254 ABRAHAMS C.J.—Excise Inspector, Nawalapitiya v. Menikrala.
1936Present: Abrahams C. J.
EXCISE INSPECTOR, NAWALAPITIYA v. MENIKRALA.
392—P. C. Gampola, 9315.
Excise Ordinance—Licence to draw sweet toddy—Employee not carrying out■ instructions—Liability of holder of licence—Ordinance No. 8 of 1912,s. 50.
Where a person who held a licence to draw sweet toddy gave instruc-• tions to prevent fermentation, which were not carried out by those in hisemployment,—
Held, that the holder of the licence was liable under section 50 of theExcise Ordinance.
The meaning of the term “ person in his employ ” explained.
^J^PPEAL from a conviction by the Police Magistrate of Gampola.
. Cyril E. S. Perera (with him G. E. Chitty), for accused appellant.
M.F. S. Pulle C.C., for Crown, respondent.
October 12, 1936. Abrahams C.J.—
. It is not clear to me whether or not the learned Magistrate. acceptedthe statement of the appellant as to the instructions he gave to his wife,and his brother-inrlaw, but on the assumption that he did so I am of the
AKBAR J.—Ramalingam v. Velupillai.
opinion that the appellant is nevertheless responsible. He gave instruc-tions for the manufacture of sweet toddy which he of course knew wouldbe converted by the process of nature into fermented toddy unless meanswere taken to arrest fermentation. These means were not taken by hisbrother-in-law, and the appellant is responsible under section 50 of theExcise Ordinance (No. 8 of 1912).
It is objected on the appellant’s behalf first, that his brother-in-lawis not his servant, and secondly, that he took all due and reasonableprecautions to prevent fermentation. Section 50, however, does not usethe term “ servant ” but the term “ person in his employ ”, and I do notconsider that these terms are for the purpose of this enactment synony-mous. The class of person engaged in toddy-tapping is hardly likelyto be in a position to pay anyone whom he enlists to help him in his .occupation, and any helper may fairly be considered to be in his employ.As to the precautions he says he took, they did not go far enough. Hecould himself have lime-coated the vessel which was to be used, and thequestion is whether it would be unreasonable to require him to do so.
I say no to that question and dismiss the appeal.
EXCISE INSPECTOR, NAWALAPITIYA v. MENIKRALA