Dunutoilla v. Poola.
1939Present: Soertsz, A.C.J.
DUNUWILLA v. POOLA et al.
8,889—M. C. Kandy, 60,786.
Unlawful possession of toddy—Toddy found in house occupied by husband and
wife—Presumption regarding possession—Excise Ordinance, s. 50.
The first and second accused, husband and wife, were' living togetherin a house in which fermented toddy was found. On the approach of theExcise officers the first accused started, to run away, the second accused,who was in the compound rushed in and broke a pot in the kitchen andfermented toddy was spilt on the floor.
Held, that the first accused, the husband was guilty of unlawfulpossession of the toddy but not the second accused.
Simon v. Jessinona (4 C. L. W. 49), Samaraweera v. Babee (4 C. L. W.48), referred to.
^^PPEAL from a conviction by the Magistrate’s Court of Kandy.
L. A. Rajapakse, for the accused, appellants.
D. Jansze, C.C., for the complainant, respondent.
Cur. adv. milt.
> 38 X. I,. R. 92.
SOERTSZ A.C.J.—Dunuwilla v. Poola.
June 6, 1939. Soertsz A.C.J.—
As Ennis J. observed in Simon v. Jessinona’, r‘ the question whetheror not a person who lives in a house in which fermented liquor is foundis in possession of that liquor is one of fact For this observation,he based himself on the case of Excise Inspector, Ambalangoda v. Podi-sinno *.
In the case before me, the facts as found by the learned Magistrate arethat the first and second, accused are husband and wife living together ■in. the house in which the offending fermented toddy was found. The^Magistrate in the course of his judgment says, “When the Excise partyapproached the house first accused started to run away …. Ihave no doubt that the quantity of fermented ttfddy spoken to by theInspector was found in the kitchen of that house. Second accused wasin the compound when the Excise party were approaching. She rushedin and broke a pot in the kitchen and fermented toddy was spilt- on thefloor. Her conduct stamps her with guilty knowledge of the presence ofthat toddy in the other pots. Her defence is that there was no toddy*in the house that day and that she did not break a pot …. Ihold that second accused is guilty of possession of the fermented toddyin the kitchen of her house
In this view of the case, the Magistrate sentenced the first accusedto a term of four months’ rigorous imprisonment, and imposed a fine ofRs. 300 on the second accused, in default of payment, six weeks’ rigorousimprisonment.
I agree with the view taken by the Magistrate that the first accusedwas in possession of this toddy. It was found in the kitchen of the housein which he lives with his wife. As I had occasion to point out in the caseof Samaraweera v. Babee3 the presumption is that the house occupiedby a married couple is in the possession of the husband rather than of thewife. The Magistrate rightly, I think, inferred conscious possession ofthat toddy on the part of the husband, from his flight on the approachof the Excise Party. The Magistrate rejected his denial of his presencein the village on this day. The result' is that the first accused has notaccounted for the presence of the toddy in his house in a manner consis-tent with his innocence. He was, therefore, rightly convicted.
The question that arises for consideration is whether on these factsthe second accused too can be said to have been in possession of thetoddy. I do not think she can. All that can' be found against heron the evidence before me is that she was well aware that her husbandwas carrying on an illicit trade in toddy, and that on the approach of theExcise party she tried to make evidence of the commission of an offenceto disappear in order to screen her husband. It might even be said thatshe probably helped her husband in this trade, in a wifely sort of way.But the fact seems clear that the toddy was toddy brought into the houseby the husband, and was toddy under his control and at his beck andcall, at the time the Excise Party visited their house. There can, no* 4 Ceylon Latr Wc.clly 49.- 2 Times Law Reports 148.
z4 Ceylon Law Weekly 4$.
SOERTSZ A.C.J.—Dunutoilla v. Poola.
doubt, be cases where a wife occupying a house with her husband, may beheld to be in possession of something that is the subject matter of anoffence. For instance, there are cases in which a wife has been convictedof being in unlawful possession of excisable articles, when at the time theoffence was discovered, she was found to be in possession of the key of abox in which the articles were kept, and her husband was absent fromhome, and she had not given evidence to show, for example, that she hadbeen given the key by her husband, or by some other inmate of the house.Similarly in the case of Gooneratne v. Ukku where over four gallons oftoddy were found in a house in which the accused woman, her twoassociated husbands, and another woman lived, and where the accusedwho was alone in the house at the time, threw away a vessel whichmust have contained toddy to judge from its smell, Shaw J. upheld theconviction because she had not rebutted the presumption that aroseunder section 50 of the Excise Ordinance.
In the present case, on the facts as deposed to by the prosecutionwitnesses, the presumption that arose under that section arose againstthe fleeing first accused. It probably would have been different if at the■ time of the raid, the second accused was the sole occupant of the house,and did not account for the presence of the toddy satisfactorily.
I find a case reported in 4 Cox 272, in which a husband and wife and aboy aged ten were charged with having in their possession a mould onwhich was impressed the obverse side of a shilling. The boy had beenarrested when passing a counterfeit half-crown. When the Policesearched the house in which the boy lived, the husband was found in anupper room, Several moulds and other coining instruments were foundin a room 'below. During the search, the wife came in and destroyedone of the moulds. She • was in possession of counterfeit shillings.There were no counterfeit coins on the husband. Telford J. ruled thatas the mould was found in the room of a house occupied by the husband,he must prima facie be presumed to be in possession of what that roomcontained, but it was only a presumption that might be rebutted. Ifthe Jury were satisfied that the husband was in possession of the mould,they ought to acquit the wife, as she could not, in law, be said to haveany possession separate from her husband : but that if they thoughtthat the criminality was on her part alone, and that he was guiltless,she might be convicted ; that either husband or wife might be convicted onthe evidence, but not both. The fact that the wife attempted tc> break upcoining instruments at the time of her husband’s apprehension, if donewith the object of screening him, is no evidence of possession. He furtherruled that in regard to the boy, it would be going too far to say that hewas in joint possession with either of his parents.
If I may say so with respect, that is a correct statement of the law,and applying it to this case, I must find the second accused not guiltyof the offence with which she was charged.
I set aside her conviction and acquit her.
> 7 C. ir. n. vn;.
DUNUWILLA v. POOLA et al