045-NLR-NLR-V-15-COORE-v.-FERNANDO.pdf
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Present : Wood Renton J.
COORE t>. FERNANDO.203—P. C. Gampola, 764.
Licensed premists—Opening doors after hours for taking into premisesunsold liquor from a circus—Ordinance No, 12 of 1891, s, 39 (I).
Accused, a liquorshop-keeper, who had a special license to sellliquor at a travelling circus, opened at 1.15 a.m., the door of hisliquorship, where he lived, for taking into the premises the liquorwhich had not been disposed of at the circus.
Held, that the accused was guilty of an offence under section39 (1) of Ordinance No. 12 of 1891. V"It is impossible in cases of this kind to lay down any generalrule, and it is not desirable to attempt to do so. Each case mustbe decided on the particular facts that it presents."
Perera t>. Gomesz1 and Weerakoon v, Fernando2 distinguished.
T
HE accused in this case was a liquorshop-keeper, who residedin his stop. He obtained a special license to sell liquor at a
travelling circus. He brought back with him from the circus a cart-load of liquor which had not been disposed of, and opened the doorof hi* shop at 1.15 a.m. for taking the liquor into the premises. Theaccused vvas charged under section 39 (1) of Ordinance No. 12 of1891, and was convicted and sentenced to pay a fine of Rs. 25, orin default to undergo one month’s rigorous imprisonment.
The accused appealed.
Bawa, K.C., for the accused.
Walter Pereira, K.C., S.-G., for the Crown.
March 28, 1912. Wood Renton J.—
The accused-appellant was charged in the Police Court of Gampolawith having kept his licensed premises open during prohibited hours,in contravention of the provisions of section 39 (1) of OrdinanceNo. 12 of 1891. The learned Police Magistrate has convicted him,and has sentenced him to pay a fine of Rs. 25, or in defaultto undergo one month’s rigorous imprisonment. The facts areadmitted* The appellant had a special license to sell liquor at a.travelling circus on the night of the commission of the alleged offence.There is no express statement in that license as to the hours to whichit extended, but the case has been argued before me on the assump-tion, which is no doubt correct, that it covered the prohibited hours,as defined by section 39 (1) of Ordinance No. 12 of 1891. Theappellant lives on his licensed premises, and, in my opinion, he couldnot have been convicted of an offence under the section in question,if all that he had done was to open the door of these premises for the
1 {1909) 12 N. L, R. 210.2 {1911) 14 N. L. R. 472.
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1912.
WoodRbkton J.
Coore v.Fernando
purpose of getting into them himself for the night. But he did morethan that. He brought back with him from the circus a cart load ofliquor which had not been disposed of, and at the time when thepolice came on the scene he was having that liquor unloaded. Thelearned Police Magistrate has held that this opening of the premisesconstituted a contravention of section 39 (1), and I think that hehas rightly held so. The present case is quite different from thoseof Per era v. Gomesz1 and Weerakoon v. Fernando,1 on which theappellant’s counsel relied. In the former of those cases it wasproved affirmatively that the licensed premises in which the appel-lant resided had been opened merely for the purpose of allowing hissister, his sister-in-law, and his cousin to go out so as to catch anearly boat at Negombo- I may point out in passing that the head-note to that case goes further than the judgment, and is not quitecorrect. I did not hold or intend to hold that in a prosecution forkeeping a tavern or premises licensed for the sale of intoxicatingliquor open between the hours of 8 p.m. and 5 a.m. contrary to theprovisions of sub-section (1) of section 39 of Ordinance No. 12 of1891, it must be shown that such tavern or premises were kept openfor the sale of intoxicating liquor. In the portion of the judgmentin which that statement occurs I merely summarized the argumentof the appellant’s counsel; and, although in the latter part of thejudgment, I might well have expressed myself more clearly, theground of the decision was that there was affirmative evidence that thepremises had been opened for a perfectly lawful and innocent purpose.
In the case of Weerakoon v. Fernando,2 it was proved that theappellant, a tavern-keeper, who was in the habit of sleeping in thetavern, took his dinner elsewhere and returned to the tavern, andthat the door had been opened for the purpose of letting him in. Hewas standing for a moment on the verandah, speaking to a man, atthe time that the Station House Officer came up. There againthere was affirmative proof on the part of the defence that the taverndoor had been opened only for the purpose of allowing the tavern-keeper to do what the law allows him to do, that is to say, to sleepon his licensed premises.
The present case, however, is quite different. There is nothingin the evidence to show that it was not possible for the appellant tohave left the undisposed of balance of liquor at the circus tent undera proper guard till the morning. It is impossible in cases of this kindto lay down any general rule, and it is not desirable to attempt to doso. Each case must be decided on the particular facts that it presents.
I agree with the learned Police Magistrate that here the tavernwas not opened or kept open for a lawful purpose, and that theappellant has committed the offence with which he was charged.The appeal is dismissed.
Appeal dismissed.» 11011) 14 N. L. R. 472.
i (19001 12 N. L. R. 210.