005-NLR-NLR-V-57-FERNANDO-Appellant-and-GOONEWARDENE-Respondent.pdf
1955Present : Sansoni J.
FERNANDO, Appellant, and GOONEWARDEXE,Respondent'S. C. 496—JI. C. Colombo South, 62,792 '
Kxcisc Ordinance—Section -id—Unlawfully manufactured liquor—Evidentiary valueof Government Analyst's report..
– In nT prosecution under section 41 of the Excise Ordinance for possession ofunlawfully manufactured liquor the report of the Government Analyst is’evidence, even though ho is not- called to testify in person.
A 'XjlPPKAXi from a judgment of the Magistrate’s Court, Colombo South.
S. JB. Lekamge, for tho accused appellant.
– Ian Wikramanayalre, Crown Counsel, for tho Attorney-General.
..Cur. adv. viilt.
August 24, 1955. Saxsoxt J.—-
Tho accused in this case was charged with having in his possessionwithout lawful authority 7 gallons and 2 drams of unlawfully manufac-tured licpior in breach of S. 44 of the Excise Ordinance. The defenceraised was an alibi which was disbelieved.
Tho only point urged in appeal was that the prosecution failed to provethat tho liquor was unlawfully manufactured.
Tho evidence led by tho prosecution on this point was the report ofthe Government Analyst who found on examination that tho samplesP 2, P 4 and P G of the liquor sent to him contained 6%, 5*7% andG■ 7% by volume of alcohol respectively. He also reported :
Tho characteristics of P 2, P 4 and P G arc not similar to those ofsamples of either approved brands of imported liquors or liquorsmanufactured under licences issued, under the Excise Ordinance.
“ In my opinion P 2, P 4 and P G are liquors which do not fall underthe following categories :—
Approved brands of imported liquors,
Liquors manufactured under licences issued under tho ExciseOrdinance. ”
It is argued, however, that in spite of this report the prosecution hasfailed to ostablish that the liquor seized in the a-ecuscd’s possession wasunlawfully manufactured, and I have been referred to tho judgment ofEfagalingam S. P. J. in liamsamy Kona v. CUnigalhena Police1. I wouldpoint out that the report of the Government Analyst in that case didnot say that the liquor which was the subject matter of the charge wasnot a liquor which has been manufactured under licence issued by theExciso Commissioner, and the learned Judge hold that the prosecutionhad failed to exclude the possibility of the liquor having been manufac-tured under a licence. But the report furnished in this case docs excludethat possibility, and says expressly that tho liquor seized is not a liquormanufactured under a licence issued under the Excise Ordinance. Thisis sufficient to bring it within the category of an unlawfully manufacturedliquor.-
Nagalingam S.P.J., however, also added that when theGovernment Analyst said in his report that tho liquor seized was notmanufactured under a licence issued l>y the Excise Commissioner ho
1 60 -V. L. li. J04.
is giving utterance to sonic information which he lias probably obtainedfrom tho Excise Commissioner himself. The Government Analystcannot say of his own knowledge what licences liavo been issued by theExcise Commissioner With respect, I an! not prepared to take thisview of the Analyst’s means of knowledge in the absence of further proof.It is not, it seems to mo, a necessary inference that the GovernmentAnalyst was acting on hearsay, for there is nothing in the record whichcompels mo to arrive at that conclusion. Tho Analyst's roport is ovidenco,even though lie was not called to testify in person.
If tho defenco intended to raise an objection-to tho contents of thereport on the ground that certain findings made by tho GovernmentAnalyst should he disregarded for any particular reason, tho GovernmentAnalyst should have been summoned and cross-examined on his moansof knowledge, or the sources of his information. No such course wasadopted by the defenco. It- was therefore quite permissible for the learnedMagistrate to act upon the report and that is what lie has done. Havingregard to the terms of the report I think the prosecution has provedthat the liquor in question was unlawfully manufactured. Tho appealis dismissed.
Appeal dismissed.