141-NLR-NLR-V-47-CORNELIS-et-al-Appellant-and-EXCISE-INSPECTOR-Respondent.pdf
DE SILVA J.—Cornelia e. Excise Inspector.
407
1946Present: de Silva J.
CORNELLS el al., Appellants, and EXCISE INSPECTOR,
Respondent.
494-5—M. C. Colombo, 9,519.
Illegal possession of excisable article—Excisable article found in house occupiedby husband and wife—No evidence against husband except that he waschief occupier—Inference of guilt—Excise Ordinance {Cap. 42), s. 44.
The mere finding of an excisable article in a house occupied by husbandand wife is insufficient to establish possession of it by the husband ifthere is no other evidence as against him except that he was chief occupier.
A
PPEAL against two convictions from the Magistrate’s Court,Colombo.
H. W. Jayewardene, for the accused, appellants.
J. G. T. Weeraratne, C.C., for the Attorney-General.
June 28, 1946. x»b Silva J.—
The two accused in this case who are husband and wife were chargedwith having been in possession of an excisable article, to wit, about 14drains of arrack which had been unlawfully manufactured in breach ofsection 44 of Chapter 42 of the Revised Legislative Enactments. Aftertrial, both accused have been convicted and the 1st accused was sentencedto undergo three months’ rigorous imprisonment and to pay a fine ofRs. 100 ; and the 2nd accused to pay a fine of Rs. 50.
The evidence shows that, on a complaint made by the wife of theheadman of Talangama, two constables and a sergeant and the headmanwent to search the accused’s house for unlicensed firearms. At thesearch no firearm was found, but the search party found two bottles ofunlawfully manufactured arrack in a cupboard and also on their approachthe 2nd accused rushed inside the house and broke a pot which containedwhat is called goda which appears to be fermented toddy which forms thebase for the manufacture of arrack. They also found a tin containing thesame substance.
In appeal, it is* urged that there is no evidence to show that the 1staccused was in possession of the bottles of arrack which were found in thecupboard. The evidence shows that the 1st accused was the chiefoccupant but, apart from that, there is no other evidence to show that hehad anything to do with the arrack which was found. As far as the2nd accused is concerned, her conduct shows that she was conscious of thefact that the goda and the arrack were in the house and she attempted todestroy part of that evidence. The appellants’ Counsel relies on the caseof Perumal v. Lucia Anthony and another1 and the case of Banda v.Haramanis2. These cases are to the effect that the mere finding of an1 (1937) 10 C. L. W. 21.* (1936) 21 N. L. B. 141.
408
DE SELVA J.—Cornelia v. Excise Inspector.
excisable or other unlawful article in a house occupied by husband andwife is insufficient to establish possession by husband as well as wife.There is no other evidence in this case as against the 1st accused exceptthat he was the chief occupier. Farther, he was not present at the timeof the search.
In the oiroumstances, I set aside the conviction of the 1st accusedand acquit him. The conviction and sentence on the 2nd accused areaffirmed.
Conviction of 1st accused set aside.
Conviction of 2nd accused affirmed.