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Present : Wood Beaton A.C.J.
CHRISTOFFELSZ t>. PERERA.744—P. C. Negombo, 20,256.
A track—Excisable article—Ordinance No, S of 1913.
Amok is an “ excisable article ” within the meaning of theExcise-Ordinance. No. 8 of 1912.
fJjHE facts appear sufficiently from the judgment.
H. J. G. Pereira, for the appellant.—The accused is charged withhaving in his possession two gallons of arrack without a permit.That is not an offence under Ordinance No. 8 of 1912. Section 48of the Ordinance penalizes the possession of an excisable article.The term “ excisable article ” is defined in the Ordinance, but_thedefinition does not refer to arrack. The omission is very signi-ficapt, especially as the definition appears to be exhaustive andspecially refers to several dninks. There is no proof that arrack isan intoxicating drug.
Garvin, Acting S.-G.,. for the respondent.—Though arrack is notspecially referred to in the Ordinance, it ds included in the terms“ liquor M or “ intoxicating drug. ” It is too late in the day to saythat arrack.is. not an intoxicating drug.
October 30, 1913. Wood Renton A.C.J.—
The accused-appellant was charged in the Police Court of Negombowith having in his possession two gallons of arrack without a permitfrom the Government Agent, and with having thereby committedan offence punishable under section 43 (a) of the Excise Ordinance,1912 (No. 8 of 1912). The Police Magistrate has convicted him.and sentenced him to pay a fine of Rs. 150. Section 43 (a) penalizesthe possession, in contravention of the Ordinance or of any rule ororder made thereunder, of any excisable article. The report of theExcise Inspector, which forms the commencement of the proceedings,after referring to section 43 (a), concludes as follows : “ Videnotification No. 7 of Government Gazette No. 6,-548 of February 14,
'1 The notification referred to has, however, nothing to dowith the offence with which the appellant is charged. It merelyprescribes the quantity of arrack and of toddy in excess of whichpasses for transport shall be required. After some difficulty, whichthe exercise of a little care on the part of those responsible for the17-
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1M8.prosecution would have obviated, we have foundthe notification
Woodreferred to. Under section 16 of the Ordinance thepossessionof an
Rbntonexcisable article in excess of such quantity as theGovernorunder
’*section 4 may declare to be the limit of sale by retail, unlessunder
OhrUtoffelaz a permit, is penalized. The Governor has acted under section 4 inv. Perera regar(j ^ arrac]j by notification No. 5 published in the GovernmentGazette for January 31 last. That notification prohibits the sale byretail of quantities exceeding one-third of a gallon of arrack to anyone person at arty time. The accused in the present case is allegedto have been found in possession, without a permit, of two gallons *of arrack. There is evidence that he had no permit. There hasbeen no dispute as to the quantity. The points, however, pressedin support of the appeal were these: in the first place, that theExcise Ordinance does nqt apply to arrack at all, inasmuch as itcontains no specific mention of arrack; and in the second place, onthe evidence that the accused was not found in possession of thearrack, even if it is an excisable article. The first of these groundsis, in my opinion, wholly untenable. An '* excisable article " isdefined as meaning and including any ** liquor ” or intoxicatingdrug as defined by the Ordinance. The term “ liquor ” includes allliquid consisting of or containing alcohol. The term “ intoxicatingdrug " includes every intoxicating drink prepared from any materialand not included in the term “ liquor/' If there were any doubt onthe question whether arrack falls within the former of the definitions,it would certainly fall within the latter. The only point thatremains for consideration is whether the arrack was traced to thepossession of the accused.. [His Lordship then discussed the factsand dismissed the appeal.]
CHRISTOFFELSZ v. PERERA