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Present: Jayewardene A.J.
FERNANDO v. ANDRAYAS.331—P. C. Galle, 39,161.
Decoy—Excise Ordinance—Charge of selling arrarl; without a licence—Uncorroborated testimony of decoy.
In a charge of selling arrack without* a licence it would not hesafe to convict on the uncorroborated testimony of a decoy.
^ PPEAL from a conviction by the Police Magistrate of Galle.
Abeyewardene, for accused, appellant.
Crossette Thambiah, C.C., for Crown, respondent.
June 4, 1930. Jayewardene A.J.—
The accused was charged with selling arrack without a licenceand convicted, and sentenced to pay a fine of Rs. 250, and alsoto undergo six weeks’ imprisonment. The evidence for theprosecution consists of that of the excise inspector and Harmanis,a decoy. As regards the actual sale there is only the evidence ofthe decoy. He states that the inspector gave him a rupee-noteat the Excise Station and told him to go to the accused’s houseat China Garden and to drink arrack. He says that he went asordered and bought Re. 1 worth of arrack and had two drinks,giving the money to the accused. The excise party rushed in andseized the accused. The accused was searched and Rs. 2.38 wasfound, including the rupee given by the inspector. He says thatthe inspector found three bottles of arrack in the room adjoiningthe one in which he was. The inspector states that he searchedHarmanis before sending him on this errand and handed him arupee-note, No. H/56 18593, and told him to go to accused’s houseand to keep on drinking till the inspector arrived. He went alongwith four excise guards by car, stopped his car opposite accused’shouse, and rushed into the house. He saw Harmanis in the first room,and accused rushed to the second room, and he caught the accusedthere. He found Rs. 2.38 in his waist, including the rupee sent byhim. He found an unopened bottle and a bottle, with two dramsnear a packing case. The excise guard, Baby Singho, found anempty bottle smelling of arrack.
In his defence the accused stated that he was leaning against astreet lamp-post when the inspector came in a car and arrested himand took him to Magalla Excise Station. He denied that theinspector came inside his house at all. He says that this exciseinspector raided his house unsuccessfully in August, 1929, and hepetitioned against the inspector, and inspector had threatened to
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come again. The accused called two witnesses, D. W. Waidva-ratne, who is a superintendent of school works, Galle, says thathe saw the accused leaning against a lamp-post and talking to someone. This witness went about 100 feet and noticed the glare of acar light and got on to a side. He looked back as the car did notappear to move. The car passed him and he heard a man citingout .that he had been done an injustice. The accused came to himthat very night at about 10.30 p.m. and told him what had happenedand wanted him to give evidence. He says that about five minuteselapsed between his noticing the glare of the car lamp and the c?.rpassing him. W. Goonetilleke is a retired police sergeant. He saysthat he saw the accused leaning against a lamp-post and talking to aman when a car came and halted and the excise party got down andheld the accused and took him to the car. He says that they didnot go inside the accused’s house. The learned Magistrate does notthink that Goonetilleke is speaking the truth but he seems to acceptthe evidence of Waidyaratne. There is no reason to disbelieve thiswitness, apparently a person of some status and respectability.The Magistrate attempts to reconcile the evidence of this witnesswith the statements of the inspector and Harmanis. He says thatprobably the accused after serving the drinks went towards the roadto see if any suspicious persons were about, and seeing the inspector'scar coming he rushed into the room to conceal the bottles. Hethinks that Waidyaratne saw the accused leaning against the postwhen he was “ thus watching on the road after the drink was served.”In the first place I fail to see what there was to watch after the drinkswere sold. It would have been safer to conceal the bottles at once,rather than to come out to the street to watch. To my mind thestatements of the inspector and Harmanis on the one side andWaidyaratne on the other are irreconcilable. Harmanis says thatthe accused went inside the house with the money and the arrackwas brought from the adjoining room, and that the accused wantedto rush away when the excise party rushed in. There was no hintin his evidence that the accused at any time left the house andwas leaning against a lamp-post. talking to some one as stated byWaidyaratne. The inspector says that he stopped his car opposite,the accused’s house and rushed inside the house. He saw Har-manis in the first room, and accused rushed to the second room,apparently from the first room, where Harmanis was, and he caughtthe accused there. ' There is no suggestion that the accused' rushedinto his house from the street. The inspector and his guards wouldprobably by the car lights have seen the accused rush in from thestreet, if he did so. The accused gave evidence and was cross-examined, hut was asked no question to suggest that he was in thestreet when the car arrived.
The inspector says that he handed this rupee-note to Harmanis,but he does not say that he made any note of its numbers. He
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seems merely 40 rely on his memory. The ease has to rest entirelyon the evidence of the decoy. A person should not be convictedon the uncorroborated testimony of a decoy (Caldera v. Pedrick l).As in that case, the bottles smelling of arrack, and the one with twodrams, and the unopened bottle may have been easily introducedeven if they were found in accused’s house. There are severalelements of doubt in this case and it would be unsafe to convictthe accused.
I set aside the conviction and acquit the accused.
FERNANDO v. ANDRAYAS