104-NLR-NLR-V-05-FERNANDO-v.-MIRANDO.pdf
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FERNANDO v. MIRANDO.
P. 0., Negombo, 29,300.
1901.
December 11.
Arrack Ordinance, No. 10 ■ of 1844, as. 28, "82—Permit to remove, andconsume arrack—Form E in s. 33.
In a prosecution under section 32 of the Arrack Ordinance for being in un-lawful possession of arrack, it is no defence to justify possession under a-permit which -is not in. accordance with the‘Form E mentioned in section 33,and. does .not set out either the true name of the person authorized to removethe arrack, or the name of the, place to which it was intended to be removed.
T
HE facts of the case appear in the following judgment of theChief Justice.
Bawa, for accused, appellant.
De Mel, for respondent.
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I90i. 20th December, 1901. Bon’ser, C.J.—
December 11.„
—'""this is an appeal from a conviction under section 32 of Ordinance
No. 10 of 1844, for being in unlawful possession of three gallonsand two gills of arrack. The appellant is the headman of a villagecalled Etukal.
It appears that a number of persons in the village were mindedto carry on a public lottery lasting for several days, which theyallege—but, I hope, not truly—“was for the purpose of the villagechurch. In order, apparently, to induce the people to risk theirmoney, the committee treated them to arrack, and on the 20th ofSeptember a mart called Siman Croos, said to have been one ofthe Committee, sent to the tavern at Negombo for four gallons ofarrack for free distribution among the persons, attending thelottery. He says he did not wish his name to appear as thepurchaser—no doubt, because he was ashamed—and so he sent acarter of his, Abilino^ and told Abilino to represent him and takeout the permit required for its removal in his own name. Thepermit was accordingly issued in. these terms:—“ This is to“ certify that Abilino has my permission to remove four gallons of'* arrack in three casks from tavern No. 2, Udayar, to Palangature‘‘within four hours, and there to consume the same within forty-“ eight hours.”
This permit is not in accordance with the facts. It was neverintended to take the arrack to Palangature, which was a miledistant from Etukal. It was taken to Siman Oroos’ house, andthence removed to the house of the appellant and delivered tohim.
It is alleged that he was put in charge of this, and he was todistribute it amongst the populace. A quantity of it had beendrunk, when the arrack renter’s peon appeared on the scene andtried to seize the arrack, which the appellant refused to allowhim to do. The appellant in hjs own evidence admitted that he• had the arrack on that day, and it seems to me that he could notdispute the fact.
Now, according to the Ordinance, the possession of arrack is anoffence, unless the. possessor can bring himself under certainexceptions set out in section 32. One of these, under which theappellant sought to bring himself, is, that the spirit. ‘1 shall have“ been purchased from the licensed retail dealer of the district“ within which it shall be possessed; and provided further, that the“ possessor of any such' spirit shall, when' necessary have taken■' out the certificate or certificates required by the 28th clause
of the Ordinance.” Now, it is clear that he was not the
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purchaser, and even if he was, the required certificate had notbeen taken out in accordance with the Ordinance. The permit,as I said, varied in certain material particulars from the formrequired by- the Ordinance. The Ordinance requires the realpurchaser's name to appear, as well as the name of the personauthorized to remove it, and also the names of the places from^nd to which the arrack is to be removed. Now, this permit didnot j contain the name of the owner, nor the name of the place to-which it was intended to be removed. It seems to me, therefore,that the permit can be of no protection to any person. Theconviction must, therefore, be affirmed.
All throughout I have assumed that the evidence given for thedefence is true, although the Magistrate was not inclined to>believe it. I think that, even if t-hat evidence be believed, theconviction is right.
1901,
December 11.Bomnot, C.J.