014-NLR-NLR-V-28-DISSANAIKE-v.-SIRIMALA.pdf
( 129 )
Present: Garvin A.O.J., Lyall Grant JM and Jayewardene A.J.DISSANAIKE v. SIMM ALA.
364—P. C. Gampola, 13,362*
Excise Ordinance—Manufacture of toddy—Ordinance No* 8 of 1912,s* 43 (b).
Aperson who draws toddy and allowes itto be ferment maybe said
tomanufacture fermentedtoddy—anexcisable article,within
the meaning of section 14 (a) of Ordinance No. 8 of 1912.
A
N appeal from an acquittal. The charge laid against theaccusedwas that he hadmanufactured fermentedtoddv
without a licence and that he. was in unlawful possession of anexcisable article—offences punishable under sections 43 (b) tod 44of theExcise Ordinance. Atthe trialreliance wasplaced
on a previous ruling 1 of the Supreme Court that the texm “ manu-facture " was ^ot applicable to toddy. Thereupon the accused wasacquitted and discharged. The Attorney-General's appeal, question-ing the soundness of the authority cited, came up for hearing before theActing Chief Justice, who referred it to a Bench composed of threeJudges.
Grenier, Actiny Deputy S.-G., for Crown, appellant.
Navaratnam, for accused, respondent,duly 22, 1926. Garvin A.C.J.—
When this case first came before me I felt unuhle, having regardto the comprehensive meaning attached to the word “ manufacture "in this Ordinance, the general scheme of the Ordinance, andthe specific use of the expression “ manufacture of toddy ” in severalof its provisions, to assent to the view expressed by Sir Thomas doSampayo in case No. 7,469, P. C. Kandy. The question is one ofgreat practical importance, and I thought it desirable, therefore,that the matter should be referred to a Bench of three Judges forfinal decision of the question.
Having had the advantage of reading the judgments of mybrothers Grant and Jayewardene, I do not think it is necessary toadd anything to what has already been said on the question of themeaning of the term “ manufacture." I entirely agree that theterm is applicable to, and may be correctly used with reference to,toddy.. I desire, however, to add a few words as to the general
1 S. C. Min*, Feb. 27,1922—P. C* Kandy, 7,469.
1926.
1926.
tfARVIN’
A.C.J.
JHssanaike v.
Sitintala
( 130 )
scheme of the Ordinance in so far as it relates to the manufactun ■of excisable articles. The purpose of the Ordinance is to consoli-date and amend the law relating inter olin to the manufacture otintoxicating liquor and intoxicating drugs. The manufacture of in*excisable article is prohibited, except where such manufacture hasbeen authorized by licence (vide section 14). In order to make theprohibition effective the Legislature has thought fit to go furtherand to prohibit and penalize the doing of a number of acts, thetendency of which is to lead to the production of. excisable articles.Accordingly the section proceeds to prohibit the cultivation andcollection of the hemp plant or cacao plant, and to enact that (c)no toddy tree shall be tapped, (d) no toddy shall be drawn fromany tree, (e) no distillery or brewery or warehouse shall be workedexcept under and in accordance with the terms of a licence. Itwill be seen, therefore, that the mere act of tapping a toddy-producingtree is both prohibited and penalized, so also is the act of drawingtoddy from any tree. Toddy means the fermented or unfermentedjuice'from any coconut, palmyra, or kitul, or other kind of palmtree. “ To tap " includes every part of any process by which thespathe or flower of any toddy-producing tree is prepared for thedrawing of toddy. When the flower of a toddy-producing treehas been subjected to tapping as defined above and as a result toddyis obtained, that toddy has been manufactured; and in such acase, in the absence of a licence, the person who did the acts marightly be charged with having manufactured an excisable article,to wit, toddy. Where the natural process of fermentation hasbeen permitted to continue unchecked, and as a result the toddy somanufactured is found to be fermented, a charge of manufacturingan excisable article, which in this instance would be fermentedtoddy, would be in accordance with the provisions of the Ordinance.It is conceivable that one person may manufacture unfermentedtoddy, and that another into whose possession such toddy comesmay be charged in appropriate circumstances with the manufactureof fermented toddy where the natural process has been permittedto continue unchecked resulting in the conversion of unfermentedtoddy into fermented toddy.
The expression “ drawing toddy ” has been the subject ofdiscussion, particularly with reference to fermented toddy in severalcasec under the repealed Arrack Ordinance. It has been held torefer both to the act of extracting toddy from the flower as wellas to the act of bringing away tbe toddy collected in the potattached to the flower. The acts of' tapping the flower andcollecting toddy are penalized under the Excise Ordinance as beingthe manufacture of an excisable article. It is therefore open toquestion whether section 14 (d) includes, not only the act of bringingaway from the tree the toddy already collected as a result of the
( 131 )
tapping of the flower, but the whole process of extracting toddyfrom the flower. It seems improbable that the act of extractingtoddy is penalized both under the head manufacture *' and alsounder the clause relating to the drawing of toddy.
The scheme of the Ordinance is complete in the view that by-Irawing is meant bringing away from the t-ree—the word beingused in a sense similar to its use in the expression “drawing water.”
The result of this examination of the Ordinance is as follows: —
To tap a toddy-producing tree even though no toddy has in factbeen produced thereby is an offence.
To tap a tree and extract toddy is to manufacture an excisablearticle.
To draw toddy from a tree though the toddy may have beenproduced by the acts of another is an offence.
To convert toddy though it has been produced by the acts ofanother into fermented toddy is to manufacture anexcisable article.
The order of acquittal is set aside, and the case sent back fortrial and determination in due course.
Lyall Gjiaxt J.—
We are asked to review a judgment in which Mr. Justice d<*rfampayo held that the expression “ manufactured ’’ as used in theExcise Ordinance, No. 8 of 1912, does not apply to the process. of getting toddy. He further holds that the expression is notapplicable to toddy at all, but applies only to arrack and otherliquors.
With great respect to the learned Judge 1 arn not inclined toagree with this interpretation of the Ordinance. Toddy is clearlyan excisable article under the Ordinance.
Section 3 contains the following definitions:“Excisable
articles*’ means and includes any liquor or intoxicating drug asdefined by this Ordinance (sub-section (13)).
Sub-section (8) defines liquor as including spirits of wine, spirit.
wine, toddy, &cToddy is defined as the fermented
or unfermented juice drawn from any coconut, palmyra, kitul orother kind of palm tree.
Sub-section (17) defines “ manufacture “ as including everyprocess, whether natural or artificial, by which any excisable articleis produced or prepared.
Section 18 of the Ordinance provides for the Governor grantingthe exclusive privilege to any person for manufacturing ….any country liquor.
Country liquor is defined in section 3, sub-section (9), as meaning;iny liquor manufactured in Ceylon on which excisable duty is notleviable at rates levied on imported liquor.
1926.
Garvin
A.C..T.
Diesanaike >*.Sirinwla
( 132 )
1926.
LyailGrant J.
Dismnaike v.Sirimala
That toddy is intended to be included in the expression “countryliquor ” is dear, not only from this definition, but also fromsection 19, which refers to the privilege of manufacturing andselling toddy under section.,18.
Again, section 17 (1) refers to a person being licensed tomanufacture and sell toddy.
Section 14 (a) prohibits the manufacture oi excisable articlesexcept under licence.
These sections in combination make it quite clear to my mindthat Government intended to prohibit every process in the prepar-ation of toddy except under licence, that is, that it included everysuch process under the term “ manufacture.
The difficulty the learned Police Magistrate seems to havoexperienced in applying this term “ manufacture ” to toddy appear*in part at any rate in the provisions of section 14 (c) and (d), whichrespectively make it an offence for a toddy-producing tree to betapped and for toddy to be drawn from any tree.
It is conceivable, however, that circumstances might arise underwhich the 'Crown might find it easier to obtain a conviction underone or other of these sub-sections rather than under sub-head (a),and I cannot see that the addition of these sub-sections to theOrdinance can affect the interpretation of sub-section (a), which i*quite clear in itself.
I agree that this appeal should be allowed.
Jayewaudkxk A.J.—
This case has been referred to a Bench of three Judges bmy Lord the Acting Chief Justice in view of an unreported rulingof this Court in P. C. Kandy, 7,469 (Supreme Court Minutes ofFebruary 27, 1922), in which it has been held that the expression“ manufacture “ as used in the Excise Ordinance of 1912 is notapplicable to toddy but has reference only to such articles as arrackand liquors.
In the present case the accused was charged with having*manufactured an excisable article, to wit, fermented toddy, withouta permit from the Assistant Government Agent, in breach; ofsection 14 (a) of he Excise Ordinance, and also with possessing anillicitly manufactured excisable article, to wit, toddy, in breach ofsection 44 of the same Ordinance—offences punishable under section*43 (b) and 44 of the Ordinance. At the trial the Proctor for theaccused took the preliminary objection that the charges did notdisclose the commission of an offence known to the law, and citedthe judgment of this Court in the Kandy case referred to above insupport of liis contention. The learned Police Magistrate rightly
( 133 )
upheld th<» contention, in view of the judgment cited to him, andacquitted the accused. He said—
Before any evidence was led in this case, Mr. van Laugenbergbrought to my notice a judgment of the Supreme<*ourt, in Kandv case No. 7,460. in which Mr. Justice dcSampayo holds that “the expression ‘manufacture*in the Excise Ordinance does not mean any part of theprocess of getting toddy.” The judgment continues—the fact appears to be that the expression is not appli-cable to toddy at all, but lias reference to such articlesas arrack and other liquors.
Section 10 of Ordinance No. 8 of 1912 was pleaded in supportof a contrary interpretation of the Ordinance, and the* factthat fermentation is artificially stimulated. But in viewof the Supreme Court judgment the consideration of thatpleading lies outside my purview, and I dismiss this caseon the point of law—on the second charge no less than thefirst—for if toddy cannot be manufactured it is evidentthat illicitly manufactured toddy cannot be possessed.
The Attorney-General appeals against the Magistrate's judgmentof acquittal, and challenges the correctness of the ruling in theKandy case. The question presented for our decision is: Whetherthe judgment of this Court in the "Kandy case is right? Eor thepurpose of answering that question we have to decide whetherfermented toddy is a manufactured article or not. The expression“ manufacture ” according to the interpretation section (No. 3)of the Excise Ordinance—
‘ ‘ Includes every process, whether natural or artificial, by whichany excisable article is produced or prepared, and alsore-distillation, and every process for the rectification,flavouring, blending, or colouring of liquor. ”
The essence of “manufacture” therefore is. that it is a “process."The term “process” is not defined in the Ordinance, but accordingto the Oxford Dictionary means “a continuous and regular actionor succession of actions taking place or carried, on in a definitemanner and leading to the accomplishment of some result; acontinuous operation or series of operations; a particular methodof operation in any manufacture.” The Imperial Dictionarydefines it as ” a series of motions or changes going on in growth,decay, &cin physical bodies, as the process of vegetation .ormineralisation; the process of decomposition,” and I may add.the process of fomentation. The process may be either natural* orartificial according to our statutory definition. Learned Counselfor the respondent very frankly admitted that the juice of the palmtree becomes fermented by a natural process, and lhat. to prevent
1926*
•I AYEWAlt-
1>KNB A.J .
Dixsaikaike'i'.
Sinimrla
1926.
. •Taykwaji-riEKB A.J.
JJissanaikc rflirimnht.
( 134 )
fermentation setting iu, the pot into which the juice flows has to belimed or have some hal bark placed in it. If so, it becomes impossibleto resist the conclusion that fermented toddy is “manufactured*'
. according to the meaning attached to the expression “ manufactureas used in the Excise Ordinance. Ordinarily, it sounds strangeto speak of manufacturing toddy or fermented toddy. We- speakof tapping trees and drawing toddy, but we overlook the naturalprocess the juice undergoes in the receptacle before it becomesfermented toddy. The Ordinance, no doubt, as pointed out byDe Sampayo J. in that case, speaks of “ tapping trees for, anddrawing toddy and there are separate provisions with regard tothem. See sub-heads (c) and (d) of section 14 and sub-heads (d)and (e) of section 4-3. “To tap,” as defined in the Ordinance;(section 3), “ includes every part of any process by which the spa theor flower of any toddy-producing tree is prepared for the drawingof toddy,” and “toddy” means “fermented or unfermented juicedrawn from any coconut, palmyra, kitul, or other kind of palmtree.” The term “ drawing toddy ” is not defined in the Ordinanceand some difficulty has been caused by the use of this expressionin connection with fermented toddy. The repealed “ Arrack, Rum.and Toddy Ordinance, No. 10 of 1844,” did not refer specifically to“ tapping ” or “ manufacture ” of toddy, but only to “ drawing ”toddy (see section 46); and iu Pcrera v. Charles,1 where the accusedwas charged with drawing fermented toddy, and the Magistratehad acquitted the accused as the offence of drawing fermentedtoddy which the Ordinance had penalized was a physical impos-sibility, Clarence »T. reversing the decision said: —
“ ff by ‘ drawing toddy ’ the Ordinance is to be understood asintending the mere extraction or expression of the juicefrom the cut flower stem of the palm, then no doubt thejuice cannot bo so drawn in a fermented state. But as 1understand the native usage in this matter (and upon_ this point I have availed myself of the assistance of mybrother Dias) the toddy ferments in the pots as they hangsuspended in the tree, and when it is desired to check thatfermentation hal hark is placed in the pots. If toddy isallowed to ferment in the pots as they hang onthe tree and is then in its fermented state brought awayfrom the tree—that is what, as I conceive, the Ordinanceintended by * drawing ? fermented toddy.”
The same question arose in Dingiri Mudiansc v. Pinsetuwa,2and this Court upheld the view taken by Clarence J. And Monerieff
C.J. said that he was not quite able to understand why toddyslviuM not- be the less drawn because the pot into which it is drawn
* (1880) 9 8. C. C. 19.
M1902) 6. N. L. R. 14.
( 135 )
is attached to the tree. The same phraseology had been con- 1884.tinued under-the present Excise Ordinance, although tapping a treelor toddy, and drawing toddy, are treated as distinct operations dhhbAJ.for which separate licences are required and are classified as die- joiatmaike 4.tinet offences under section 43. Thus licences are issued by. the Strimataauthor ties under the Excise Ordinance for “drawing fermentedtoddy ” and in the official notifications these licences are referredto as " licence for drawing fermented toddy. ” The use of thisexpression was criticised by Dalton J. in his judgment in Lockhartik Learie ,* where he said that—
“ The phrase ‘ to tap for fermented toddy is strictly speakinga misapplied term, although it appears to be in commonand official use. ’’
He adopted the view taken by Clarence J. in Perera-i)^ Charles{supra), although the provisions of the Excise Ordinance differfrom those of the repealed Ordinance of 1844.
The Ordinance itself uses the expression “ manufacture ” inconnection with toddy. Thus, under section 17: “ No excisablearticle …. shall be sold without a licence from theGovernment Agent; provided that—
“ (1) A person having the right to the toddy drawn from anytree may sell the same without a licence to a personlicensed to manufacture aud sell t''d<hj under this Ordinance
:ind again under section 19—
“ When any exclusive privilege of manufacturing and selling toddyhas been granted under section 18, the Governor may declarethat the written permission of the grantee to draw toddyshall have the same force .and effect as a licence from theGovernment Agent for that purpose under section 14.
The use of this expression in connection with toddy cannot- boignored, ^and must be given a meaning if possible. Fermentedtoddy is, in my opinion, obtained by three operations:first, by
tapping the tree; second, by drawing the juice or sweet toddy:third, by allowing the tojldy drawn to ferment. The last operationcan be described as the “ manufacture ” of toddy. If these districtoperations, which are specifically referred to in the Excise Ordi-nance are borne in mind, the phraseological difficulties which arosein the eases I have referred to need no longer arise. In fact, eachof these operations or processes may be regarded as a stage in themanufacture of fermented toddy.
In view of these considerations it seems to me impossible to saythat the word “ manufacture ” is not applicable to toddy. In myopinion, any person who allows the juice of a palm tree to remain in a> (1925) 6 Law R&-. Ii«p. 1-3.1.
1926,:
JaVKWAK-5.
Dink
Jh'&lUlUtikc- i
SHrivrvda
(. 130.)
pofe or other receptacle long enough to become fermented “ manu-factures ” fermented toddy, and his action would fall- within the;provisions of the Ordinance, which prohibit and penalize the.. manufacture of an excisable article, in certain circumstances.
'* With all deference to the eminent Judge who decided the Kandycase, 1 do not think the decision on that case can be regarded assound. 1 would, therefore, set aside the order of acquittal, andnirhit the case for trial in due course.
Set aside.