ceylon of4 lb. of opium in H. M. Customs launch “ Wasp ” incontravention of section 4 (1) (a) of the Opium Ordinance,No. 5 of 1910.
<2) Jointly transporting 25 lb. of ganja in H. M. Customs launch“ Wasp ” from the ss. Bamora to the Lake Canal Basincontrary to the provisions of section 43 (a) of the ExciseOrdinance, No. 8 of 1912.
The first ground of appeal is to the effect that the Magistrateshould not have accepted the evidence of the witnesses for the pro-secution, including Soris, Sergeant Beevers, and Assistant PreventiveOfficer Perkins. I do not think it necessary to detail their evidencehere. It is sufficient to state that after hearing all that Counsel forappellants has to say I am quite satisfied that the Magistrate wasfully justified in coming to the conclusion that the ganja and opiumfound early on the morning of September 7, near the bridge overthe Lake Canal, as the witnesses depose,'was conveyed in the launchfrom the ss. Bamora by the man Martin who had been picked up bythe launch at the Prince of Wales Jetty after it had. droppedMr. Perkins who directed it to proceed to its usual place at the
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Passenger Jetty. The launch was then in charge of the first accused!and driven by the second accused. The Police Magistrate has,.before-accepting the evidence of the witness Sons, who was the stemmanin the launch, and to all intents and purposes an accomplice, rightlylooked to see if there is any corroboration of his story that he can.accept. In his reasons for his judgment he details the variouspoints upon which Soris has been corroborated. There are a fewpoints upon which Soris’ evidence is contradictory, but I have nodoubt od the main points the Magistrate was entitled to accept hisevidence. The suggestion that Sergeant Beevers had fabricatedhis evidence with respect to the landing of Martin from a launchnear the bridge in the Lake Canal was hardly worthy of Counsel. Nosuch suggestion seems to have been made to the witness dining the-trial and the watcher in the canal yard actually reported at 8 -30 a.m.next morning that he had heard the blast of a whistle from the-main road when a launch had gone into and out of the canal. Thiswas undoubtedly the whistle of Beevers when he was chasing Martin.There was no possibility that Beevers and the watchman had metprior to 8 • 30, nor was any such suggestion ever made.
It was next urged that accepting all the facts deposed to by the-witnesses with regard to the part played by the launch and the twoaccused, they do not disclose any offence. It was specially urgedthat there was nothing to show that the accused, or at any rate thedriver, knew what Martin was conveying ashore. I was referredto Attorney-General v. Rodriguesz. 1 On that point one has to bearin mind the hour of the night when the journey took place, thedropping of the preventive officer, the journey to pick up Martin,the trip to the ss. Bamora, the method of receipt of the bags orparcels which turned out to be opium and ganja through a porthole into the launch, the rapid journey from, the ship to the LakeCanal, the fact that neither passengers nor goods are landed there,the landing of Martin at that out of the way spot, and the rapidpassage back to the Passenger Jetty, to which point the launch hadbeen ordered to go. It is suggested that the first accused, being incharge of the launch, might know -what Martin was doing, but thesecond accused was but carrying out the first accused’s orders. Buthe does not say so. He denies that anything of the kind took placeat all, but states that the launch after dropping Mr. Perkins wentback as directed to the Passenger Jetty and remained there for thenight. The second accused had duties iii the launch independent ofthe first accused. He was responsible for all the petrol used, andfrom the evidence given on the matter of the speed of the launch atmore than one point of the journey that night, one can reasonablyinfer the second accused as driver played a most important and under-standing part in the landing of the man Martin with his freight.
' 19 N. L. R. 65.
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I am satisfied that on the evidence and all the circumstances I haveset out, the Magistrate was entitled to come to the conclusion, in theabsence of some satisfactory explanation by both or either, thatboth accused were fully aware that Martin was conveying ganja andopium ashore and were both playing a willing and active part in itsconveyance.
Next it was urged that the ganja and opium had been imported sosoon as the ship “ Bamora ” reached territorial waters or came torest in the harbour, and if that was so, the landing of it from ship toshore by the launch was not “ importation”. The definition of timeof an importation as set out in section 14 of the Customs Ordinance,1869, is only for the purpose of determining in the instances set outthe precise time at which an importation shall be deemed to havehad effect. In Whitfield v. Martin Singho1 however it was commonground between the parties that “ importation ” in both the Exciseand Opium Ordinances meant the actual landing of the article andthat was accepted as correct by Lyall Grant J. in upholding aconviction on a charge of attempting to import. A person may dosomething in respect of the importation of an article, in other wordsbegin to import an article, before it is actually landed, but the actof importation is in the ordinary course completed, in the absenceof any law or regulation governing special cases, when the articlecomes oversea, as here, by the landing of the article in Ceylon. Onthe facts it seems to me clear that both the accused were concernedin importing the opium set out in the first count, and were alsoconcerned in transporting the ganja set out in the second countin contravention of the provisions of the respective Ordinancesmentioned.
The appeals must therefore be dismissed and the convictionsaffirmed.
Appeal dismissed .
1 9 C.L. B. 103.
ASHTON v. CROOS et al