027-NLR-NLR-V-46-EXCISE-INSPECTOR-KANDY-Appellant-and-PUNCHI-MAHATMAYA-Respondent.pdf
Excise Inspector, Kandy and Pttnckimahalmaya.
1845
Present: Howard C.J.
EXCISE INSPECTOR, KANDY, Appellant and PUNCHI-MAHATMAYA, Respondent.
053—M. C. Kandy, 34,976.
Joint charge against two persons—Unlawful possession of arrack—No evidenceof guilty knowledge against one—Joinder of accused—Exclusive possession.The first- and second accused, the driver and (he conductor of a bus,were jointly charged with the unlawful possession of seven bottles ofarrack.
The evidence established that under the driver's seat was a box,which contained three bottles of arrack and under the seat occupied bythe conductor were four bottles wrapped in a bag and that the latter wasseen pushing the parcel containing the bottles under the seat.
Held', that there was no misjoinder of charges and that the fact thatthe * evidence failed to establish guilty knowledge against the first accuseddid not make the joinder of the accused in one trial bad.
Held ■ further, that the evidence established actual and exclusivepossession by the second accused.
HOWABD G.J.—Excite Inspector, Kandy and Punchimahatmaya.
89
^ PPKAL against an acquittal by the Magistrate of Kandy.
E. H. T. Gunasekera, C.C., for the complainant, appellant.
G. E. Cliitty for the accused, respondent.
Cur. adv. vult.
January 31, 1945. Howard C.J.—
This is an appeal with the sanction of the Attorney-General from anorder of the Magistrate at Kandy, acquitting the respondent on a chargeof having on June 20, 1944, committed an offence punishable undersection 43 (a) of the Excise Ordinance in that he, together with anotherperson the first accused in the case, had in their possession without a .permit an excisable article, namely, 24 drams of arrack, in breach ofsection 16 of the said Ordinance. The prosecution established thefollowing facts: —
(a) The two accused were the only occupants of a bus which was haltedat a bus stand in Kandy, the first accused the driver being seatedin the driving seat and the respondent the conductor in a seatimmediately behid it.
f6) A party of Excise Officers on approaching the bus in a car saw therespondent trying to push something Hnder the seat.
(c) The Excise Officers got out of the car and found under therespondent’s seat four bottles of arrack wrapped in a mat bag.Under the driver’s seat in a box were found three bottles ofarrack. The bottles contained 8 drams each and were sealedwith Government warehouse seals.
At the close of the case for the prosecution, the Magistrate after hearingargument held that the respondent, the second accused, knew that the•parcel under his seat contained arrack, but there was no evidence to provethat the first accused knew the contents of this parcel. He Further heldthat the first accused should have been separately charged with thepossession of three bottles of arrack and the respondent with four bottlesof arrack and that there had been a misjoinder of charges. He thereforeacquitted the accused. The complainant has appealed aganist theacquittal of the respondent, the second accused.
Section 184 of the Criminal Procedure Code is worded as follows: —
"When more persons than one are accused of jointly committing thesame offence or of different- offences committed in the same transactionor when one person is accused of committing any offence and another ofabetment of or attempt to commit such offence, they may be chargedand tried together or separately as the Court thinks fit; and the provi-sions contained in the former part of this chapter shall apply to all suchcharges.”
The respondent »nd the first accused were accused of jointly being inunlawful possession of seven bottles of arrack. The evidence, according tothe Magistrate, failed to establish the guilty knowledge of the first accused.This fact, however, does not make the joinder of the two accused in onecharge bad. The section deals with , three matters, accusation, chargeand trial. It says nothing about verdict. In this connection I would"
90
HOWARD C.J.—Excise Inspector, Kandy and Funchimahatmaya.
refer to the ease of Babulal Ciioukhani v. King Emperor ‘. In my opinionthe Magistrate was wrong in holding there was a misjoinder of charges. Iflie had come to the conclusion that there was no evidence against the firstaccused, he should have discharged him and considered the case madeagainst the -••spondent, the second accused.
Counsel for the respondent has put forward the further contentionthat, even if the Magistrate was wrong in holding that there was a mis-joinder of charges, there was no evidence to establish that the respondentwas in exclusive possession of the four bottles of arrack under the seat.It is suggested that the parcel may have been left by a passenger wholeft the bus when it stopped or possibly put there by a passenger boardingthe bus after it had stopped. The appeal being from a finding of “ notguiltv ’’ it is urged that it can only be allowed if it is manifest that therehas been a miscarriage of justice. With regard to the question as towhether the prosecution have established the sole and exclusive possessionof the respondent, I have been referred to the cases of Excise Inspector v.Maril.arKhan v. Kanapathy and. four others 3, and Wijemannc v. Sinna-
thamlui '. In Wijemanne v. Sinnatliamby, opium was found under thepillow of the bed occupied by the accused. There was, however, nothingin the conduct of the accused, either before or after the discovery of theopium, to indicate that lie knew it was there. In the present case therespondent was seen pushing the parcel containing the four bottles ofarrack under the seat. In Khan v. Kanapathy (supra) stolen property,consisting of the carcases of five goats and one live goat, were foundin a car in which seven persons were travelling. There was no evidenceto show that any one or more of the accused put the stolen propertyin the car or was responsible for it being found there. In these circum-stances it was held that the prosecution had not discharged the onus■which lay on it to prove that one or more of the five accused were in actualexclusive possession of the stolen property. In Excise Inspector v. Marik-7car (supra) the accused was charged with unlawful possession of ganjawhich was found under a low platform in the verandah of his boutique.At the time of the discovery there were in the boutique about 6 or 7•people including salesmen. Moreover 3 or 4 salesmen ate and sleptin the boutique. It was held that there was no proof of actual akidexclusive possession by the accused. I
I think the various cases cited can be differentiated from the factsof the present case. The case put forward by the Crown has establishedactual and exclusive possession by Ihe respondent. In these circum-stances there has been a manifest miscarriage of justice. I need hardlysay that the respondent must be afforded an opportunity of givingevidence and calling witnesses. I set aside the order of acquittal anddirect that the case be remitted to the Magistrate so that he may call•upon the respondent for his defence.
Order set aside; case remitted to the Magistrate.
1 39 Cr. Law Journal 1928, p. 432.■‘ .8 Times of Ceylon 65.
3 9 C. L. W. 21.
* 9 C. L. W. 165.