013-NLR-NLR-V-25-ASSISTANT-SUPERINTENDENT-OF-EXCISE-v.-VELU-PILLAI.pdf
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Present: Schneider J.
ASSISTANT SUPERINTENDENT OF EXCISE v. VELU-
PILLAI.
289—P. G. BaUicaloa, 12,733.
Proctor offering a plea of “ not guilty ”—No provision in Code—Whenproctor may be allowed to plead for an accused who is not present—Bail—Proctor as surely for his client—Condition that renter shallnot sell in any month arrack exceeding by more than 25 per cent.,the average monthly consumption for twelve months within thelimits—Meaning of condition.
There is no provision for a proctor offering a pica to a chargeagainst his client, especially when the client himself is not presentin person at the trial. The Code distinctly contemplates theaccused being present in Court, and the evidence being taken in hispresence. A departure from the strict provisions of the Codemight be justified in cases of a trivial nature when the offence ispunishable with a small fine, and the circumstances seem to indicatethat a plea of “ guilty ” offered by a proctor might be accepted.
It is a practice open to the gravest objection for a proctor tostand surety for his client in a case in which he is acting in hisprofessional capacity. If a proctor does offer himself as a surety,the Magistrate is bound to accept him if he possesses the necessaryqualifications.
An arrack renter was given a licence to sell arrack subject to thecondition that he shall not sell “ within the limits of the grantees*exclusive privilege of selling arrack by retail in any one montharrack exceeding by more than 25 per cent., the average monthlyconsumption for the preceding twelve months within the saidlimits.’*
Held, that the grantee was prohibited not from selling over theprescribed limit in any particular tavern, but from selling in allthe taverns within the limits of his monopoly.
What the condition was intended to mean was that when thefigures in reference to the sales for a whole month are available atthe completion of the month, and disclose that a quantity has beensold in excess of the limit, the renter would be guilty of a contra-vention of the condition.
*h b) facts are set out in the judgment.
Hayley, for the accused, appellant.
Dias, C.C., for the respondent.
June 5,1923. Schneider J.—
This appeal is connected with appeals Nos. 290 and 291, in all ofwhich the same appellant, who was the purchaser- of the exclusiveprivilege of selling arrack by retail in the Batticaloa District for theyear October I, 1921, to September 30, 1922, was charged withbreaches on September 28,29, and 30 of Condition 24 of the “ Arrack
9-xxv.12(60)29
1923.
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1623.
Schneider
J.
AssistantSuperintend-&nt of Excisev. Velupillai
Bent Sales Conditions, 1921-22,” published in the Ceylon Govern-ment Gazette No. 7,175 of May 13,1921. He was convicted undersection 43* (h) of the Excise Ordinance, No. 8 of 1912, and was ineach case sentenced to pay a fine of Rs. 1,000.
The procedure followed in all three cases is so grossly irregularthat the proceedings must be set aside and the case remitted forprocedure according to law. In none of the cases did the accusedappear in obedience to the summons. The summons, which are inthe ususal form, directs that the accused should appear in person toanswer to the charge. No charge was formulated or read. Aproctor appeared for the accused and pleaded “ not guilty/' Theonly material evidence balled for the prosecution as recorded hardlyproves the charge. An Assistant Superintendent of Excise gaveevidence to the effect that he produced a statement showing “ con-sumption of arrack in the Batticaloa Revenue District for thetwelve months finishing September, 1922.” The statement itselfshows figures for the twelve months immediately preceding Sep-tember, 1922. The period given in his statement is the correct onefor the charges. This witness stated that the Government Agenthad granted permission to the accused in terms of Condition 24 tosell in excess of the limit as to quantity fixed by that condition,provided that accused sold at Rs. 12 a gallon. He also stated thatthe proviso stipulated by the Government Agent had not beenobserved by the accused from September 22. He does not explainwhy lie fixed upon this date, because it is not a date material to thecharges, nor does he explain how he is able to speak to the fact of thesales. It is inconceivable how he could have been present at thesales in ten taverns, which, according to the Government Gazette ofMay 13,1921, is the number sanctioned for the Batticaloa District.He refers to some tavern account books, but does not say what thoseaccount books contained. The books themselves I find are in Tamil,and I am therefore unable to derive any information from them.This witness also stated that the accused had exceeded the limit asregards the quantity he might sell on September 28 by 46 gallons and6 drams, and by the end of September by 1,011 gallons and 46 drams.
All the evidence whichl have referred to was given in case No. 289.In cafes Nos. 290 and 291 there is no evidence whatever. It shouldbe also pointed out that although in case No. 290 the accused ischarged with an offence committed on September 29, there is noevidence anywhere of sales on that day. The irregularities in theprocedure, therefore, are of such a nature that they cannot be over-looked, and I am therefore obliged to set aside the convictionin all three cases, and remit them for procedure in due course.
At the close of each case the Magistrate has recorded that Mr.Kadramar, who is the proctor who appeared for the accused andpleaded “ not guilty” on his behalf, would sign a bond as surety forthe payment of the fine imposed on the accused. It seems to me a
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practice open to the gravest objection for a proctor to stand suretyfor his client in a cause in which he is acting in his professionalcapacity. Of course, if a proctor does offer himself as a surety, theMagistrate is bound to accept him if he possesses the necessaryqualifications. I would also remark that a Magistrate must followthe provisions of the Criminal Procedure Code strictly. The Codehas no provision for a proctor offering a plea to a charge againsthis client, especially when the client himself is not present in personat the trial. No conviction of an accused person upon such a pleacould at any time be upheld should the accused not elect to abide bythe plea offered by this proctor. The Code distinctly contemplatesthe accused being present in Court, and the evidence being taken inhis presence. A departure from the strict provisions of the Codemight be justified in cases of a trivial nature where the offence ispunishable with a small fine, and the circumstances seem to indicatethat a plea of “ guilty” offered by a proctor might be accepted.
There were two points which were argued before me by Mr. Hayleywho appeared for the accused-appellant. He desired that I shouldrefer to these points in my judgment, and direct that the prosecutionshould be confined to one charge only, because according to hiscontention the accused could not be charged with the commissionof more than one offence by sales made during the month of Septem-ber. I shall refer to these points, but whatever I state must neces-sarily be in the nature of obiter dicta, as my orders on appeal are notfounded upon these points. The opinion I express will have nobinding effect. Mr. Hayley argued first that the prohibition inCondition 24 is against the selling of arrack in excess of a limit duringthe whole of a month and not upon any particular day of that month.“ Month,” he argued, must be regarded as a calendar month underthe provisions of the Interpretation Ordinance, No. 21 of 1901,section 3 (12). I am inclined to agree with this argument. Thewords of the condition in question applicable to the facts of theseappeals are “ the grantee shall not sell or otherwise dispose of withinthe limits of the grantees' exclusive privilege of selling arrack by retailin any one month arrack exceeding by more than twenty-five percent., the average monthly consumption for the preceding twelvemonths within the said limits.” The word “ consumption” is notthe right word, for it by no means follows that all this sold from atavern is consumed, or that what is consumed is only what is soldfrom taverns. There are illicit sales in fact. The word “ sales”would seem to be more appropriate. The language of the conditionseems to me to support Mr. Hayley’s contention. The grantee isprohibited not from selling in any particular tavern, but from sellingin all the taverns within the limits of this monopoly. As in thiscase there might be ten such taverns situated at wide distancesapart. The sales in those taverns would fluctuate from day to day,and a renter, therefore, would not find it possible to ascertain whether
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SOHNBIDEB
J.
AssistantSuprintend*ent of Excisev. VelupiUai
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1928.
SOHNEIDJEB
J.
AssistantSuperintend*ent of Excisev. Yelupillai
the sales exceed the limits as regards quantity for some days afterthe sales have actually taken place. Considerations such as thesefavour the" argument in support of the contention that what thecondition was intended to mean was that when the figures in refer-ence to the sales for a whole month are available at the completionof the month and disclose that a quantity had been sold in excess ofthe limit, the renter would be guilty of a contravention of the condi-tion . If the condition be construed otherwise, and a renter bedeemed to commit a breach of' the condition from the moment histotal sales show that he had exceeded the limit, it would lead tosome extraordinary results. To be strictly logical, every singlesale after the limit is reached would he a distinct offence, becauseeach such sale would be contrary to the prohibition. The numberof offences committed would therefore have to be reckoned not bythe day, but by the number of glasses and of bottles of arrack soli.Taking the figures disclosed in this case, the accused could becharged over a thousand times for the sales of September 28,29, and80. It seems to me, therefore, that the language of the conditionand the reason of the thing demand that the condition should begiven the interpretation suggested by Mr. Hayley.
He next argued that the accused should not have been convictedunder section 43 {h)t but under section 45 (c). He argued thatsection 43 had a wider scope than section 45, inasmuch as itcontemplated acts in contravention of the Ordinance or any ruleor order made under the Ordinance, while section 45 contem-plated acts or omissions by licensees or holders of passes or permitsonly. He also urged that, therefore, section 45 (c) is theappropriate section under which the accused should have beenconvicted. I am unable to accept this argument. If thecharge against the accused had been proved, his conviction undersection 43 (h) appears to me to be correct. It should not be over-looked that while section 43 refers to acts in contravention ofthat Ordinance or of any rule or order as argued by Mr. Hayley, italso refers to contraventions of any license, permit, or pass obtainedunder the Ordinance. Section 45 (c) refers also to acts wilfullydone or omitted in breach of any conditions of a license, permit, orpass, but the presence of the words license, permit, or pass in boththe sections does not justify 43 (A) and 45 (c) being regarded asidentical. The important words in 45 (c) are “ not otherwiseprovided for in this Ordinance.” These words indicate that wherethere is a provision in the Ordinance elsewhere than in section 45 inregard to the breach of the conditions of the license, permit, or pass,section45 willnot apply. The difference in the penalties provided insections 43 and 45 appear to indicate that section 45 (c) was intendedto catch upsuch minor acts of misconduct by a licensee or holder of apass or permit as would not be punishable under section 43 or anyother provision in the Ordinance.
Sent back.